Context
The Office of the Ombudsman was established under the Ombudsman Act, 1980. The Ombudsman is an independent and non-partisan office holder who oversees public administration, which includes not only the public health service, but also the Civil Service and Local Authorities. The Office deals with specific complaints from the public about administrative injustice and maladministration. It has the power to investigate, report upon, and make recommendations about individual cases and administrative procedures and it seeks solutions to problems by a process of investigation and conciliation. The Ombudsman's authority and influence derive from the fact that she is appointed by the President and reports to the Oireachtas. In dealing with complaints the Office seeks to gather all information relevant to a complaint, including, if necessary, the appropriate files from the body concerned. The Ombudsman ensures that she hears both sides to a dispute. If, in the course of a preliminary examination, she considers the complaint to be justified, she may request the body to review the disputed decision. If warranted, she may initiate an investigation and may make an appropriate recommendation for redress. The Ombudsman is conscious at all times of the need to be impartial, objective and to observe the principles of natural justice.
The core function of the Office in relation to the public health and personal social services is to protect the individuals who avail of those services from unfair, unsound and unjust actions on the part of those who are entrusted to deliver those same services. The Office seeks to ensure that individuals availing of the public health services are treated with dignity, respect and sensitivity, and that complaints from individuals or their families are handled in a proper, fair and impartial manner.
The term maladministration is not used in the Ombudsman Act, 1980. In many ways to define the term would be to limit it. Basically it means "when things go wrong". The Act, however, clearly lists certain actions or inactions, which if they adversely affect someone, may be considered as maladministration.
The list includes actions that are:
(i) taken without proper authority,
(ii) taken on irrelevant grounds,
(iii) the result of negligence or carelessness,
(iv) based on erroneous or incomplete information,
(v) improperly discriminatory,
(vi) based on an undesirable administrative practice, or
(vii) otherwise contrary to fair or sound administration.
The following examples put flesh on these rather abstract criteria by reference to actual cases. They illustrate what happens when things go wrong and identify shortcomings of a very serious nature in a range of health service agencies. The Ombudsman will expect that the new Executive will consider the learning outlined in these examples and the lessons to be learned from future complaints on a systemic basis. The Ombudsman sees this as a fundamental element in the quality of management in the Irish public health system, and one which she will continue to monitor.
Taken without Proper Authority
The classic example of a body acting without proper authority was the decision by the Department of Health and Children and the former health boards (the Boards) to take the income of children into account when assessing the means of their elderly parents seeking a nursing home subvention. The relevant legislation did not make adult children legally liable for parents' hospital or nursing home costs. Neither was there any indication to suggest that any such liability was contemplated by the Oireachtas. The Regulations, which the Boards relied upon, could not impose a liability on adult children which was not explicitly provided for in the primary legislation. Consequently, the practice of determining, and assessing, a level of contribution which an adult son or daughter should be capable of making towards a parent's nursing home costs was improper.
The Ombudsman drew the foregoing to the attention of the Boards and the Department of Health and Children on numerous occasions, culminating in the provision being repealed and thousands of people receiving rebates of amounts collected without proper authority. These were in the main individuals who were not in a position to organise themselves either to take legal action or for political lobbying.
The lesson from this debacle, and the similar debacle arising from the imposition of illegal charges on residents in public nursing homes, and in other institutions, is that rights of individuals availing of the public health services should not be put aside for the sake of administrative convenience or to bolster funding requirements within the service.
Taken on Irrelevant Grounds
The question of which grounds are relevant or irrelevant in any particular decision will vary depending on the individual circumstances of the case under consideration.
The Ombudsman received a complaint about the raising of charges under the Institutional Assistance Regulations, 1954 on a patient in a public nursing home. On examination it transpired that the assessment of charges should have been raised under the Health (Charges for In-Patient Services) Regulations, 1996. As the patient was a medical card holder with a dependent, he was not liable for any charges under these latter Regulations. In the course of the examination an undercurrent was identified in the reluctance of the Board to consider this aspect, which might have been due to the feeling that the patient's family was not looking after him properly e.g. in relation to changes of clothing, footwear, hairdressing etc. However, the question of any value judgement in this context was a consideration that was irrelevant to the decision in relation to the patient's entitlement to subvention. The Board subsequently accepted the case put forward by the Ombudsman and agreed to refund all the charges paid by the patient from the date he had been admitted to the nursing home.
The lesson from this complaint is the vital importance that decisions must be based solely on a consideration of what is relevant to the issue at hand and that factors that are irrelevant, and which have no bearing on the issue, are not taken into account or are allowed to influence the decision.
Improperly Discriminatory
The Ombudsman Act does not contain any definition of the term "improperly discriminatory". At its most basic it means treating people in similar circumstances, equally; that comparable situations must not be treated differently; and that different situations must not be treated in the same way unless such treatment is objectively justified.
The Ombudsman received a complaint from a representative of a support group for parents with autistic children in relation to Domiciliary Care Allowance entitlement. When the complaint was examined it was found that different practices operated within different areas of the Board in relation to the payment of the Allowance. Some members of the support group were awarded the allowance from the date of application. However, other members, living in another area, were awarded the allowance from the date of eligibility, which in some cases was considerably prior to the date of application. In the course of the examination it transpired that the children in the former group had prior involvement with health professionals within the Board in relation to their condition before making the application. However, the parents had not been advised of their possible entitlement to the allowance.
The Ombudsman considered that it was reasonable to expect in cases of this nature, where there had been prior involvement with the Board's professional staff, that the possible entitlement to the Allowance should have been brought to the attention of the parents. This principle had been accepted by all of the Boards on a previous occasion in relation to claims for retrospective payment of the Allowance. In the light of this the Board reviewed all of the applications at issue with arrears paid where appropriate.
Many administrative decisions involve choice between one group or category of persons and another. Such choice of its nature reflects an element of discrimination, but does not, of itself, constitute improper discrimination. It is the element of invidiousness which leads to a discrimination becoming improper. This element occurs if the discrimination bears no reasonable relationship to the difference between the group or category of persons under consideration.
Based on Erroneous or Incomplete Information
The purpose of medical and nursing records is to provide accurate, current, comprehensive and concise information concerning the condition and care of a patient in addition to recording associated observations by nursing and medical staff; to provide a record of any problems that arise and take the appropriate action in response to them; to provide evidence of the medical and nursing care required including intervention by nursing or medical staff; to record the chronology of events and the reasons for decisions made; to support standard setting, quality assessment and an audit trail of the care and treatment administered; and to provide a baseline record against which improvement or deterioration may be judged.
If medical and nursing records are defective, the continuity of a patient's care may be adversely affected by way of communications failures between medical and nursing staff leading to an increased risk of medication or other treatment being duplicated or omitted; a failure to focus attention on early signs of deviation in a patient's condition; and a failure to place on record significant observations and conclusions.
In one particular complaint received by the Ombudsman the family of a man, who died unexpectedly in a General Hospital within two days of admittance, could get no answers as to what had happened to him during those two days. In the course of the examination, a serious gap was identified in the relevant records which made it difficult to establish precisely what happened during the time at issue. The absence of detail in the medical notes following an examination of the patient raised the question as to how any doctor, who was subsequently called to examine the patient, could quickly apprise himself or herself of the patient's condition, in particular where a previous, but unrecorded, medical examination was significant in terms of diagnosis or treatment. The patient's condition had deteriorated rapidly, but the absence of medical notes made it difficult to readily assess the rate of deterioration over the period at issue. The failure to adequately record details of a particular examination on the medical notes could only be described as a stark failure in the standards of medical note record keeping that are expected of medical staff following their contact with patients. It also contrasted with the particular doctor's own expectation that he could update himself on the patient's condition by reading the previous medical notes on the patient's file.
There were also critical omissions in the relevant nursing notes. This was important as there was significant nursing intervention with the patient at the material time. In particular, an observation that the patient's leg had become extremely cold and was wrapped in a blanket reflected a significant change in the condition of the patient. The recording, and timing, of a significant nursing intervention such as wrapping a leg in a blanket because of its coldness and the reporting of this action to the doctor on duty is necessary to ensure that subsequent nursing and / or medical intervention takes account of significant earlier events.
The lesson from this complaint is that the creation and maintenance of medical and nursing records is an essential and integral part of the care that a patient receives from medical and nursing staff. Inadequate and inappropriate record-keeping concerning the care of patients may have a serious impact on the care and treatment a patient receives. Modern and effective organisations appreciate the importance of knowledge management as it is now known. Quick access to records and the information contained in them is now recognised as enhancing efficiencies and productivity. Proper use of technology will enhance these benefits..
The Result of Carelessness or Negligence
It is inconceivable that any health professional would deliberately place a patient at risk. However, elements of carelessness or negligence can occur which may well have that effect. In one complaint a family noticed that tablets had been left on their father's bedside locker. They were subsequently advised by a Ward Clerk (a non medical person) that as the tablets were on his locker then they were for him. A Ward Clerk should never impart such advice, but should have referred the family to the nursing staff. The patient should have been supervised by a nurse, who has a professional responsibility to ensure that medication has been taken. In the same case a Consultant had requested that the patient's fluid intake was to be restricted and that input and output were to be recorded. While the Fluid Chart indicated that the direction had been complied with, the family was adamant that no fluid restriction sign had been placed over their father's bed. The family was also adamant that neither they, nor their father, were made aware of this restriction. Such an oversight could have resulted in possible serious adverse consequences for the patient given the propensity of visitors to bring liquid refreshments when visiting a patient.
The lesson from this complaint is that medical professionals should accept that they are accountable for their own carelessness in the course of their practice. Extraneous factors can never fully relieve them of accountability for actions taken and judgements made. Given the importance of their role in healthcare they are required not only to provide an explanation or rationale for such carelessness to their patients, but also to themselves, their peers and to society in general.
Undesirable Administrative Practice
The concept of undesirable administrative practice is constantly changing. Good administrative practice develops naturally alongside that which it gauges, the ideal relationship between the individual and the administration at the time and the place in question.
A complaint involving the admission of a seriously ill student to an A&E Department is a case in point. On admission she was asked to complete a form confirming her VHI membership and placed in a semi-private ward. It subsequently emerged that her VHI membership did not cover the accommodation provided as the standard 26 week waiting period applicable to new members had not expired. She was sent an invoice for in excess of €2,500. While she acknowledged that she signed the form she was in considerable distress and pain at the time. The Ombudsman considered that the process, whereby a seriously ill patient could be held responsible for the completion of a form under such circumstances, to be inherently unreasonable. Following discussion on the matter, the Health Board agreed to waive the charges in the particular circumstances of the case. The Ombudsman subsequently wrote to all of the other Boards outlining this issue and received very positive responses with new procedures being implemented which should obviate such problems in the future.
The lesson from this complaint is that while it is important to have procedures in place to cover operational issues they should not be so rigid or inflexible so as to cause inequity or disallow the consideration of individual circumstances. Furthermore, it is important to undertake regular reviews of such procedures so as to ensure that they are being implemented fairly and in line with best practice.
Contrary to Fair or Sound Administration
What constitutes "sound administration"?
In one particular complaint the Ombudsman had to take issue with a Health Board in relation to the maintenance of its record system. It was clear that the medical records in relation to the individual complainant could not be traced. Arising from an inspection of the relevant Medical Records Section it was evident that there was no central record of files which had been removed from the Section, their present location or the amount of time they had been outstanding from the Section. In addition, there was no register of missing files maintained and, as a consequence, when a file which had been temporarily mislaid was returned, there was nothing to alert the seeker of that file to its return, nor was there scope for an audit of other sections of the Hospital for missing files. There was no written code of practice covering the health records function. The Ombudsman would consider that any such code would include policies covering security, privacy and confidentiality of patient information (regardless of the medium on which it is stored), filing and retrieval of records, retention of records, principles of record organisation and management, patient access to records etc. In addition the indications were that the staff responsible for the health records system at the hospital did not receive any formal training in this capacity. There was no written job description for the function of the manager with professional responsibility for hospital records, or any co-ordination of the medical records service function between the Board's hospitals to exploit best practice.
The lesson from this complaint is that the administration of any element of the health service does not stand in isolation but rather is a cog in the overall promotion of good medical care, enabling the HSE to operate more efficiently and enhancing the confidence of the public in the service. In short, all elements of the HSE must constantly strive to ensure that, in all aspects, it operates to the highest standards of quality.