Expert advice for Ontario Ombudsman on his bid for jurisdiction over hospitals and long term care facilities
Ontario Ombudsman André Marin’s bid for jurisdiction to investigate complaints about patients’ experiences at the province’s hospitals and long-term care facilities has support from a wide range of patient advocacy groups.
Marin stresses that his counterparts in all the other provinces have jurisdiction to investigate these types of complaints, although the scope of their powers varies.
If granted an extension of power, he anticipates his office will be one of “last resort” for complaints and estimates an additional 50 staff, in a specialized unit, will be needed to handle the influx of complaints.
Across Canada, there’s a wide variation in how patient complaints are handled and there appears to be a dearth of research that describes and compares the provincial approaches. Also lacking is evidence about the most effective ways to address complaints at different levels.
Still, experience from other Canadian jurisdictions, and advice from health policy and legal experts, suggest that if the Ombudsman’s office is granted this extension of powers, certain conditions should be put in place that would improve the office’s effectiveness. These include:
- beefing up the training of staff at patient complaint offices at the institution/health region level, and ensuring the independence of these offices
- providing clarity to patients about their rights—this may take the form of a patient code of rights—and about what kind of complaints can be escalated to the ombudsman level
- ensuring that the staff handling complaints at the ombudsman office level are highly trained and experienced in dealing with the very complex landscape of Ontario’s health care sector
- gaining the trust of all sectors, health-care providers and managers as well as patients and
- operating with discretion.
Ontario’s Excellent Care for All Act (2010) stipulates that hospitals must establish a patient relations process to address and improve the patient experience. The Long-Term Care Homes Act (2007) also stipulates that all LTC homes in Ontario are required to have written procedures for making complaints, and that these procedures must be posted where people can see them. Most observers agree that, when possible, complaints are best dealt with at a local level.
Settle issues as close to the front line as possible
“It’s a fundamental wisdom to try to settle issues as close to the front line as possible,” says Dr. John Cowell, chief executive officer of the Health Quality Council of Alberta.
Steven Lewis, advisor to The Change Foundation, an Ontario-based health policy think tank, adds that it’s vital that the local level complaints process be “transparently independent and able to do its job despite ruffling some feathers within the organization.”
As well, individuals who handle complaints at the local level must be well trained to ensure their neutrality, says Catherine Regis, director of programs in law and health policy at the Université de Sherbrooke. “But,” she stresses,” it’s also very important to have a second step, to an independent body.”
Judith Wahl, executive director of the Toronto-based Advocacy Centre for the Elderly, says that in her experience some hospital-based patient advocate offices reiterate hospital policy, even when it doesn’t comply with patient rights and the law.
For example, her Toronto-based legal centre has dealt with “many, many” complaints of Ontario hospitals threatening to charge patients hundreds of dollars a day if they refuse to move to a nursing home that has an opening, but that is not on the list of the patient’s preferred homes.
“This is not legal,” says Wahl, and her centre has posted a 2011 memorandum, from the Ministry of Health and Long Term Care that clarifies the issue.
“You’d like to be able to get a bigger remedy”
“When you see a consistent problem like this, you’d like to be able to get a bigger remedy . . . because these are systemic issues,” says Wahl, explaining why she favours giving the ombudsman—or some other independent third party—powers to investigate.
Quebec has long experience with a health ombudsman, a position (reporting to the health minister) that was created in the early 1990s. This position was accompanied by legislation that spelled out patients’ rights, explains Regis. The only other province with similar legislation is Alberta, although the relevant legislation, the Alberta Health Act, has not yet been proclaimed.
The Quebec health ombudsman’s role has since been absorbed into the office of the provincial ombudsman, which answers to Quebec’s National Assembly, and “can do an independent review from a bottom up perspective and make recommendations about systemic issues,” she notes.
However because the ombudsman can only recommend, it’s important that the office also have credibility and trust among health care managers and workers, she says.
Alberta has a different system. The 26 staff at Alberta’s Patient Concerns Office (PCO) last year dealt with 8,500 complaints and concerns that had not been satisfactorily dealt with at the point of care, says executive director Pat Brooks. The PCO is independent of the individual health care facilities and operates under the Quality Improvement Division of Alberta Health Services.
Only 23 of the 8,500 complaints were escalated to Alberta’s Ombudsman, whose jurisdiction is limited to ruling on the administrative fairness of the resolution process.
Ontario’s Marin would like jurisdiction to step in to investigate individual complaints about hospitals and long-term care facilities that aren’t resolved at the local level and, as well, be able to conduct major investigations into system-level problems.
In Alberta, it’s the Health Quality Council of Alberta (HQCA) that has the power to tackle system-level problems in the public health care system. The council does not receive patient complaints, but conducts independent reviews at the request of the health minister or Alberta Health Services, explains executive director Cowell.
The reviews, which may be triggered by patient complaints, have considered issues such as medication errors and cancer care wait lists. “We’ve had to invent our own methodology,” says Cowell, adding that individuals who give testimony, always on a voluntary basis, are guaranteed anonymity. The reviews “analyze and shine a light on a situation” and make recommendations about specific actions.
Ombudsman “should be careful what he wishes for”
He suggests that the Ontario Ombudsman should be careful what he wishes for. “For starters, the ombudsman will have to ramp up expertise to understand the complex, messy world of health care. We have 30 people on staff, all very seasoned with extensive experience and it is still a challenge to get into these issues and get out sensible, trustworthy findings that are actionable.”
Colleen Flood is a University of Toronto law professor and former scientific director of the Institute of Health Services and Policy Research of the Canadian Institutes for Health Research. Ontario should have an independent, arm’s length agency to which patients can complain if they’re not satisfied with how they are dealt with by a provider or institution, or if they are reluctant to bring their issue up at that level, she says. “This is a huge access to justice issue,” she argues.
If such an agency (the Ombudman or another office) “works well, it will likely be a win win for patients and providers. If the ombudsman does their job properly . . . they will resolve the complaints, and this means there will be fewer formal complaints to bodies like the CPSO [College of Physicians and Surgeons of Ontario] and fewer court cases.”
New Zealand, for example, experienced a significant drop in such complaints after it introduced a patient’s code of rights and an ombudsman position, she says.
But Flood says other provisions should be in place, including a clear expectation for patients about the basis on which the ombudsman will hear complaints. While she says it’s not absolutely necessary, she favours legislation for a patients’ code or bill of rights (Ontario doesn’t have one) that articulates what patients should expect of providers and what providers should expect of patients.
The mantra of alternative dispute resolution
A provincial ombudsman should be committed to resolving disputes. “They have to take on the mantra of alternative dispute resolution. They are not there to punish the provider or institution, or to shock the system into performance. . . . The ombudsman has to garner the trust not just of the patient, but of providers and system managers.”
When the office of the ombudsman identifies system-level problems, as a result of the nature of complaints that are reviewed, these larger issues can be highlighted in the annual reports, she says.
Ombudsman Marin, whose office does have jurisdiction over provincial ministries and agencies, has investigated health care related issues, such as newborn screening and funding of the drug Avastin, and he notes the government has accepted his recommendations. “I have no reason to think we could not have the same constructive relationship with hospitals,” he wrote in an email response to questions.
Health care institutions are steadily being required to become more accountable and it seems likely that, sooner or later, the Ontario Ombudsman—or some other independent agency—will be given the power to adjudicate unresolved patient complaints. It would therefore seem advisable, in advance, to prepare a comprehensive evaluation of how that role has best been played out in other provinces and what other system changes best support the role.