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Annual Report of the Ombudsman 2005

Chapter 2: The Ombudsman and the Health Sector

The Ombudsman and the Health Service Sector

I have decided to devote this chapter to the health sector in view of a range of significant recent and forthcoming developments in that sector which impact not only on the public and health service workers but also on the work of my Office. I have also included details of a number of cases of interest which I dealt with in 2005.

HEALTH SERVICE EXECUTIVE -THEMATIC REPORT

The year 2005 coincided with, perhaps, the most fundamental reform of the Irish health services since the foundation of the State; the development of a single unified national public health service. I decided to mark this new development by way of a review of my Office’s experience of dealing with complaints in the public health and personal social services sector. I approached this review in the context of Quality and Fairness, the National Health Strategy. I share the vision and desire of that strategy to achieve a health system that supports and empowers the individual to achieve full health potential, that is available, that is fair and is one in which the individual can have trust and where the views of the individual will be taken into account.

My annual reports detail the myriad ways in which my Office has impacted on the lives of ordinary individuals who have had cause to complain about our health services; families seeking answers from hospitals about the care of their loved ones (particularly where death has occurred), older people seeking affordable care to which they have an entitlement, parents seeking allowances for their seriously disabled children, querying the lack of health services for their children, or applying for medical cards or health related personal social services. The potentially devastating impact of such shortcomings in the health services has been brought home to everyone through the ongoing nursing home debacle, which emanated from a long running failure to acknowledge the illegality of actions which raised charges on patients in public nursing homes and other institutions.

Of no less importance is the role of my Office in helping those same service providers to improve their services by pointing out mistakes and unfair practices and by guiding them towards a better way of delivering public health care. A point often made to me by complainants is that the service providers should learn from their mistakes so as to ensure that other people do not experience similar problems. Over the years my Office has engaged with the agencies in the public health services in developing better quality decision making in the delivery of their services to the public. My staff engaged with the former health boards, and specific professional groups, in seminars and training exercises on the issues which are of importance to me in the examination of complaints, principles of good administration, best practice for public servants, the rights of users of the health service and the management of complaints. The emphasis in all of these interactions was always positive i.e. how to improve the quality of the health service delivered. This educative role casts the Ombudsman in the role of a Òcritical friendÓ and I look forward to the further development of this role with the Health Service Executive (HSE) and the other agencies providing public health services.

I saw the opportunity to develop this function further by way of highlighting, in a special report, issues for the attention of the HSE based on the experience of my Office developed in the course of the examination of complaints about the health service. My objective in this report is not simply to focus on the failings identified, but also on the learning that I wanted to highlight for the HSE viz. an understanding of the concept of maladministration, the importance of good record keeping, particularly medical and nursing records, the importance of good communications between medical, nursing and administrative staff and between healthcare staff, patients and their families, the need to acknowledge that things do go wrong and when they do, that staff are empowered to resolve the problem as close as possible to the point of grievance and the need to focus on the rights of patients, particularly the right to safe treatment.

One of the most important features of this Report is a Statement of Best Practice for the health service in dealing with patients which I have developed from my Office’s experience of dealing with complaints against those hospitals that were administered by the former health boards. The statement also takes account of the ethical guidelines published by the Medical Council and the Code of Professional Conduct published by An Bord Altranais. Together with the Ombudsman Act, I intend to use this Statement as a framework in my examination of complaints relating to public healthcare. I hope that the Statement will be embraced positively by all health agencies so that it becomes a living reality for all patients.

My Report to the HSE was published in May 2006 and is available on my Office’s website [www.ombudsman.ie].

Health Service Executive: North Western Area - Investigation Report on Sligo General Hospital

In 2005, I published an investigation report arising from a complaint which I received from the members of a family, whose father died in January 2000, two days after he had been admitted to Sligo General Hospital.

The report, which may be viewed on my Office’s website [www.ombudsman.ie], deals with two main issues 1) shortcomings in the standard of care and attention that the hospital afforded to the patient, and 2) the inadequate manner in which the hospital dealt with the family’s subsequent complaint in relation to the standard of care and attention.

I am very keen to ensure that patients in public hospitals are treated with dignity, respect and sensitivity, and that complaints from patients or their families are handled in a proper, fair and impartial manner. This report provides answers to many of the questions raised by the family following the death of their father while in hospital care, and criticises the manner in which the hospital dealt with their subsequent complaint.

The report contains a series of recommendations, all of which were accepted by the hospital and the former North Western Health Board, aimed at improving standards of care and the procedures for dealing with complaints in the hospital.

A point often made by complainants is that hospitals should learn from their past mistakes so as to ensure that other families do not experience similar problems. It is in this context that I decided to publish this report, so that it would be available to the public, in general, and to the newly formed HSE, in particular. I hope that the issues raised and lessons learned from this complaint will be taken on board by the wider public hospital system.

DISABILITY ACT 2005

Among other things, the Disability Act 2005 requires public bodies to ensure that public buildings and services are accessible to people with disabilities. With effect from 31 December 2005 the Act extended my jurisdiction in that my Office can now deal with complaints in relation to the failure to provide such access in accordance with the legislation. In addition, a number of Government Departments are required to prepare sectoral plans, which must give information about the measures designed to bring about the delivery of services to the disabled as envisaged in the Act, within established time frames. I can examine complaints about failures in this area also.

I have committed resources in anticipation of the handling of complaints under the Act, and in this regard, procedures and systems are currently being put in place to ensure that this can be done effectively. My officials are also liaising with the six Government Departments which are required to prepare sectoral plans under the Act, in relation to the complaints procedures which the plans must contain. The six Departments in question are, the Department of Health and Children, the Department of Social and Family Affairs, the Department of Transport, the Department of Communications, Marine and Natural Resources, the Department of the Environment, Heritage and Local Government and the Department of Enterprise, Trade and Employment. I intend to include a section on my role under the Disability Act on my Office’s website, and a new information leaflet is also being prepared. When all this preparatory work has been finalised, I will then embark on a programme of promotional activities to raise awareness about my role under the Disability Act.

HEALTH ACT 2004

The enactment of the Health Act 2004, is an important landmark in the development of the Office of the Ombudsman. Since 1985 my Office’s jurisdiction was limited to the administrative actions of the health boards and those hospitals which came under their direct control. The new legislation makes provision for the establishment of a statutory complaints procedure in the health service, not only for those services delivered by the Health Service Executive (HSE) but also for those agencies providing health or personal social services on behalf of the HSE, or who receive assistance from the HSE towards the provision of services similar or ancillary to a service that the HSE may provide.

The net outcome of this development will be that the major hospitals in the Dublin area, the so called Public Voluntary Hospitals, will come within my jurisdiction, as will other similar hospitals in the rest of the country, together with institutions, nationwide, providing services on behalf of the HSE to the intellectually disabled and a wide range of agencies receiving assistance from the HSE towards the provision of a health or personal social service. As with the disability legislation, I have committed resources in anticipation of the handling of complaints under these new Regulations and, in this regard, procedures and systems are currently being put in place to ensure that this can be done effectively. My officials will also be liaising with these bodies in relation to their complaints procedures. I also intend to embark on a programme of promotional activities to raise awareness about my role under the new statutory complaints procedures once the Regulations are enacted.

NURSING HOME CHARGES

The Health (Repayment Scheme) Bill which is expected to be enacted in 2006 has made provision for a scheme to repay the illegally raised health charges from fully eligible persons in publicly funded long term residential care. The Bill also regulates patient private property accounts by way of the introduction of a statutory framework to protect patients’ interests. This is of some importance in the light of the large sums which may be placed in those accounts. As with other aspects of the public health services the role of the Ombudsman in relation to these repayments is to protect individuals from unfair, unsound and unjust actions on the part of those who are entrusted to make these refunds. I anticipate that I will receive complaints about the governance of the scheme, the specification of forms, priority of living claimants, disputed records, the amount of repayments etc. Given the vulnerable nature of the individuals who will be eligible to make an application under the scheme I will seek to ensure that they are afforded the maximum protection possible in this regard and easy access to an alternative dispute resolution mechanism in the form of my Office. In carrying out this role, I will seek to ensure that these individuals are treated with dignity, respect and sensitivity, and that complaints from individuals or their families are handled in a proper, fair and impartial manner.

 HEALTH SERVICE CASES OF INTEREST DEALT WITH IN 2005

Health Service Executive: Western Area - Complaint About Post-Operative Care

This case concerned the way in which a patient’s complaint about her post-operative care in hospital, following surgery for breast cancer, was dealt with by the Health Service Executive (HSE), Western Area. Her initial letter of complaint to the HSE concerned issues specifically related to her hospital care and treatment. The complainant said she had not been seen by either the surgeon or his senior team as a patient for a period of five days after her operation. The surgeon commented that the complainant had been seen every day by his senior team and that he had been kept informed of her progress, which had been quite satisfactory. He suggested that it might be better if he, and the hospital’s Director of Nursing, met with the complainant so that she could explain her reasons as to why she was not happy about her treatment and care during her hospital stay.

The complainant was advised that a meeting was proposed to discuss her complaint and she was asked whether she would be available to attend. She replied that she wanted a written reply to the queries she had raised and that she would consider a meeting at a future date when she received this reply. Following receipt of this response the surgeon acknowledged that her operation took place on a Friday and his team was not on call for the following weekend. However, he asserted that instructions to the on-call team were that, in the event of problems arising, his team could be contacted by mobile phone, and that the complainant’s recovery had been good and she did not encounter any difficulties whatsoever. He indicated that his team made ward rounds every morning, got patient details and reported to him if there were any problems. There were times when he and the team were busy in theatre, outpatients clinics and have other engagements, so it would not be surprising that the complainant had not been seen for a few days after surgery, nevertheless, he would have been kept informed of a patient’s progress all of the time.

These comments were conveyed to the complainant. She remained dissatisfied with the response and addressed a complaint on the matter to the Chief Executive Officer (CEO) of the Health Service Executive (HSE), Western Area. The surgeon was again asked for his further comments on the complaint and he referred to his previous observations on the matter and reiterated that he was still prepared to meet with the complainant to discuss her case. The HSE then wrote to the complainant outlining the points made by the surgeon. The complainant was unhappy with this response and contacted my Office.

It is my view that for a complaints system to be effective it should be impartial, robust, thorough and retain the confidence of both the complainant and the staff who are the subject of the complaint at all stages. From my examination of this complaint it seemed to me that the approach taken - i.e. outlining the outcome of its initial investigation and arranging a meeting without consulting with her and seeking her agreement - did not suggest that the process could have been viewed, from the perspective of the complainant, as impartial. There was no evidence that the patient/hospital records had been examined, or that other personnel involved in the complainant’s post-operative care had been interviewed either in the investigation or re-investigation of the complaint. In fact, it was only after she had contacted the HSE’s CEO that the records were examined. My staff also examined these records, and it appeared that there were some direct conflicts of evidence in relation to the attendance by the surgical team which could only be reconciled by the HSE’s investigation team conducting its own examination of the issues, which would include interviews with the relevant staff.

I wrote to the HSE outlining my views on the case. The HSE subsequently wrote to the complainant stating that having reviewed the case it was evident that its investigation was not as thorough or comprehensive as it ought to have been. The HSE apologised for the hurt, inconvenience and hardship caused by the handling of her complaint and fully accepted that the way in which the matter was handled was inappropriate. The HSE went on to say that it had learned many lessons as a result of the complaint and had since revised its local complaints policy and had put the lessons learned into action. The complainant was satisfied with this outcome.

Health Service Executive: Midland Area - Arrears of Diet Supplement Payment Refused

I received a complaint from a man who had been attending the local diabetic clinic in Tullamore General Hospital since 1993. This man had not been advised at the clinic of his possible entitlement to Diet Supplement. This supplement is a payment which is made in addition to the basic weekly income payment payable under the Supplementary Welfare Allowance Regulations (SWA). A person may be entitled to a supplement for a prescribed diet (either a low cost or a higher cost diet) by virtue of having a specified medical condition. In this case, the complainant had been placed on a low cost diet by his doctor.

My complainant only became aware of the existence of the supplement through his Community Welfare Office in 2003. He applied for and received the diet supplement in May 2003 which was backdated initially for three months with a further three months arrears being granted on appeal. This six months backdating is the maximum statutory backdating that can be allowed when there is good cause for the delay in making an application under the SWA. However, he felt that he should have received further arrears given that he had suffered from diabetes since 1992 and would have qualified for the supplement on income grounds had he been advised to make an application at that time.

Over the years many complaints have been received by my Office from individuals who were unaware of the existence of particular entitlements, most only became aware through a third party. While their applications were approved, as the qualifying criteria were met, arrears were refused on the basis that payment could only be made from the date of application. Complainants argued that, despite contact with the health authorities, no indication was ever given that such an allowance existed. They had, as a consequence, lost the opportunity to apply for the allowance from an earlier date at which they might well have been eligible.

The general public do not have the same level of familiarity with schemes and services as health service staff. It is important, therefore, to ensure that there are appropriate public information systems in place to advise individuals of their possible entitlements. This is particularly so where the Health Service Executive (HSE) is engaging professionally with disabled or vulnerable individuals. Such individuals should be given prompt and comprehensive information about specific allowances and possible entitlements.

I was concerned that the complainant, despite regular contact with the diabetic clinic since 1993, had not been advised of the availability of Diet Supplement and, therefore, had no opportunity to make an application at an earlier date. At my request the HSE, Midland Area, reviewed the case and an ex gratia payment was made to the complainant of Û1,500 as compensation. In addition, information leaflets were published for distribution widely throughout hospitals, health centres, diabetic clinics, and to professionals working with patients such as public health nurses, general practitioners and practice nurses, so that other people could be informed of their possible entitlements.

The core function of my Office in relation to the HSE is to ensure that individuals availing of the public health service are treated with dignity, respect and sensitivity, and that complaints from individuals or their families are handled in a proper, fair and impartial manner. However, of no less importance is the role of my Office in helping those same service providers to improve their services by pointing out mistakes and unfair practices and by guiding them towards a better way of delivering public health care. The outcome of this complaint is a very good example of how an individual complaint can generate a learning process out of which improvements can be introduced to prevent similar problems occurring in the future. I would like to acknowledge the actions of the HSE in this regard.

Health Service Executive: Eastern Region, East Coast Area - Contract Bed Withdrawn

A woman contacted me on behalf of her elderly mother who was paralysed on one side, suffered from impaired vision and was incontinent. Her father had been caring for her mother at home until he himself had became ill with Alzheimer’s Disease and had to be hospitalised. Her mother, who was a medical card holder, required nursing home care and the Health Service Executive (HSE), Eastern Region, East Coast Area, awarded her a contract bed in a private nursing home as there were no suitable public beds available at the time. Unfortunately, the woman’s father died and shortly afterwards the health board decided to withdraw the contract bed from her mother, and to assess her for nursing home subvention. This assessment found the elderly woman to have means in excess of the limit for subvention due to the fact that she was the owner of her own home, and an imputed income on the estimated value of the family home was taken into consideration. The complainant made the point that her mother had no savings or life insurance of any kind and no account of outstanding loans or funeral expenses were taken into account when she was deemed ineligible for subvention. The family was consequently placed under severe financial strain in endeavouring to meet the private nursing home costs.

Following enquiries from my Office, the HSE indicated that the awarding of the contract bed had been conditional on an assessment of her means being carried out. However, on viewing the records of the correspondence between the HSE and the family, I could find nothing to suggest that the contract bed was made conditional on such an assessment. I asked the HSE to review its decision as I felt it was unfair to withdraw the contract bed from the elderly woman immediately following the demise of her husband, and having held an expectation that the contract bed which she had been awarded was indefinite. The HSE agreed to restore the contract bed to the complainant’s mother and to pay the outstanding costs to the private nursing home from the date the contract bed had been withdrawn.

Health Service Executive: Eastern Region, Northern Area and Social Welfare Appeals Office - Rent Allowance Refused

In this case the complainant’s son was a full time student. He suffered from a serious neurological disease and was in receipt of Disability Allowance. He attended college and lived on campus. He had applied for a rent allowance, which is payable under the supplementary welfare allowance scheme, to assist with the cost of his campus accommodation when he had started attending college in 1999. However, his application was refused on the grounds that he was a full time student. This was in accordance with Section 172 (1) of the Social Welfare (Consolidation) Act 1995 which states, "a person shall not be entitled to receive supplementary welfare allowance while attending a course of study". He applied again in 2003 but was again refused the allowance.

The supplementary welfare allowance scheme is administered by the Health Service Executive (HSE) on behalf of the Minister for Social and Family Affairs. When the allowance was refused in 2003, by the then Northern Area Health Board, he appealed the decision to the Customer Services, Information and Appeals Office of the Health Board and when his appeal was refused, he appealed to the Social Welfare Appeals Office. His case was considered under Section 172 (3) Social Welfare (Consolidation) Act 1995, which provides that, notwithstanding the terms of Section 172 (1), supplementary allowance may be payable, in a case in which exceptional circumstances are deemed to exist. In connection with his appeal he attended an oral hearing but the appeal was disallowed on the grounds that the Appeals Officer was not satisfied that it had been shown that exceptional circumstances existed which would warrant the payment of a rent supplement.

From my examination of the case it appeared to me that the basis for the Appeals Officer’s decision was open to question. I felt that there was evidence to suggest that there were exceptional circumstances applying in this case and that the applicant’s own personal circumstances had deteriorated since 1999. Some of the reasons for this conclusion included the following:

• he suffered from a disease which of its nature was progressive and degenerative and, therefore, his health circumstances could only have deteriorated;
• he had developed other medical conditions in the meantime;
• his parents retired in the summer of 2000 and had to take out a credit union loan to assist with his education.

Accordingly, I wrote to the Chief Appeals Officer and suggested that, in light of the evidence outlined above, the interpretation of the Appeals Officer, with regard to what constituted exceptional circumstances and a deterioration in the applicant’s own personal situation at the time he commenced his final year of study, was open to question. I therefore asked the Chief Appeals Officer to reconsider the application.

Having reconsidered the application the Chief Appeals Officer advised me that he had decided to accept that there was sufficient change in the applicant’s circumstances in his final year at college to warrant the application of the exceptional circumstances provision. Accordingly, he decided, given the applicant’s unique circumstances, to overturn the Appeals Officer’s decision. As a consequence the complainant’s son became entitled to rent allowance at the appropriate rate in respect of his college accommodation during his final year.

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