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Protecteur du citoyen's Brief on Bill 83 Act amending the Act respecting health services and social services and other legislative provisions
Presented to the Social Affairs Committee
Summary
January 2005
The Protector hereby submits to the Social Affairs Committee of the Québec National Assembly her comments and recommendations regarding Bill 83, An Act amending the Act respecting health services and social services and other legislative provisions.
Her comments deal mainly with the Protecteur du citoyen’s new mandate in the area of health and social services.
The benefits of the planned reform, the improvements to make to the bill, and the need to complete this reform by integrating her new role into the Public Protector Act figure prominently in them.
Other aspects of the reform are also addressed, such as the certification of private residences for the elderly and how health-related information is circulated and kept on file.
Benefits of the Planned Reform
Given that the Protecteur du citoyen reports to the National Assembly, investing her with the power to act as ombudsman within the health and social services network provides users with an independent recourse mechanism.
The appointment of two deputy protectors—one of whom will mainly fulfill the duties set out in the Act respecting the Health and Social Services Ombudsman—testifies to the importance accorded the health and social services sector.
The Protector welcomes the amendments to the Health and Social Services Ombudsman Act, which streamlines procedures and broadens her role, for example, with respect to certified private residences for the elderly.
Some Improvements to the Bill, Some Concerns to Raise
The bill provides for the appointment of two deputy protectors on the Protector’s recommendation. One deputy protector, appointed in consultation with organizations representative of the health and social services sector, would mainly fulfill the duties of the Protector under the Health and Social Services Ombudsman Act. The Protector questions the need to add a consultation process for this deputy protector.
Even though consultations are useful and even crucial in certain cases, they are not appropriate in the case of at hand. Firstly, such consultations are not required for the appointment of an Assistant Protector (now Deputy Protector). Furthermore, they have not been required for the appointment of the Health and Social Services Ombudsman. This requirement to consult with organizations representative of the health and social services sector threatens to compromise the independence of the Protecteur du citoyen.
Accordingly, the Protector recommends
1. That Section 227 of the Bill, which amends Section 4 of the Public Protector Act, provide that the Deputy Protector who will mainly fulfill the duties of the Protector under the Act respecting the Health and Social Services Ombudsman be appointed by the government upon recommendation of the Protecteur du citoyen.
An interim provision in the bill allows the Health and Social Services Ombudsman in office to stay on as Deputy Protector once the bill comes into force until he or she is reappointed or replaced. Since no such provision exists for the Assistant Protector, the Protector recommends
2. That an interim provision be added to the bill stipulating that the Assistant Protector in office when the bill comes into force shall stay on as Deputy Protector until his or her term expires.
An ambiguity persists as to the power of the Health and Social Services Ombudsman to review decisions by local or regional commissioners to reject a complaint on the grounds it is frivolous, vexatious, or made in bad faith. Consequently, the Protector recommends
3. That Section 8 of the Act respecting the Health and Social Services Ombudsman be amended to explicitly define its power to review decisions by local or regional commissioners to reject a complaint under sections 35 and 68 of the Act respecting health services and social services on the grounds it is frivolous, vexatious, or made in bad faith.
An examination of other laws shows they are incompatible with the Health and Social Services Ombudsman’s new status, as the Ombudsman is listed as a budgetary organization in Appendix 1 of the Financial Administration Act. Consequently, the Protector recommends
4. That Appendix 1 of the Financial Administration Act be amended to remove all reference to the Health and Social Services Ombudsman.
The Need to Complete the Reform by Integrating the Role of the Health and Social Services Ombudsman into the Public Protector Act
Maintaining the Health and Social Services Ombudsman Act risks perpetuating the confusion that already exists, as the Protecteur du citoyen will from now on fulfill the Ombudsman’s duties. Consequently, the Protector recommends
5. That the Act respecting the Health and Social Services Ombudsman be repealed and the Public Protector Act amended to include the Ombudsman’s mandate.
Investigating Complaints from the Health and Social Services Network
The Protector has and always will be concerned with how complaints regarding the health and social services network are dealt with. Though Bill 83 puts forward compelling improvements in this regard—and addresses some recommendations made in previous years—the Protector nonetheless believes that other aspects deserve a closer look. In this respect, she believes the following recommendations are appropriate:
6. That Bill 83 be amended to enable anybody to complain on behalf of a user at all levels of the health and social services network complaints process.
7. That Section 53 of the Act respecting health services and social services be amended to allow complainants to apply verbally or in writing to the review committee for a complaint review.
8. That an institution’s professional services manager not be eligible to be named medical examiner.
9. That Protecteur du citoyen be allowed to oversee the complaints investigation process by the medical examiner, review committee, and board of trustees.
10. That Protecteur du citoyen be allowed to oversee proceedings to ensure that complaints regarding a professional act by a physician, dentist, or pharmacist are investigated in accordance with the law.
Jurisdiction Over Private Residences for the Elderly
Bill 83 provides for a certification process for private residences for the elderly that wish to take in people referred by the network. The Protector salutes this measure, which is aimed at ensuring a safe environment and quality services for the elderly. However, she reiterates that other clienteles in private residences also require such protection. The Protector therefore recommends
11. That all private residences for people with special needs and who are referred by the health and social services network must be certified.
The Protector remains preoccupied with the situation of people in uncertified private residences, as these residences will continue to accept people without having to meet standards of quality. We must take action to protect people in such residences, who will see their condition deteriorate significantly over time.
The Protector believes that a provision is necessary to allow officials to intervene when there are reasonable grounds to believe that the health or wellbeing of people in an uncertified residence is threatened.
Consequently, the Protector recommends
12. That the powers of the regional complaints commissioner and Protecteur du citoyen be broadened to enable them to intervene in any private residences that do not have a certificate of conformity when a situation arises that threatens to compromise the health or wellbeing of residents.
Circulating Health-Related Information and Keeping It on File
The Protector questions the advisability of forwarding necessary information without the user’s consent when he or she is admitted. Users participate in managing their health, are informed as well as consent to or refuse care or treatment. The obligation to obtain their consent enables us to inform and help them participate in the care and services they receive.
In addition, a distinction must be made between the obligation to obtain user consent and the other goals of the act, such as computerizing clinical information. In the absence of clear reasons proving that user consent is not necessary, the proposed change seems unjustified. The Protector therefore recommends
13. That the right to consent expressly to the forwarding of information be kept in its current form.
14. That the minister of Santé et Services sociaux develop a simple consent procedure that makes health and social services workers responsible for consent management.
The bill provides for certain health-related information received from authorized workers in an agency’s service area to be kept on file. Doing so requires the consent of users, which consent is revocable.
The information kept on file by the agency or establishment authorized by the Minister can be made available to any worker who provides users with healthcare services. The Protector believes that this fact must be clearly explained to users. Consequently, she recommends
15. That the consent form clearly state that consenting to having one’s information kept on file is also deemed consent to its free circulation under the terms of the act.
Lastly, various provisions introduce administrative remedies for users regarding access requests and the communication of information. The Protector’s concern is to ensure that adding administrative remedies to complement or parallel those of Commission d’accès à l’information does not confuse users. The Protector therefore recommends
16. That the minister of Santé et Services sociaux ensure that users receive clear and timely information regarding their rights to access and correct information kept on file by agencies.
© Le Protecteur du citoyen 1999-2011