(October 2016 Version)
Role of Ombudsman
Normally in examining complaints the Ombudsman seeks to determine whether the administrative actions of the body under examination have adversely affected an identifiable person and whether those actions amounted to maladministration. If this turns out to be the case the Ombudsman may recommend redress to remedy, mitigate or alter the adverse affect. In some cases the complaint is presented to the Ombudsman on behalf of complainants and in light of this the Office needs to encourage and facilitate such complaints with a consistent, straightforward and clear approach on the issue of consent while at the same time adhering to our obligations under Data Protection Acts. This reflects our aim to be as accessible as possible to all complainants.
In all cases it is a matter for the Ombudsman to decide on the merits of the case and, if warranted, what constitutes appropriate redress in any given case.
Examples of Complainants being Represented by Third Parties
Some common examples of situations where complainants have others present their complaints on their behalf are as follows:
- Public Representatives acting on behalf of constituents;
- Solicitors acting on behalf of clients;
- Tax agents or accountants submitting revenue complaints on behalf of clients;
- Teagasc Advisors/Planners submitting complaints on behalf of farmers;
- Parents submitting complaints on behalf of their children;
- Relatives of the complainant submitting complaints;
- Next of kin submitting complaints in relation to deceased persons;
- Relatives or others submitting complaints on behalf of a person who does not have the capacity to submit the complaint themselves.
- Advocates (e.g. health advocates or Citizens Information advocates) acting for complainants. Under the Mental Health Act 2001 there is statutory provision for legal advocacy for people with mental illness. The Disability Act 2005 provides an entitlement to advocacy for persons with a disability while the Citizens Information Act 2007 provides for the establishment of a Personal Advocacy Service. There are a number of references in HIQA Standards to the role of advocacy and the need to make provision for service users to have access to independent advocates. In his Investigation Report Learning to Get Better the Ombudsman recommended that support should be given for the establishment of an independent advocacy service throughout the acute hospital sector. There are a number of NGOs such as Age Action and Sage which provide non-statutory advocacy services to particular groups of people.
Why is Consent an Issue of Concern?
We need to properly verify, where the person adversely affected has capacity to make the decision themselves, that he/she wants a third party to act on their behalf with the Office.
We need to be mindful that-
- An unauthorised representative could possibly agree an outcome which is not to the satisfaction of the person adversely affected.
- There is the possibility that the representative of the complainant may be receiving payment from the complainant whereas the services of this Office are free.
- During the course of the examination of the complaint we may be processing personal data and we may be revealing private and confidential information about the person who was adversely affected to a third party in breach of the Data Protection Acts.
- On occasion a representative may have the potential to derive financial benefit depending on the outcome of a complaint regarding the person who was adversely affected.
Procedures to be Followed by Caseworkers
1. If a complaint is submitted by a representative, either in person, in writing, on-line or by email with a form of consent attached with it indicating that the representative is authorised to act on behalf of the complainant the office should, nonetheless, follow the procedures as set out at 2 below and get the complainant to sign the office's version of the consent form.
2. Where the Representative has no apparent consent then he/she should be asked to provide full contact details for the complainant, unless already provided. The consent form should issue to the complainant directly and a deadline given for return of the form. The representative should be informed that the complaint examination process cannot proceed without the consent form being received and that we have requested same from the complainant. The representative should also be informed at this stage that, in the event of consent being granted, it may be deemed necessary during the complaint process for the Office to make direct contact with the complainant to obtain additional information, if appropriate.
3. If consent is received then the complaint process can proceed with the final decision letter being sent to the complainant with a copy to the representative. Upon initial receipt of the consent form from the complainant an acknowledgment of receipt should issue to the representative and the complainant.
4. The current policy in relation to the handling of complaints from public representatives (TDs, Senators and Councillors) will continue i.e. we do not require a consent form -we acknowledge complaint to the public representative and complainant; we engage directly with complainant and we copy any decision letter to the public representative at the same time as it issues to the complainant.
5. Complaints submitted by CICs will continue to be dealt with in line with current policy. We accept such complaints, deal directly with the complainant and inform the CIC and the complainant about the outcome.
6. Where a Residents' Association submits a complaint to this Office it may be signed by an individual member of the Association or sometimes by all of some of the members. This Office should channel all correspondence through one individual, normally the Secretary. As with any complaint we normally need to see evidence of adverse affect on an identifiable person or persons. In the context of such complaints the evidence of consent for the complaint can be established by asking the association to provide written evidence of support for the complaint by the association e.g. minutes of a meeting where a motion has been put and agreed by the association or a written statement signed by members. As with any other complaint such complaints are dealt with on their own merits. However, caseworkers should be alert to the possibility that the outcome of such complaints may impact on local people other than members of the association and that there may not be a uniformity of opinion as to the outcome desired locally e.g. a complaint for or against local parking restrictions or a complaint about whether to extinguish a right of way or not.