Ontario’s new Patient Ombudsman

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By Michael Watts 

Michael Watts
Michael Watts

On December 10, 2015, announced Christine Elliott as the province’s first Patient Ombudsman. It is anticipated her appointment will come into effect on July 1, 2016, concurrently with amendments to the Excellent Care for All Act setting out the role’s functions and powers.

Many stakeholders are concerned, however, that the amendments to the Act fall short, because the Patient Ombudsman will not be as independent or empowered as the Ontario Ombudsman. While Health Minister Eric Hoskins has stated that the Patient Ombudsman will be free to criticize the government “as she sees fit,” she will be an employee of the Ontario Health Quality Council (OHQC) who can be terminated for cause, and will report to Minister Hoskins (whereas the Ontario Ombudsman is an officer of, and reports to, the Legislative Assembly).

Stakeholders are also concerned that, with the exception of long-term care homes, the Act does not empower the Patient Ombudsman to investigate all for-profit health sector organizations, such as retirement homes or private clinics that receive public funds, nor does it allow expressly her to investigate systemic issues affecting the industry.

Regardless of these concerns, health sector organizations need to amend their existing complaint policies before July 1, 2016 to address possible Patient Ombudsman investigations, and to ensure that those policies are robust and effective to help avoid investigations in the first place and demonstrate that adequate investigations occurred where complaints to the Patient Ombudsman are (inevitably) made.

The Patient Ombudsman will be responsible for responding to complaints from patients, substitute decision-makers, and caregivers regarding care provided by public hospitals, community care access centres (CCACs), and long-term care facilities. Other organizations that receive public funds will not fall within the Patient Ombudsman’s jurisdiction (unless and until prescribed by the Minister).

The Patient Ombudsman will work with all parties to resolve the complaint, unless (a) the complaint relates to a matter that is within the jurisdiction of another person or body or is the subject of a proceeding, (b) the subject matter of the complaint is trivial, (c) the complaint is frivolous or vexatious, (d) the complaint is not made in good faith, (e) the patient, former patient, caregiver or other prescribed person has not sought to resolve the complaint directly with the health sector organization; or (f) the patient, former patient, caregiver or other prescribed person does not have a sufficient personal interest in the subject matter of the complaint.

These exemptions will shield a wide swath of matters from investigation, and underscores why hospitals must have robust and effective complaint resolution mechanisms in place. Under the Act, “proceeding” includes a proceeding held in, before or under the rules of a court, a tribunal (including a hospital’s board of directors, when sitting as a tribunal under the Statutory Powers Procedure Act), a commission, a justice of the peace, a coroner, a specified regulatory committee, or an arbitrator or a mediator. This exemption also bars any investigation of matters falling within the jurisdiction of the Health Professions Appeal and Review Board or the Health Services Appeal and Review Board, or existing labour and employment dispute resolution mechanisms.

In resolving complaints, the Patient Ombudsman will have the power to investigate, including investigations undertaken on her own initiative. Any caregiver, patient or former patient, or officer, employee, director, shareholder or members of health care organization may be summoned by the Patient Ombudsman to provide information under oath or produce documents relating to the investigation. The Patient Ombudsman will also have the power to enter any health sector organization, but only with the organization’s consent or a search warrant.

Following an investigation, the Patient Ombudsman will be able to make recommendations to the health sector organization. The Patient Ombudsman will also report to the Minister on her activities and recommendations at least annually, will provide periodic reports to local health integration networks (LHINs) on her activities and recommendations, and will make all reports publicly available.

While there is little doubt that the creation of the Patient Ombudsman is an improvement from Ontario being the only province in Canada not to have a patient ombudsman, it remains to be seen whether she will have the ability to effect meaningful change to Ontario’s healthcare industry, or whether she will meet Ontarians’ expectations.

Michael Watts is a Partner in the Toronto office of law firm Osler, Hoskin & Harcourt LLP, and is Chair of the firm’s Health Industry Group. 

2 COMMENTS

  1. Hello, In MARCH 2011 I had knee replacement surgery at the Oakville hospital starting at 8 am and finishing at 10 am, however, I did not wake up until 6 pm, 8 hours after my surgery ended and unheard of by any hospital standards. Waking a patient as soon as possible is the first thing staff will do knowing the risks in leaving a patient under anesthetic too long. 8 hours extra under anesthetic is not only a long time but dangerous to the patient’s health. I never spoke or saw my surgeon for 2 months and still do not know if my surgery was ok or any complications. I spoke to no hospital staff while recovering from Mon to Fri and left the hospital without seeing a doctor. I have never experienced such hospital neglect in my 73 years, also including the emergency room. Waking up after spending the night on a gurney I asked the nurse for a coffee and told to get one at tim Horton’s, 2 long hallways for a senior with a new knee, cane, coat, purse. etc. This hospital has never been challenged regarding the dress code of staff or interaction with patients.
    I am still in the dark regarding what happened and why Dr Weening and staff left me under anesthetic for 8 additional hours. I can assume the anesthesis gave me too much anesthetic. I have not been successful in finding a lawyer to represent me and the 2 years for compensation has passed. I feel abused by the medical and legal system in Ontario and no one will help me. I Hope you are able to help me. Thank you.
    Glena Stanley 905 691 3066

  2. I wrote this article months ago and never received a reply. Giving a patient an overdose of anesthetic is dangerous to their health and even cause death, yet, the hospital and Dr Weening shrugged it off as though it didn’t deserve a response. Apparently there was concern about my blood pressure while still under anesthetic.
    The excuses do not justify why my surgeon and anesthetists gave me 8 extra hours worth of anesthetic and unheard of in any hospital. I was optimistic when the new Hospital Ombudsman was announced and thought my case would be investigated but I have heard nothing. One has to question why John Oliver, the CEO, suddenly resigned leaving a $500,000 position to become a federal liberal MP? My questions have never been addressed as though I had no rights as a ‘senior citizen’. My former colleague was a witness when I woke up but paid by the hospital to alter her story. Something is definitely not right and why is there such a cover up. Would someone please give me the correct answers and not excuses. I knew something was wrong when Dr Weening wrote to the CPS ‘he was satisfied I was awake and alert, even talking to him after my surgery’ and a total lie. I saw no doctor after my surgery or the following 4 days in hospital and discharged without examination by a doctor. This lie reinforces my believe it was deliberate and the question is why?
    Glena Stanley

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