Daphine Kabagambe Agaba Post Doctoral Researcher School of Public Health

1. The Role of the Health Ombud in ensuring Accountability in the Health Care Setting : The Life Esidimeni Example Daphine Kabagambe Agaba Post Doctoral Researcher School of Public Health University of the Western Cape 28th June 2018

2. Background • The effects of SA’s apartheid past are still evident in the health sector. • Inequalities and disparities in access to health and health care still exist based on race, geographical location and other factors. • Manifested in a deeply divided health system where the wealthy and middle class are covered by private health insurance while the majority are reliant on a poorly resourced public health system. • In 2014 it was estimated that annual per capita expenditure on health ranged from approximately $ 1400 in the private sector to $ 140 in the public health sector(Marten R) • Despite being the sole health care provider for approx. 84% of the population,abt 30% of doctors served the public sector with 70% working in the private sector which serves only about 16% of the population

3. Background • 25% un-ensured incurred out of pocket expenses for private health care (Mayosi BM and Benatar SR:2014). • Some state hospitals were also found to be in a dismal state xterized by; infrastructure breakdown, mismanagement of funds, underfunding, neglect/abandonment with some provinces such as Eastern Cape, Kwazulu Natal worse off than others. • Nonetheless SA has a progressive Constitution that provides for health and health care. Various legislation and programmes have been adopted ; National Health Act (2004), Mental Health Care Act (2002), an ambitious anti retroviral programme, Choice on Termination Programme Act (1996) among others.

4. Background • Despite these and other interventions ,SA’s health system is still plagued by a series of issues; • Large proportions of the population are still very impoverished thus unable to access quality health care, • Even though mortality form HIV/AIDs has decreased over the years, the HIV numbers are still high (a prevalence of 12.7% was reported in 2016), • TB, high maternal, neonatal and child mortality and an increase in non-communicable diseases, • Failure in health leadership characterised by mismanagement at provincial and district level and insufficient number of health service providers in public health facilities

5. Theoretical underpinning of Accountability • A series of measures are being undertaken by a series of actors to improve the health care system. One of the vital ones is the enhancement of accountability mechanisms • Accountability should be viewed as a complete process.It is a set of standards upon which performance is measured, where there is information and justification for the actions taken(answerability) and sanctioning or recognizing behaviour(enforcement) where appropriate (Joshi and Houtzager:2012 ,Schedler :1999) • Accountability allows for individuals and communities to understand how those with responsibilities have implemented their duties, allows those with power to explain and justify the actions they have taken and where shortcomings have been identified, accountability calls for them to be redressed (Hunt P and Backman:2008)

6. Theoretical underpinning • Its success is dependent on the realization of the right to access information, and the freedom to form and belong to associations • Accountability can be exercised at various interrelated levels; legal, political, administrative, social • Accountability mechanisms are vital for improving the management of available human, financial and technical services. • At its core accountability, constrains/limits power with the aim of preventing its misuse or abuse through tracking actions of those in power and sanctioning misuse of power.

7. Theoretical underpinning • Holding power accountable also puts into consideration that harms/evils of power cannot be fully mitigated but its arbitrariness can be mitigated (Schedler: 1999). • Accountability is vital for the realization of the right to health. Should have a transformative effect by operationalizing human rights norms/principles for health practitioners, planners, development partners and health service users (Yamin :2010) • Not merely a data collection mechanism. Results obtained from the process should contribute to improving quality of care and overall performance of health systems

8. Powers and Duties of the Health Ombudsman • In order to contribute to the realization of health accountability, South Africa established the office of the Health Ombudsman • The ombud is empowered with receiving verbal and written complaints, investigating and disposing of complaints in an economical, fair and expeditious manner • Established by the National Health Amendment Act of 2013 under the Office of Health Standards Compliance (OHSC) to ensure quality of health services as well as ensuring certification of all health facilities in the country • In june 2016, the first health Ombud (Professor Malegapuru William Makgoba) was appointed by the Minister of Health • Prompted by the significant increase in claims of medical negligence as well as the mishandling of claims by litigants which resulted in Government spending huge amounts of money on compensation

9. Duties of the Health Ombud • Principally responsible for investigating and disposing complaints from the public concerning both public and private health facilities in a fair, expeditious and economical manner. • health ombud is also required to; • A) report his findings and recommendations back to the complainant as well as the health facility; • B) to make recommendations for action to the CEO of the OHSC who must then ensure that these are implemented; • C) to conduct a thorough investigation with the assistance of the OHSC staff by; obtaining affidavits/statements from relevant people, require any person to appear before them for questioning, order any person to produce evidence

10. Accountability/ Health Ombudsman • The minister stressed that in addition to the ombud’s role of receiving and addressing complaints, effective enforcement/remedial measures would be undertaken to deal with complaints. • The idea of a health Ombud is quite novel on the African continent . • Elsewhere countries like England, New Zealand and Australia have health ombuds who are often referred to as health complaints Commissioners • England (1973), New Zealand- health and disability commissioner(1994) while Australian States from the 1980’s going forward. • Ombudsman English translation from the Swedish word umbuds man meaning ‘representative’

11. Enforcement/ answerability • In practise, accountability entities tend to either lean towards the answerability aspect or rather towards the enforcement/remedial aspect. • Human rights commissions and bodies often capitalize on answerability or the softer aspect of accountability such as the exposure of human rights violations. • The powers given to the ‘health Ombud’ by the National Health Amendment Act are to a large extent, ‘recommendatory’. • The Act empowers the ombud to submit a report, after completing the investigation, together with his/her findings and recommendations on suitable action to the Chief Executive Officer (CEO). • In case of failure by the CEO to address the recommendations, the Ombud may ask for the Minister’s intervention.

12. Enforcement/answerability • Therefore, enforcement/remedial powers of the ombud are dependent on an external source. This may pose a challenge if the CEO or the Minister do not prioritise the recommendations. • In countries like Australia (Queensland), the Ombud is empowered with enforcement powers for certain cases-Health Ombudsman Act 2013. • In other countries like New Zealand and England, as the roles of the health ombuds have evolved, their investigative and disciplinary powers have also been strengthened through legislation. • It is hoped that the health ombud role in South Africa is continuously strengthened to go beyond a recommendatory one to include a strong enforcement/remedial role.

13. Individualized Nature of the Complaints The SA Ombud is empowered by the Act to receive a written, verbal complaint pertaining to an act or omission by the owner or an employee of a health establishment or any facility charged with providing health services. • The Ombud is then required to deal with the Complaint fairly or expeditiously and after concluding the investigation, inform the complainant of his or her findings. • For the most part, this is an individualised process involving the ombud, complainant and the health establishment. • In commenting on New Zealand’s complaints system, Paterson points out “an ombudsman is a little more than the proverbial ambulance at the bottom of the cliff if all that is achieved is retrospective analysis of how and why a patient’s rights were breached”

14. Individualized Nature of Complaints • He questions how the resolving of individual complaints can be exploited to enhance service delivery at a broader level. • He proposes the utilization of the reports produced by the Ombud for advocacy purposes and educational purposes. This makes the role of CSOs, media even more vital. • In the case of South Africa, in 2016, the MEC for Health in the Gauteng Provincial Legislature (Qedani Mahlangu) announced that 36 mentally ill patients had died. • This led to national and international media interest and coverage of the cases as well as public outrage prompting the Minister of Health, Aaron Motsoaledi to request the newly appointed Ombud to conduct comprehensive investigation into the conditions leading to the deaths of mentally ill patients in the Gauteng Province and give advice on the way forward.

15. Significance of the Health Ombud’s Findings • After conducting thorough investigations, the Ombud produced a detailed report titled “The circumstances surrounding the deaths of mentally ill patients: Gauteng Province”. • The Ombudsman findings indicted the Gauteng Department of Health for failing to adhere to proper procedures and constitutional obligations. • The Ombudsman made some very useful recommendations to void similar incidents in future. These included • a) overhauling of the health care system for mentally ill-patients, • b) the need for disciplinary actions against government officials for their complicity leading to the deaths of over 100 patients and the need for the government to embark on arbitration with member of the affected families in order to assuage their losses.

16. Significance of the Health Ombud’s Findings • The government accepted the recommendations and promised to look into some of the concerns raised by the Ombudsman. • In a press conference held on 14 February 2017, the Minster of Health Aaron Motsoaledi highlighted the steps that are being taken to ensure the full implementation of the Health Ombudsman. • After the release of the report, patients were transferred out of NGOS back to better equipped facilities such as Clinix Selby Park, Life Esidimeni Baneng Care Centre. • Recommendation 17 of the Health Ombud report set out that there should be an ‘alternative dispute resolution process’ aimed at determining redress mechanisms and compensation.

17. Significance of the Health Ombud’s Findings • It was emphasized that the process should be led by a credible prominent South African with an established track record. • This led to a comprehensive arbitration process that ended in the vindication of those who died and those that suffered torture as a result of the move from Life Esidimeni. • On 19 March 2018, the arbitrator (Justice Dikgang Moseneke) delivered a very elaborate and stinging arbitration award. He eloquently set out the egregious rights violations that had occurred as a result of the Marathon project. • These included; torture, cruel inhuman and degrading treatment, the right to life, right to human dignity reminiscent of the apartheid regime, right to health and its underlying determinants (food, water).

18. Significance of the Health Ombud’s Findings • He emphasized that the public officials behind the project had acted irrationally, abused political power. • That the project was characterized by mismanagement, secrecy, lack of accountability and transparency, ulterior motives that were still unknown all of which led to the death of 144 mental health care users, the suffering and torture of 1418 and 44 whose whereabouts were still unknown. • He awarded the claimants constitutional damages in addition to what the Government had offered leading to a total of 1.2 million rand which were to be paid not later than 3 months after the award. • Thus the Health Ombud’s report was instrumental in producing a chain of events leading to adequate redress and compensation of the mental health care users who had suffered as a result of the project including the families of those who had died.

19. Significance of the Health Ombud’s Findings • The release of the report by the Ombud led to a series of actions to not only prevent the recurrence of the deaths but also to change/improve health systems pertaining to mentally ill patients. • However, its vital to note that public interest(including civil society) and outrage spurred on by media coverage prompted the investigation. • The question that arises here is what happens with cases that are not picked up by the media or the public, will these remain ‘individualised’ to the complainants and the health establishments involved? This remains to be seen as the ‘office of the health ombud’ is still new and still establishing its mode of operation.

20. Significance of the ombud’s findings • It is vital that accountability entities such as the office of the health ombud do not work in isolation. • Accountability should not be an isolated/individualised activity but rather an integrated one ultimately aimed at improving quality of health care for health consumers as well as health systems’ strengthening. • In order to enhance the Ombud’s informative/educational role, the National Health Amendment Act also requires the Ombud to prepare a report on the functions and affairs of the Ombud and hand it over to the Minister for tabling in Parliament. • The Life Esidimeni case was a good example as it went beyond individual issues to systemic issues facing mental health care users in South Africa.

21. Conclusion • Accountability mechanisms in the health sector should aim at addressing systemic failures that undermine individuals’ rights to enjoy the right to health. • The appointment of a ‘health ombud’ is a step in the right direction. • The remedial /enforcement mechanism aspect of the health ombud should be continuously strengthened. • Cooperation from the various concerned state departments in order to respond to the findings and remedy the shortcomings raised by the office of the ombud. This was demonstrated in the life esidimeni case. • It also entails escalating the findings/issues from the individual level to a broader one where systemic changes are undertaken to respond to the findings as well as the recommendations.