Conflict Resolution and the Role of the Ombudsman | Protecteur du Citoyen
June 4, 2012

Conflict Resolution and the Role of the Ombudsman

Corps

It was with great pleasure that the Ombudsman accepted the invitation to speak as part of this symposium on communication and empowerment.

To begin, I would like to state that the theme of my presentation, “Conflict Resolution and the Ombudsman’s role,” should be understood in a general sense. I am not here to present myself as a specialist in mediation. Instead, my presentation will discuss the general themes of communication and empowerment.

The basic premise is that there are relatively effective mechanisms for processing individual complaints within institutions. The Ombudsman plays a well-defined role in the health and social services complaints management system. I will briefly outline this role later. We note, however, that in many situations, user vulnerability and fear of reprisal are major obstacles that keep people from exercising their legitimate right to complain, and from receiving a thorough examination of the reasons for their dissatisfaction. This particular context, often resulting from a person’s great dependence on health care teams and institutional personnel, seriously restricts the empowerment of users and residents. In such cases, the importance of users and residents committees becomes apparent.

You are, to some extent, the guardians of user rights and thus must make sure that users are treated in a manner that respects their dignity and recognizes their rights and freedoms. You are one of the major user representatives with regard t0 institutional authorities. Your actions should be guided by the goals of respect for user rights, service quality and client satisfaction. You should do all this while paying particular attention to those who are most vulnerable. This mandate and the words chosen to define it have a particular resonance for me. We will see that they are found at another level in the Ombudsman’s mandate. I am convinced that we would benefit from getting to know each other better, and from better understanding our respective roles and responsibilities. Here we touch on the importance of communication, which is a theme of this symposium.

The status and role of the Ombudsman

It is important to keep in mind a few fundamental facts regarding the Ombudsman’s status and role.

The Ombudsman is an institution designated by the National Assembly that reports to the Assembly. It is an independent body. No one can intervene in its investigations, conclusions and recommendations. It is held to impartiality and is required to respect the confidentiality of personal information belonging to the citizens for whom it acts. Independence and Impartiality are the two words to keep in mind.

It is headed by a person appointed by the National Assembly, which examines his or her candidacy on the recommendation of the Premier. In order to be chosen, the Ombudsperson must receive the support of at least two thirds of the National Assembly. Raymonde Saint-Germain was appointed to a second five-year term as Ombudsperson, in June 2011.

The Ombudsman has jurisdiction over:

  • All Québec government departments;
  • Most public bodies (excluding certain public corporations);
  • The 18 detention centres in Québec, since the Ombudsman is also Québec’s correctional ombudsman;
  • Since April 2006, all health and social service institutions in the public sector as well as some private institutions.

Today’s symposium is obviously concerned with this last group.

Its role in the health and social services network

In the health and social services sector, the Ombudsman has been responsible for the application of the Act respecting the Health and Social Services Ombudsman since April 2006. This means that it intervenes mainly as a second level recourse in this sector. Generally, the user must first address the local service quality and complaints commissioner at the institution where the user received services or, in some cases, the regional service quality and complaints commissioner at the Agence de la santé et des services sociaux in the user’s region.

If the user is unsatisfied by the conclusions of the local or regional commissioner or if the user does not receive a response within 45 days, he or she can then contact the Ombudsman. The user can also directly complain to the Ombudsman if he or she fears reprisals or has lost trust in the commissioner. The Ombudsman cannot, however, intervene when a complaint concerns a doctor, resident, dentist or pharmacist who practices in an institution belonging to the health and social services network. In such cases, the medical examiner must be called upon.

Reports addressed to the Ombudsman

As we have seen, the Ombudsman acts mainly at the second level of intervention. I want to emphasize however, and I think this is of interest to you, that the Ombudsman can always intervene of its own initiative, without a complaint, “if the Ombudsman has reasonable grounds to believe that a natural person or a group of natural persons has been or may likely be wronged by an act or omission of any institution or any organization, resource, partnership or person to whom or which an institution has recourse for the provision of certain services.” It is through the reporting procedure that a third party can inform the Ombudsman of certain troubling facts and request its intervention. In such a case, the Ombudsman makes certain verifications and decides, once it has more information, if there is reason for greater intervention.

I think that this possibility of reporting problematic situations to the Ombudsman is particularly interesting, in certain cases, for users and residents committees. You are first-hand observers of institutional realities. You know the problems, the gaps, and you have the confidence of users. You are able to connect the dots between different situations. You know the great vulnerability of many of the users that you represent. You understand why, in reality, empowerment is often limited when the time comes to blow the whistle on an unacceptable situation. By sending a report, you will directly attract the Ombudsman’s attention to a situation and allow it to make an informed decision about whether to intervene as part of an investigation.

From an individual complaint to a systemic intervention

Ombudsmen, like the Ombudsman, are evolving organizations. If there is one noticeable trend that sticks out when undertaking a comparative analysis of different ombudsmen, it is the trend toward developing collective interventions. We are moving slowly from a model of processing individual complaints to achieve an appropriate corrective action for someone who has been victim of an injustice at the hands of the State, to a model where the individual complaint becomes an element that is used to address wider problems that affect a greater number of people. For many years, the Ombudsman defined its vision in its motto: “Remedy for one citizen—remedy for all citizens.” Every time the Ombudsman notices that a citizen has suffered an injustice at the hands of the State, it must ensure that the corrective action sought applies to all those who could find themselves in the same situation as the complainant. In this manner, the Ombudsman seeks to effect a collective outcome.

The Ombudsman has built on this vision as part of its new strategic plan, which came into force on April 1.Thus the motto is now: “Finding a complete solution for one, for all.” The vision statement expresses the Ombudsman’s desire to play a constructive role in the search for solutions to the various problems encountered by citizens. The complete solution refers to one that addresses the real causes of a problem and aims to correct the situation concretely and in a sustained fashion. Similarly, the Ombudsman wants to pay particular attention to effecting a collective outcome. If more than one citizen is wronged by a situation cited in a complaint, the corrective action sought ought to apply to everyone who has been similarly wronged.

This is no trivial evolution. It expresses the Ombudsman’s intention to devote more effort towards understanding the underlying causes of the problems observed in order to ensure that the measures proposed will sustainably and concretely improve the situation. In short, the measures should prevent, or at least diminish, reoccurring complaints on the same subject. I want to make it clear that the efficient processing of individual complaints will remain at the heart of the Ombudsman’s activities and that the Ombudsman will dedicate all the resources required to this end. It must, however, use the information derived from processing individual complaints to better understand their complex underlying causes.

Two recent interventions

Two of the Ombudsman’s recent interventions illustrate this development. They gave rise to what is known as systemic interventions. I will summarize them briefly and emphasize the fact that, in both cases, individual complaints received on the subject helped the Ombudsman’s systemic intervention.

  1. Having noticed a major increase in the number of individual complaints about the inaccessibility of home support services for people with long-term disabilities, the Ombudsman decided to systemically examine this issue. It found significant gaps between the wording of the home support policy Chez soi : Le premier choix and its practical application. After carefully examining the policy’s framework in four regions along with various other sources of information and documentation, the Ombudsman targeted practices that respected neither the letter nor the spirit of this policy. They included the appearance of new exclusionary criteria not listed in the policy, the introduction of a cap on the number of service hours independent of a person’s evaluated needs, the lowering of service hours and the regional disparities found in the application of the policy. All of this had an effect on caregiver exhaustion and on the overall management of the health care system. Many vulnerable people had to return to emergency departments in order to receive care, which increased the strain to an already strained system. There were also those who could have stayed at home if they were able to receive the services outlined in the current home support policy but were, instead, waiting for far costlier institutional accommodation. When looking for solutions, the Ombudsman spoke in favour of greater transparency. Firstly, waiting lists all over Québec should be analyzed. Secondly, our needs over the coming years should be projected. Finally, our projections should be compared with those of other administrations who are facing similar challenges. This would allow us to better plan the allocation of required resources and to report, with greater transparency, on how those resources are being used.
  2. Finally, the Ombudsman recently published a report about the services offered to young people and adults with a pervasive developmental disorder (PDD). We produced a substantial report that contained various recommendations based on an analysis of complaints received, meetings with experts and stakeholders, discussion groups for people living with a PDD and a review of the scientific literature on service organization. As in the previous example, we found that the theoretical offer of services described in policies, action plans and other administrative documents appeared to be adequate. On the ground, however, we noted that this theoretical offer of services amounted to very little and was not equally accessible and that there were major regional variations. Our analysis brought us to propose a three-pronged action. Firstly, the roles and responsibilities of the various stakeholders who represent different institutions or different networks (health, social services, education and employment) should be more clearly outlined. Secondly, performance measurement should be improved (currently, it is very difficult to see where the money invested goes and to measure its real impact). Finally, the public services available to vulnerable people should also be more clearly defined.

What is interesting about the second intervention is the fact that we were able to widen our assessment beyond the initial subject of our intervention. By examining services for people living with a PDD, we were able to document a more general risk of service erosion that could affect other groups of vulnerable people.

A better understanding of realities in order to better intervene

I have sketched out, without providing all the necessary details, two recent systemic interventions undertaken by the Ombudsman. I wanted to do this in order to show the link between the processing of individual complaints and the systemic analysis of complex problems. In essence, individual complaints support systemic analysis by showing the real impact that problematic situations have on the lives of persons who have suffered an injustice. They humanize assessments that could otherwise seem cold or technocratic. Most of all, they remind us that financing and service organization decisions have a real and concrete impact on the services provided to users.

I am making a link here with the symposium’s theme. Empowerment is often very limited in an individual complaint about a complex problem. The person who requires home support services is told that the available budget provides up to 12 hours of service while the person’s needs have been evaluated at 24 hours. The parents of an autistic child who needs social participation support services upon leaving school at the age of 16 are told that these services will only be available at the age of 21, or in five years time, and that in the meantime, they can be added to a waiting list for specialized respite services. The manoeuvring room available to institutions is, in many situations, very limited, and service providers often claim, in good faith, to be powerless.

In these situations, empowerment lies in adopting a pragmatic attitude and doing as much as possible with regard to each individual file in order to repair the injustice suffered by users while, at the same time, documenting the problematic situations that endure. If the goal is to illustrate the negative impact of administrative decisions by using real examples and to bring these assessments to another level, why not file a report with the Ombudsman?

The Ombudsman’s means of action

In essence, we act to correct prejudicial situations and restore the balance between citizens, who are sometimes alone and bereft, and public services, which have relatively incomparable resources and powers. Citizens of all socioeconomic backgrounds and in all regions of Québec call on us when they have difficulty being understood or are unable to have their rights respected.

As part of our interventions, we have the status, power and immunity of an investigation commissioner under the Act respecting public inquiry commissions. We can thus demand from the organizations under our jurisdiction any document or information that we think is useful to our investigation and require, by subpoena, any person to testify.

This role of both mediator and neutral, impartial investigator contributes, in my opinion, to reinforcing the empowerment of users and their representatives when faced with decisions that have a negative impact on their rights or on the quality of services that they receive from the health and social services network.

I am making this call now but, in the same breath, I also want to manage expectations. Our resources are not unlimited and we do not lack for work. For example, it is interesting to note that in the health and social services sector, the rate of legitimate complaints, after investigation, is almost half of all complaints (49.7%) while it is 26.3% for the other sectors of public administration. This shows that a major part of the work of an Ombudsperson’s delegate in the health and social services sector consists in ensuring that institutions, agencies and the Ministère de la Santé et des Services sociaux implement the recommendations that were made in order to correct injustices and prevent their reoccurrence. It is interesting to note that recommendations are accepted in more than 98% of cases.

It must also be remembered that the Ombudsman does not have the power to enforce anything. Its power, just like that of the Auditor General, is to make recommendations. Our credibility is built on thorough investigations, relevant documentation and strong arguments. This is the basis of our ability to persuade, which is a determining factor in obtaining results.

Thus, if we are better informed of the realities observed on the ground, we can document problematic situations more accurately, in a more unbiased fashion and with greater credibility. If we are more credible, then our ability to persuade and our chances of achieving the objectives of the people that you represent will increase. Each situation brought to the attention of the Ombudsman, even if it does not immediately lead to a tangible improvement at the end of an investigation, increases our knowledge of the realities and our understanding of the issues. This information is of greatest importance when the decision to conduct a systemic intervention is made, since it often serves as our starting point.

Another aspect that I would like to emphasize, as part of systemic interventions, is that patience is required before concrete results are achieved. Recommendations may require major administrative reforms, organizational transformation or changes to organizational cultures, all of which take time. It is important to respect an organization’s ability to deliver changes within a reasonable timeframe. Problems such as those dealt with in recent systemic interventions do not resolve themselves in six months. We must be realistic. This is why intervention follow-up should be seen as a short-, medium- and long-term process that takes place continuously and includes reporting milestones. It seems necessary to propose strict but realistic deadlines to affected departments, agencies and institutions. After all, it is better to see gradual improvement than to see the recommendation rejected because the deadline for implementation was considered too tight.

Legislative and regulatory oversight

I want to briefly discuss another component of the Ombudsman’s work: its role in preventing injustice. Collective interventions are part of this role since they aim to prevent future reoccurrences of injustice. But there are also other ways the Ombudsman can take action.

Since the Ombudsman is an institution designated by the National Assembly, it plays a role as advisor to parliamentarians in order to support them in their legislative capacity as well as to monitor executive power. Our mandate includes suggesting legislative reforms or changes to laws when, in our opinion, the current socioeconomic situation has made certain provisions unsuitable. This is the reason why we examine all bills and draw up reports addressed to the parliamentary committee involved, when necessary.

The role that we play in government is one of regulatory oversight. We examine all relevant proposed regulations and provide comments to the minister responsible when we think improvements are necessary.

Once again, the relevance of our suggestions is based in large part on our knowledge of the realities on the ground. The impact of a carbon copy letter sent to the Ombudsman should not be underestimated. Even if it does not lead to a formal intervention regarding the complaint, be assured that the letter is read and transmitted to relevant teams, and that it contributes to our understanding of problems observed in the health and social services network. For example, our interventions regarding the certification of private nursing homes were based on assessments made as part of our investigations but also on other sources of information, meetings with stakeholders and testimony from victims of injustice.

Thus, do not hesitate to send the Ombudsman any information that you think could be of use.

Information about user rights and obligations

Information about citizen rights and obligations with regard to public services also plays a part in preventing injustice. A citizen who is better informed about his or her rights and obligations is better able to ensure that those rights and obligation are respected by public services.

In the health and social services network, you play a very important role in this matter. Section 212 of the Act respecting health services and social services recognizes that the functions of a users committee include informing users of their rights and obligations. Communicating information on rights reinforces empowerment.

Over the next five years, the Ombudsman intends to develop concrete programs to improve information on rights and obligations. This will undoubtedly include projects that specifically deal with user rights according to the Act respecting health services and social services or other similar acts.

In consideration of Québec’s diversifying population as well as the variable nature of this population’s ability to access information, the Ombudsman will pay particular attention to the clarity and accuracy of the information it transmits. By targeting relevant subjects and adapting messages and methods of communication to specific populations, it intends to contribute, as much as it can, to measures favouring high quality legal and administrative information about the relations between citizens and public services.

With regard more specifically to information on user rights, I would like to openly collaborate with you in order to better understand your needs and expectations. We could thus carry out informational projects on user rights with real added value since they would incorporate needs identified by those who work on the ground.

Conclusion

I would like to conclude by acknowledging your work and recognizing the importance of users and residents committees. Each of us, in our own way, according to our role, along with the necessary input of the local service quality and complaints commissioners, contributes to the respect of user rights and the improvement of service quality in institutions. Our engagement in frank and open communication, in a manner that respects our individual mandates, contributes to reinforcing the empowerment of all users.

Thank you all for taking the time to listen.