Speaking at Medical Protection’s annual flagship conference – Ethics For All 2021: Healthcare Practitioners Conference – this week, Dr Yash Naidoo discusses the nature of a patient complaint, what to expect if the complaint goes to the regulator and how you should try to resolve an issue before a complaint escalates.
Healthcare professionals dedicate a significant portion of their lives training for, and practising in the care of other humans. With that, comes a level of autonomy in our professional conduct, always guided by the best interests of our patients. Professionals are responsible for setting their own high standards and ensuring that their peers uphold those standards and the reputation of the profession.
When a complaint against us is lodged with our professional regulator, the Health Professions Council of South Africa (HPCSA), it tends to strike at the core of our being. It is an affront to our professional values and everything we work so hard for daily. Hanging over our heads like the proverbial Sword of Damocles, the potential consequences of a complaint can leave us with sleepless nights. You see, the HPCSA complaint takes us on a journey. It is a mental journey, and a perilous one which should be avoided if at all possible.
Let us pause to ponder what sparks a complaint in the first place. Why do patients complain? There is a common misconception that patients these days are simply more inclined to complain, or do so because they seek financial gain. The volumes of complaints may have risen in recent times, but I suspect that it is simply a result of an increased emphasis on patient autonomy, patient empowerment and access to resources which enables them to voice their concerns more easily.
Having been exposed to HPCSA complaints daily through my role at Medical Protection, patients often complain when their experience does not align with their expectations.
Whenever we use a messaging app on our phones, we rarely praise the brilliant software engineers for their technical excellence. But as soon as that app goes down and stops working, we leave bad reviews and may even air our views on another platform.
A similar principle applies in healthcare. For example, most patients will neither know enough nor appreciate the skill required for a particular procedure. They will not marvel at the fact that you have diagnosed a rare condition. They expect you to resolve or manage their health condition. But the moment their expectations (whether reasonable or not) are unmet, there is the potential for a complaint. And this is what sets us off on the journey of the HPCSA complaint.
How are complaints managed?
The HPCSA make it easy for patients to lodge a formal complaint. It must then sift out the minor complaints, and direct them to the office of the Ombudsman. Minor complaints involve matters such as billing issues, allegations of poor communication and failures by practitioners to disclose medical records to patients.
The Ombudsman would ask for an explanation by the practitioner, and then mediate the dispute with a view to resolving the matter amicably and efficiently. After the mediation process, the Ombudsman will make a determination (for example, Dr X will give the patient copies of her records), and the parties can either choose to abide by the determination or not. If there is no consensus, the matter must progress to a formal complaint process. Whatever is discussed and shared with the Ombudsman is confidential and may not be used later on. This is to encourage openness, and ultimately dispute resolution.
If the complaint is more serious (or if the Ombudsman’s process fails), the formal complaint procedure kicks off. A formal letter of explanation needs to be submitted, along with any supporting documents. The HPCSA will consider this and either accept the explanation and close the case, or charge the practitioner for unprofessional conduct. In some cases, it calls the practitioner to a roundtable meeting before deciding, which can be intimidating. If the transgression is minor, the HPCSA may sanction the practitioner with a caution, reprimand, or a fine. But if the transgression is not minor, or if the practitioner does not accept the sanction imposed for a minor transgression, a formal professional conduct inquiry would follow. Sometimes, there is an option to avoid an inquiry by paying an admission of guilt fine.
Before the inquiry begins, there would be a pre-inquiry meeting between the practitioner’s legal team and the HPCSA prosecutor where matters such as pleadings and the exchanging of expert reports are discussed. The practitioner’s legal team would also consult with the practitioner and their expert witnesses to prepare for the inquiry. This is costly and time-consuming.
When a matter proceeds to a formal inquiry, that is when costs – money and time – start to escalate. Think of the inquiry as you would a typical courtroom matter on television. The complainant is represented by the HPCSA’s pro forma complainant (prosecutor), and the practitioner is the respondent who may have their own legal representation. Each party can call witnesses. The inquiry itself can take a day or more – depending on the number of witnesses and the complexity of the matter.
Each party’s witnesses can give evidence at the inquiry and each party can cross examine the other. At the conclusion, the HPCSA’s Professional Conduct Committee makes its finding.
If the HPCSA finds the practitioner guilty, it must decide on what penalty to impose. The prosecutor can lead evidence about previous convictions and address the committee on proposed penalties. The practitioner’s legal team will then lead evidence in mitigation. After deliberation, the HPCSA would inform the practitioner of the penalty or penalties imposed. These can range from the minor – such as a caution and reprimand – to fines which can total hundreds of thousands of rand (and which, being punitive in nature, are generally not covered by a practitioner’s defence organisation or professional indemnity insurer), to the most severe being suspension from practice or removal from the register.
Sadly, this journey can be hauntingly slow. The process is notoriously riddled with delays. I am managing a matter which has been 10 years in the running and has not yet reached the formal inquiry stage. Ten years of having a dark cloud hanging over one’s professional career and livelihood. And that is not taking into account the fact that there can be appeals both internally to the HPCSA’s appeal committee, or externally to the courts.
Accessible complaints and feedback process
The takeaway should be this: we should welcome complaints. They help us improve our service to patients. They should be taken seriously and addressed promptly. Encourage feedback from patients and have an easily accessible complaints process at your practice.
Often the regulator is approached simply because the patient felt like they had nowhere else to go. And when you get feedback, try to deal with it constructively and in good faith. This will prevent patients from resorting to the regulator. These are small steps which we can take to avoid being hauled on the journey of the HPCSA complaint.
And if you do receive a formal HPCSA complaint, remember that this comes with the territory of being a healthcare professional. Even the most skilled and qualified practitioners receive complaints. After all, it is more often not about the quality of treatment, but the experience of the patient and their expectations, which triggers the complaint.
Remain calm, and contact Medical Protection or your medical defence organisation, as soon as possible for support. The support we provide goes beyond protecting you against complaints and claims. Medical Protection also offers counselling to any members experiencing work-related stress, or stress that they feel could impact their practice.
Dr Yash Naidoo, Case Manager, Medical Protection