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The Role of the Office of the Ombudsman (02.10.2006)

Address by Emily O'Reilly, Ombudsman at the Conference on Rights and Entitlements of Older People Croke Park

Good morning everybody and thank you for your invitation to address you here today. I have to say that I'm beginning to bring more than a little self-interest to bear on conferences such as these given that I'm far too rapidly heading towards an age when a number of older person benefits are set to come flooding my way. They include potential membership of the "nifty at fifty" classes at my local gym, the possibility of re-training in something or other if one of Senator White's many excellent proposals in her new policy documents begin to see the light of day, the joys of clanking around a hotel in late November on a golden years break, the consumption of a much advertised multivitamin that contains "lutene" ,and, should I ever discover the plastic surgeon attended by the former Charlies Angels, the delights of looking about 25 again.

So while it may be true to opine that the elderly are often ignored and overlooked in our society, I don't think many of us can remember a time when there was such an overwhelming interest in the subject of ageing, or rather non-ageing, or anti ageing as the cosmetic companies would have it. In the last few years the beauty industry has become increasingly medicalised with botox injections for example on the same treatment menu as standard facials and with the consequent pressures, notably on women, although increasingly on men, to go down that particular route.

This intense obsession with youth and the maintenance at least of the appearance of youth brings with it the danger of an increased fear of ageing and even of the aged. It is my view that the imaginative failure at both public and political level to empathise with the lives of the elderly and to ensure that their lives are as fulfilled and as secure as those of younger people is prompted partly by a growing culture of age denial. Ironically, this comes at a time, as Seantor White's report clearly shows, when people are living longer, healthier lives with a much greater potential to contribute at all levels of personal and professional activity than any previous generation.

As you are now,

so once I was,

as I am now,

so shall you be

If I were to ask public service provider to have one mantra in their heads when they begin any interaction with an older person, that is what it would be. Time and time again I am baffled when I come across an action by a thoughtless, insensitive bureaucracy as it seeks to deal with an issue concerning an older person. It could be a failure to provide as quickly as possible a chairlift in a house, or an accessible shower, it could be a penny pinching attitude to the provision of incontinence pads to a person in a nursing home, it could be the failure to use humane discretion in relation to nursing home subventions, or simply to make allowances for the fact that a little more time and trouble needs to be taken to deal with someone who isn't as young as they used to be. I think that every elderly person should have that mantra as a fundamental statement at the outset of every interaction that they have with a public service provider when they are seeking their rights and entitlements.

I have come to my role as Ombudsman from a journalistic background, with particular experience in the political field. I now deal with individuals who perceive themselves to have been unfairly treated by the outcome of that political process. The core function of my Office is to protect the individual from unfair, unsound and unjust actions of the State, and none more so than those individuals who have now entered the elderly stage of their lives.

My fellow speaker Maurice Manning will shortly address you on the subject of human rights and the elderly. In many ways both of our offices act in a complementary manner. To the extent that my Office has developed a role in ensuring fairness and equity on the part of the public service in its dealings with the elderly, this is fundamentally an exercise in the promotion of human rights.

My annual reports detail the myriad ways in which such issues impact on the lives of the elderly, from widows in search of basic allowances to people with disabilities seeking grants to improve the quality of their lives in their homes, bereaved families looking for answers from hospitals about the care of their loved ones, older people looking for affordable care, retired public servants seeking lost pensions rights, and many other examples of cases where the State has not behaved properly towards the people it serves. Whilst the language of human rights has not generally been invoked by complainants, I have in particular cases made an overt link between this activity and the protection of human rights.

Maurice will probably back me up when I say that the administration tends to get a bit jittery when the two words human and rights are mentioned. We see rights, they see the gobbling up of resources and more financial demands on the exchequer. Given the title of his Commission Maurice and his colleagues have no option but to say the two words probably on a daily basis. I tend to avoid it and liken what I do to a parent's attempts to feed his or her children vegetables. We cut them into funny shapes, we drown them in ketchup, the last thing we try to do is call them what they are, vegetables.

The recent controversy over the illegality of nursing home charges was very much bound up with the work of my Office as most of you will be aware. The controversy stemmed from the systematic failure to ensure that charging practices were kept within the law. Attempts to shoehorn clearly ultra vires regulations into various charging schemes led at times to great distress both for the elderly and for their families. Whilst the core issue, the illegal charging, has now been rectified, there are a number of issues still outstanding arising out of the controversy.

The Supreme Court judgement did not address the issue of those medical card holders who could not be provided with a bed in a public institution, due to a shortage of such beds, and who were directed by the health boards towards private care, without in any way acknowledging their own responsibilities in the area. Legal proceedings have now been commenced by one individual in relation to this matter, and I intend to monitor the outcome in respect of other similar complaints that I have on hands. In addition, the Supreme Court did not deal with the issue of those patients who did not hold medical cards, and who had similarly been directed by the health boards towards private care, without in any way acknowledging their own responsibilities in the area. I have little doubt but such cases will continue to be the subject of complaint to my Office and/or legal proceedings.

The Minister for Health and Children has introduced legislation to give effect to a scheme of repayments to individuals who were illegally charged in the past in respect of the provision of in-patient services in public nursing homes. The Scheme does not cover those individuals, outlined above, who could not be provided with a bed in a public institution, due to a shortage of such beds, and who were directed by the health boards towards private care. The Scheme (analogous with the Statute of Limitations ) specifically excludes repayments to the estates of people who died before December 1998, irrespective of whether the claims are meritorious or otherwise. Again, I have little doubt but that such cases will eventually be the subject of complaint to my office and/or legal proceedings. The Scheme will be processed by an outside agency on behalf of the HSE, and incorporates a transparent appeals process. It is also designed to provide safeguards to prevent exploitation of those who receive payments and are not in a position to manage their own financial affairs.

The administrative actions of the Department, the HSE, any agency acting on their behalf and the appellate functions are all subject to my jurisdiction in all of these matters. It is my intention to examine complaints which I am bound to receive on all of the foregoing issues under the terms of the Ombudsman Act, 1980, as amended. In doing so, I will take into account the individual circumstances of the complaint, the individual and general administrative actions of the HSE and the Department in the matter and any submissions they may make in relation to any complaint, relevant legislation and any determination of relevant issues by the courts. In any particular case where I find that maladministration has adversely affected a complainant I will make recommendations for redress to the relevant health agencies or the Department of Health and Children, as appropriate.

As Ombudsman, I have no role in enacting legislation or in promoting one policy initiative over another. I am not an advocate per se, but advocacy in effect does flow from the very practical work my Office does. I have a role in ensuring that people are treated fairly by the administration, and, when it comes to the elderly, fairly means without discrimination, with due regard to their physical or mental capacity, and above all with respect to their human dignity. This is most exemplified in the interaction between the elderly and the health service.

The Elderly and the Health Service

If there is one insight that I have gained from my experience as Ombudsman it is that each person who presents a complaint to me is a unique individual person, just like each one of you listening to me here today. There has never been an exact replica of you before, nor will there ever be again. It is a truism; all individuals differ. We all make sense of any given situation in our own unique individual ways. We all differ in our construction of events and the meaning that we attribute to them, which will be unique.

An individual elderly person has a unique system of beliefs and values based on his/her own personal history. These beliefs and values act as internal filters which provide motivation for action, determine how decisions are made and, as I experience, give a reference point for evaluating events and circumstances after they have happened. When a person feels unfulfilled or unsuccessful in an exchange with another individual it is likely that his/her beliefs or values for that event have not been met. This is the case whether the exchange is between persons as spouses, parents and children, employers and employees, Ombudsmen and complainants or the Health Service Executive and elderly patients.

My experience is that the key to dealing with individual complainants is to acknowledge them as unique persons and act accordingly. It is my belief that this concept also applies to health service providers. One consequence of adopting this concept is that the health service is required to differentiate between the person and the category to which he/ she belongs. It is very important that the health service does not confuse the category "patient" and the entity " elderly person". They are two different logical levels. In fact it can be argued that you cannot even discuss them in the same sentence. A patient is a member of a category, he/she is not the category. He/she is first and foremost an individual person. Medical treatment is delivered to a person, not to a category.

I have often thought that the logic of such a differentiation leads, not to the development of a patients charter, but rather to the development of a charter of a persons rights, as a patient, while they are in receipt of medical treatment. It was with this concept in mind that I developed the Statement of Good Practice for the Public Health Service in Dealing with Patients which, together with the provisions of the Ombudsman Act, I intend to use it as a framework in my examination of complaints relating to public healthcare. In March of this year I presented this Statement to the newly formed Health Service executive in a report on my experience of dealing with complaints against the public health service. Although delivered in a generic format, I would like to outline aspects of that report and Statement, insofar as I consider that they affect the elderly, a category who avail of our health services to a grater extent than other categories of the population.

1. Values in Health Care

As best practice the elderly should be respected as human beings, to have their physical and mental integrity respected, to the security of their person, to have their privacy respected, and to have their moral and cultural values and religious and philosophical convictions respected.

2. Information

As best practice the elderly should be able to access information about the available health services, to be fully informed about their health status, including the medical facts about their condition; about the proposed medical procedures, together with the potential risks and benefits of each procedure; about alternatives to the proposed procedures, including the effect of non-treatment; and about the diagnosis, prognosis and progress of treatment.

Information should be withheld from the elderly only exceptionally, when there is good reason to believe that this information would, without any expectation of obvious positive effects, cause them serious harm.

Information must be communicated to the elderly in a manner appropriate to their capacity for understanding, minimising the use of unfamiliar technical terminology.

 3. Consent

As best practice the informed consent of the elderly patient is a prerequisite for any medical intervention, and the informed consent of the elderly patient is needed for participation in clinical teaching, and for participation in scientific research.

4. Confidentiality and Privacy

As best practice all information about an elderly patient's health status, medical condition, diagnosis, prognosis and treatment and all other information of a personal kind must be kept confidential, even after death.

Elderly patients have the right of access to their medical files and technical records and to any other files and records pertaining to their diagnosis, treatment and care and to receive a copy of their own files and records or parts thereof, provided access does not put their health at risk.

Elderly patients admitted to health care establishments have the right to expect physical facilities which ensure privacy, particularly when health care providers are offering them personal care or carrying out examinations and treatment.

5. Care and treatment

As best practice elderly patients have the right to a quality of care which is marked both by high professional standards and by a humane relationship between the patient and health care providers. Elderly patients should be treated with dignity in relation to their diagnosis, treatment and care, which should be rendered with respect for their culture and values. Elderly patients should be able to enjoy support from family, relatives and friends during the course of care and treatment and to receive spiritual support and guidance at all times.

6 Safety

As best practice elderly patients should be free from harm caused by failures in service delivery, medical malpractice and errors, and when availing of health services that such services and treatments meet high safety standards. Each elderly patient has the right to expect that hospitals and health services monitor risk factors on a continuous basis and ensure that systems are in place to ensure optimum quality and safety of the environment of health service delivery to patients and service users.

Dying with Dignity

Over half of all deaths in Ireland occur in hospitals and it is therefore vital that the experience of an estimated 15,000 people and their relatives should be a matter to be taken into account in consideration of this issue. Such experience could lead the development of the adoption, within the health services, of the concept of a good death; the right of people who are dying in hospitals to a dignified death, pain free as is possible, and in conditions which enhance their dignity and privacy. The concept would also take into account the needs of family members and of other hospital patients; the right of patients and, where appropriate, their families, to be communicated with respect, in facilities which afford full privacy and confidentiality.

I fully accept that staff within the hospital service face particular challenges in dealing with complaints from family members who have been recently bereaved, often in the most unexpected circumstances. In addition to coping with a sudden bereavement, family members invariably seek to ascertain the precise cause of their loved one's unexpected death and may often question the medical and nursing treatment provided. This often occurs at the stage in their cycle of grieving when they are shocked and in disbelief of the bereavement. If they construe that hospital staff are dealing with their query or complaint in a haphazard or unsatisfactory manner, their shock and disbelief can manifest itself in anger for not providing clear and cogent explanations to their queries. In dealing with such individuals, it is incumbent on healthcare staff, both medical and administrative, to understand and empathise with the grieving process, and the need to give clear explanations about all of the issues surrounding the death. It is for this reason that I consider that staff within the health service, particularly in the acute hospital services sector, should receive adequate and ongoing training in how to deal with complainants or queries from people who are recently bereaved. It is incumbent on management to ensure that personnel dealing with the recently bereaved have the capacity to deal with them in a proper and sympathetic manner.

Complaints and the Elderly

Elderly people face particular difficulties in making complaints about a health service. They may be seen as irritants, interfering with normal work. While there is greater emphasis nowadays on improving the quality of the health service, the standards of service are set by the providers themselves and they also devise the systems and procedures for achieving these standards. However, The effectiveness of these procedures and the relevance of the standards set can, however, be judged or assessed properly only by reference to the very people, the users/patients for whom the service is provided.

There may well be a perception among the elderly that complaining about a particular health service might well prejudice treatment from other professionals in another service. Difficulties may also arise when elderly patients have problems articulating their views or are themselves incapable of making decisions. Complaints concerning mental health services in particular are often difficult and complex, consequently they require an extra degree of sensitivity and usually a greater input of staff time. There are numerous hurdles which the elderly must clear before they can make a complaint about a mental health service. It is very important that these factors are taken into account by the individuals dealing with complaints from users of the mental health services.

Elderly complainants may not be believed for a number of reasons; their thought processes may be seen to be, or may actually be, disordered or otherwise impaired. Accounts of events provided by them may be perceived as the product of an impairment rather than having a basis in reality. Complaints from elderly people with mental illness are often not recognised or may be disregarded or dismissed as a symptom of illness. Elderly patients may have a history of making numerous complaints resulting in service providers paying inadequate attention to their complaints. They may be perceived as less credible than service providers leading to premature conclusions;

In my opinion there is no place in complaints management for premature and uninformed judgements on the credibility of complainants or the validity of the complaints. If an elderly person cannot avail themselves of the rights outlined above, they should be exercisable by a person designated by the patient for that purpose; where neither a legal representative nor a personal surrogate has been appointed, other measures for representation of those patients should be adopted. In such circumstances elderly patients must have access to such information and advice as will enable them to exercise these rights. Where they consider that their rights have not been respected they should be enabled to lodge a complaint. The mechanisms at institutional and other levels to facilitate the processes of lodging, mediating and adjudicating complaints should ensure that information relating to complaints procedures is readily available and that, where necessary, assistance and advocacy on behalf of the patient would be made available. They then have the right to have their complaints examined and dealt with in a thorough, just, effective and prompt way and to be informed about their outcome.

Most of the complaints that I receive by or on behalf of older people concern the HSE - notably in relation to nursing home issues - or the local authorities, particularly in relation to the provision of lifts, or suitable bathrooms, or other facilities within the home to enable the elderly person to live there as a long and as comfortably as possible. I welcome all such complaints and would encourage all organisations either run by the elderly or on behalf of the elderly to use the free service provided by my office to lodge a complaint if they feel that a public body is not doing what it should be doing in relation to their needs or basic entitlements.

Individual complaints quite often expose a wider, more systemic problem and in exposing and dealing with that problem a greater number of people are frequently helped. The nursing home charges issue was a case in point.

Finally could I congratulate Age Action on the very important and excellent work that it does, and could I thank them for inviting me to talk to you here today.

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