frsrdg · H204JO1 · 2014-11-11 00:00:00 — board meant there were no possibilities of giving the children the protection and support they were considered to need. criticism is expressed of the board for the shortcomings in its treatment of the case. The question of whether a social welfare board may employ a private security company to arrange a transport for a young person taken into care pursuant to the Care of (Special Provisions) Act (5187-2012) A social welfare board had decided that a young person taken into care pursuant to the Care of (Special Provisions) Act was to be moved from family care to a home for juveniles. The board requested transport assistance from the (judicial assistance), who responded that they did not intend to provide such assistance. The board then employed a private security company to arrange the transfer. As the security guards involved were undertaking security duties, the task assigned to them by the board included the exercise of official authority. grounds are required for an agency to delegate administrative tasks that involve the exercise of official authority to a private company. sistance pursuant to the Care of (Special Provision) Act is con- cerned no such grounds can be found in the act or any other statute. ployment of the security company was not, therefore, compatible with current In view of the special circumstances in this case, however, no criti- cism is expressed of the social welfare board. T H E S W E D I S H P A R L I A M E N T A R Y O M B U D S M E N B I L A G A 1 0 2 014 /1 5:JO1 criticism of a municipal board for its treatment of two cases on restriction of visiting rights pursuant to the Care of (Special Provisions) Act (1990:52) (6524-2012) The board had decided on a temporary restriction of the parents’ visiting rights by virtue of the second paragraph of Section 14 of the Care of (Special Provisions) Act. The board subsequently extended its decision to re- strict visiting rights after deliberation as provided in the third paragraph of Sec- tion 14 of the act. The Parliamentary Ombudsman points out that in extending the restriction of visiting rights after deliberation rather than by making a new decision the board had disregarded fundamental stipulations about how cases were to be managed. The Parliamentary Ombudsman expressed grave criticism of the board. The Parliamentary Ombudsman also criticised the board for failure to refer an appeal to the administrative court. Handling of a case involving determination of visiting rights pursuant to Section 14 of the Care of (Special Provisions) Act. The circumstance that the child’s custodian had not requested an official decision has no bearing on the board’s obligation to enquire into the question of visiting rights and make an official decision (2628-2013) In 2012 the custodian of a child taken into care pursuant to the Care of (Special Provisions) Act submitted a written request for ex- tended visiting rights. She did not receive a response to her request from the case officer until October 2012. An official decision on the extent of her visit- ing rights was not made until 2013. The Parliamentary Ombudsman states that when it is impossible to reach an agreement about visiting rights a request for an extension shall lead to an offi- cial decision against which, if not in favour of the individual, appeal can be made to the administrative court. Criticism is expressed of the social welfare board’s delay in dealing with the case and in making a decision on the extent of visiting rights. The question of whether the parents of a child taken into care are entitled to make video films of a supervised visit to the child etc. (6351-2012) The parents of a boy taken into care by virtue of an immediate care order pur- suant to the Care of (Special Provisions) Act met their son dur- ing a supervised visit. The social welfare board prohibited the individual who accompanied them as support to make video films of the visit. In the opinion of the Parliamentary Ombudsman the first assumption is that a parent may film his or her child during a visit even if the child has been taken into care pursuant to the Care of (Special Provisions) Act and the visit is supervised. The board may, however, prohibit video filming during a specific visit if the film could be considered inappropriate in a specific case. No such circumstances have come to light in the case concerned. The parents (and their supporting individual) should not therefore have been denied the possibility of making a video film of the parents’ visit to the child. 2 014 /1 5:JO1 B I L A G A 10 T H E S W E D I S H P A R L I A M E N T A R Y O M B U D S M E N A 17-year-old boy had been taken into care by virtue of Section 6 of the Care of (Special Provisions) Act and placed in a special juvenile centre: the question is whether the social welfare board can invoke Section 11 of the Act to restrict the boy’s contact with his father solely on the grounds that there is a lack of clarity in the investigation into a serious crime in which the boy may possibly have been involved (120-2012) An immediate care order was issued pursuant to Section 6 of the Care of the (Special Provisions) Act for a 17-year-old boy who was sus- pected together with his father of a serious crime and he was placed in a special juvenile centre. The decision to do so was made by in the municipality of . During his initial period in the centre the boy was not allowed to receive any telephone calls or visits as “everything relating to the investigation is still far too unclear”. One consequence of this decision was that the boy was allowed no contact with his father. A decision to restrict contact between the father and his son would have been acceptable if it had been necessary for the boy’s treatment programme. has not even claimed that the restriction was jus- tified by the kind of grounds usually linked to the treatment of the young man. For this reason Section 11 of the Act provides no grounds for the board to re- strict contact in the way it did. A decision on a temporary prohibition to move may not be made solely to prevent contact between a custodian and his or her children on a specific occasion (6394-2012) A complaint was submitted to the Parliamentary Ombudsmen about in the for its management of a case concerning a girl with a voluntary placement in family care. Some of the complaints dealt with questions relating the way in which her removal from care had been pro- hibited. When children are placed in family care on a voluntary basis the fundamen- tal assumption is that their guardians decide where they are to live and whether they are to move back to their homes. The Care of (Special Provisions) Act does, however, contain provisions that make it possible on cer- tain conditions to prevent guardians from moving children from family care placements. These provisions are intended to safeguard children from being moved too abruptly and separated from the parents providing family care. In this particular case the guardian (the girl’s father) had announced on one occasion that he intended to exercise his right to contact with his child for an entire weekend on specific dates. When the father was travelling to collect the girl against her will, the chair of the board issued a temporary decision to pro- hibit here from being taken away from the placement. The reason given for this decision was that the father intended to collect the girl against her will and that there was a manifest risk that her health and development could be harmed by removal from family care. In the adjudication the Parliamentary Ombudsman states that the regulations on prohibiting movement only concern situations in which a guardian intends T H E S W E D I S H P A R L I A M E N T A R Y O M B U D S M E N B I L A G A 1 0 2 014 /1 5:JO1 to remove a child, in other words change where the child is going to live. For this reason there can be no question of invoking prohibition of movement to prevent guardians from having contact with their children on a specific occa- sion. There was nothing to suggest in this case that the father intended that the child should go on living with him after the period of contact had ended. On the basis of the enquiry to which the parliamentary ombudsman had access there were therefore no legal grounds for the decision that was made. The adjudication also contains criticism of the board for shortcomings in the decision itself about the temporary prohibition of movement and for the man- agement of a request from the father for the child to be returned to her home. In some cases these shortcomings are of a serious nature. A copy of the adju- dication was therefore sent to the Health and Social Care Inspectorate. criticism of a social welfare board for delays in submitting an appeal against a decision about reconsideration of care pursuant to the Care of (Special Provisions) Act to the administrative court (6620- 2012) A child had been placed in care by virtue of Section 3 of the Care of (Special Provisions) Act. The social welfare board in re- viewed the placement as laid down in the third paragraph of Section 13 of the act and decided, among other things, that it was to continue. The child’s custo- dian appealed against this decision. Instead of submitting the appeal to the ad- ministrative court, the board started an enquiry into whether the care order should be terminated. The board then decided it was to continue. When the child’s custodian appealed against this second decision both appeals were for- warded to the administrative court. This means that more than three months elapsed before the administrative court was given a chance to review the first appeal, which according to the court could to some extent be considered to have had an impact on the outcome of the case. The provision on the right to appeal against care orders pursuant to Section 3 of the Care of (Special Provisions) Act is one of its fundamental features. After assessing whether the appeal had been submitted within the time allowed, the board should have forwarded it without delay to the administrative court. criticism is expressed of the board for the shortcomings in its man- agement of the case. The Care of Abusers (Special Provisions) Act The question of a new decision on an immediate care order pursuant to Section 13 of the Care of Abusers (Special Provisions) Act after a previous decision had lapsed because of failure to submit it to an administrative court in due time (7099-2013) The Care of Abusers (Special Provisions) Act lays down that those in need of treatment in order to put an end to a current addiction problem can be subject to compulsory institutional treatment. The decision on treatment of this kind is made by an administrative court at the request of a social welfare board. 2 014 /1 5:JO1 B I L A G A 10 T H E S W E D I S H P A R L I A M E N T A R Y O M B U D S M E N is no time to wait for the court’s decision, a board may, in certain circum- stances, decide to issue an immediate care order. Once this has been done, the decision must be submitted to the administrative court no later than on the fol- If the court approves, an application for compulsory institutional treatment must be submitted to the court within a week. order lapses automatically. A complaint from in the mu- nicipality of included the following information. the board about treatment pursuant to the Care of Abusers (Special Provisions) Act for an abuser who had been taken into immediate care was not received by the court within the time allowed. This was the result of a mistake when the application was faxed to the court and meant that the immediate care order no A new decision on a care order was not accepted by the court on the grounds that two care orders cannot be based on the same reasons. It is unfortunate that an administrative error results in an abuser not being given the treatment he or she needs. The Parliamentary Ombudsman’s adjudication includes the following ob- The Care of (Special Provisions) Act contains sim- ilar provisions to those in the Care of Abusers (Special Provisions) Act that apply to these situations. Certain statements in the travaux préliminaires to the Care of (Special Provisions) Act and certain adjudications is- sued by the Parliamentary Ombudsmen dealing with the application of this leg- islation should be able to offer guidance in the situation described in the com- The board is probably unable to decide on a new care order when a previous order has lapsed because the application for treatment was not submitted in due The lapse of the care order does not mean, however, that the application for treatment has also lapsed. In this kind of situation one possible course the board could adopt would be to request the court to issue an immediate care order in connection with the application for compulsory institutional treatment. The Parliamentary Ombudsman concluded the case without expressing criti- cism of the board. The question of whether an institution for the treatment of drug abusers was able to introduce a routine for dealing with post that meant that internees regularly had to open all incoming letters in the presence of its staff (2793- During an inspection of the institution for the treatment of drug abusers in Hess- leby operated by it was noted that the institution had a routine for the distribution of post that meant that the internees opened all incoming letters in the presence of the staff. about inspection had, however, been made in any individual case. The Parliamentary Ombudsman’s adjudication states that no general inspec- tion of an internee’s incoming items of post is permissible. made in each individual case if the requirements for doing so exist. tution was criticised for this inadmissible surveillance of post. T H E S W E D I S H P A R L I A M E N T A R Y O M B U D S M E N B I L A G A 1 0 2 014 /1 5:JO1 Support and service for persons with certain functional impairments The question of the requirement to communicate information included in a case report on the basis of daily routines (5569-2012) In a case dealing with support and service for the functionally impaired a case officer submitted the report of her enquiry and proposed a decision without the applicant being first enabled to express an opinion about the information gath- ered by the case officer from the applicant’s daily routines. In several respects the information acquired contradicted information submitted by the applicant and also seems to have had a decisive impact on the administrative decision to reject the application. In view of the important role the acquired information played in this appraisal, the written report on the daily routines should have been communicated to the applicant pursuant to Section 17 of the Administra- tive Procedures Act before the decision was announced. Criticism is expressed of the administration for this and a number of other shortcomings in the man- agement of the case. Handling of a case relating to personal assistance pursuant to the Act on Support and Service for Persons with Certain Functional Impairments, including whether a municipality can delay dealing with an application until the has made a decision on an assistance grant (5076-2012) After a woman had applied in for personal assistance pursuant to the Act on Support and Service for Persons with Certain Functional Impair- ments to the board for health and social care, it took three months for the board to initiate an enquiry. When the enquiry began the board notified the that the woman could be assumed to be entitled to an assistance grant as provided by the Social Insurance Code. During a visit to the woman’s home in February 2012, in which a case officer from the Social In- surance Agency also participated, it was agreed that the board would postpone its enquiry until the Agency had reached a decision. The Parliamentary Ombudsman states that it is doubtful whether it is at all possible to reach an agreement to place the municipality’s enquiry “on hold” pending the enquiry and decision of the . If this does occur, it is important at all events to ensure that the individual is informed of the potential consequences. Reaching such an agreement does not mean that the municipality can remain completely passive while the Agency’s enquiry is taking place. Criticism is expressed of the board for taking considerably longer to deal with this case than can be considered acceptable for a matter of this kind and which was partly the result of the passivity that characterised the board’s ac- tions during the time in which the was carrying out its enquiry. The board is also criticised for the fact that no record was made of the agreement to keep its enquiry “on hold”. 2 014 /1 5:JO1 B I L A G A 10 T H E S W E D I S H P A R L I A M E N T A R Y O M B U D S M E N criticism of a forensic psychiatric clinic for handcuffing a patient under treatment by virtue of the Compulsory Mental Care Act (1991:1128) even though there were no legal grounds for such a measure. criticism of the physician in charge for not examining the patient personally before every review (extension) of periods of physical restraint (4471-2011) An individual undergoing treatment pursuant to the Compulsory Mental Care Act at the regional forensic psychiatric clinic in was kept under physi- cal restraint from 22 until 24 January 2011. The physician made continuous decisions to extend the period of restraint. These decisions were made over the phone and almost two days elapsed until the physician herself examined the patient before deciding on another extension. Some of these decisions were not recorded in the patient’s records. The patient was handcuffed partly before the application of restraints, while being placed in the bed with the restraints, as well as when the restraints were reapplied after he had been released in order to shower or relieve himself. The Parliamentary Ombudsman expresses grave criticism of the physician in charge for not making personal examinations of the patient before each re- view of the decision on (extension of) the period of restraint. Criticism is also expressed of the inadequate records. In the adjudication the Parliamentary Ombudsman points out that the Com- pulsory Mental Care Act provides no support for the practice of handcuffing patients undergoing treatment pursuant to its provisions. criticism is ex- pressed of the clinic for the use of handcuffs on patients, which is a breach of the protection provided by the constitution against physical violation. Criticism of a forensic psychiatric clinic for the practice of “demarcating” patients assessed as needing to be housed in restricted areas with less stimulating environments and contact with other patients (1169-2012) After an inspection of the forensic psychiatric clinic in , the Parliamen- tary Ombudsman decided to enquire into how the clinic had dealt with a patient who had been held under restraint as well as its practice of “demarcation” and how this could be distinguished from the coercive measure of isolation. In the adjudication the Parliamentary Ombudsman stresses the importance of careful records of any coercive measure adopted and decisions made so that it is not unclear by whom and when a decision was made during any subsequent inspection. The clinic is criticised, for instance, for patient records from which it was not possible to come to any firm conclusions about whether decisions to readmit patients to secure units were made before they had been subject to restraint. The Parliamentary Ombudsman’s enquiry also disclosed that the clinic adopted a special practice – demarcation – for patients considered to need to be housed in restricted areas with less stimulating environments and contact with other patients. Separation – isolation – is a coercive measure that the law states may only be adopted when certain requirements are fulfilled. The Parlia- mentary Ombudsman has no objection, per se, to nursing staff agreeing with a T H E S W E D I S H P A R L I A M E N T A R Y O M B U D S M E N B I L A G A 1 0 2 014 /1 5:JO1 patient that he or she is to stay in a certain area for the sake of peace and quiet. However, the Parliamentary Ombudsman is critical in a number of respects of the clinic’s use of a procedure and a concept that is so similar to the coercive measure of isolation. The Parliamentary Ombudsman states for instance that the room in which demarcated patients are kept is unacceptable for this parti- cular purpose. Criticism of the for its application of the constitutional prohibition against determining the purpose for which documents are requested (5734-2012) A journalist complained to the Parliamentary Ombudsmen and said that he had approached the to request certain infor- mation, upon which – before he even had time to make his request – he had been asked what he wanted it for. In the adjudication the Parliamentary Om- budsman states that the identity of the person making a request may of course be important when it comes to evaluating any potential harm that it may give rise to but it is the nature of the information requested that must be the point of departure and that it is therefore never relevant to ask for the identity of the applicant or their intentions before it is obvious what kind of information is being requested. No criticism is expressed of the for failing to provide information about the country of domicile of an individual whose personal data was subject to secrecy but, on the other hand, for providing erroneous information in another informative document and in a decision In dealing with a case concerning income support the disclosed information about the country in which an insured person issued with an identity protection order was living. The adjudication states that it is difficult to determine when the geographical area in which an individual with an identity protection order is living has to be kept secret and this has to be decided from case to case, for instance, on the basis of how large the area is. In this case the Parliamentary Ombudsman found that whether or not the country in which an insured individual is living is at all subject to secrecy is a matter of discussion but that this notwithstanding the was not prevented from divulging the information concerned by virtue of the provision on breach of secrecy in Section 2 of Chapter 10 of the Public Access to Information and Secrecy Act (2009:400). The disclosure of this information does not therefore lead to any criticism from the Parliamentary Ombudsman. Criticism of the for shortcomings in the grounds given for a decision to reclaim benefit (6804-2012) provided inadequate grounds for a decision on recovery in merely stating that the insured individual’s points of view had been 2 014 /1 5:JO1 B I L A G A 10 T H E S W E D I S H P A R L I A M E N T A R Y O M B U D S M E N taken into consideration without accounting for what points of view and infor- mation had been considered and how the agency had evaluated them. judication states that a justification of this kind that fails to answer the question of why a specific assessment has been made does not fulfil its purpose and cannot therefore be considered satisfactory. In addition, before reviewing its decision the had offered the insured individual an op- portunity to “check” the proposed grounds for the outcome of its review against the grounds given in the original decision. Making an offer of this kind in this context is described as particularly remarkable and it is pointed out that a re- view of a decision entails a complete appraisal of the facts in the case that is totally independent of the original decision. Criticism of the for shortcomings in the grounds given for decisions on sickness benefit (513-2013) has failed to provide grounds for several deci-