frsrdg · H304JO1 · 2015-11-06 00:00:00 — The decision notes that, if the individ- ual does not wish to organise their own personal assistance, the municipality is obligated to provide or outsource assistance, in consultation with the individual and, where appropriate, to impose a charge corresponding to the monetary sum that the individual is able to obtain in personal assistance benefits in accordance with Chapter 51 of the Social Insurance Code. JO furthermore points out that the individual’s right to ask the municipality to arrange personal assistance is based on provisions set out in the Act concerning Support and Service for Per- sons with Certain Functional Impairments (LSS) – provisions which a munici- pality cannot agree on in the same way as a private party. In accordance with LSS, it is ultimately the responsibility of the municipality to organise personal assistance for individuals who have been granted such measures. A municipal- ity cannot decline this responsibility. Consequently, in Municipality did not have grounds to decline its responsibility 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 2 015 /1 6:JO1 to provide personal assistance for the woman in question, and the Board is therefore criticised. Severe criticism to the psychiatric clinic at , , for treating a patient taken into care in accordance with the Compulsory Mental Care Act with ECT procedures outside of the county’s facilities (3953-2013) Care in accordance with LPT is to be provided within a care facility operated by a county council (Section 15 of LPT). A patient being cared for pursuant to LPT at the psychiatric clinic at was given electroconvulsive therapy (ECT) at the clinic at the same hospital, as part of their compulsory care. JO issues severe criticism regarding these ECT treat- ments being conducted, in violation of the provisions in LPT, at a care facility not operated by the county council. Case initiated by JO. The Regional Clinic of Forensic Psychiatry in , , is criticised for the formulation of decisions regarding restraints and isolation (6615-2012) During an inspection of the Regional Clinic of Forensic Psychiatry in Sunds- vall, JO noted that the clinic had made decisions for the restraint and isolation of patients to “last for a maximum of 72 hours”. Coercive measures are to be implemented as carefully as possible, and with the greatest possible considera- tion for the patient, to ensure that their integrity is not violated unnecessarily. During the period when the coercive measures are deemed to be necessary, they are to be increased or relaxed as the need changes in the individual case. There is therefore no predecided maximum period at the initiation of a coercive meas- ure. In conclusion, JO makes the assessment that decisions regarding restraints and isolation are not to be formulated in this way. The clinic is reprimanded for its formulation of these decisions. Criticism of the Forensic Psychiatry Clinic in , , regarding the clinic’s general regulations regarding computer and TV games (1170-2012) At an inspection of the Forensic Psychiatry Clinic in it emerged that the clinic had decided on general regulations that meant that the patients were not allowed certain types of computer or TV games. The Parliamentary Ombuds- man decided to investigate whether there is legal support for such rules. can decide on the general regulations to be adopted for local procedures. However, the rules may not restrict the freedom or rights of the patients in a that contravenes the law. In the opinion of the Parliamen- tary Ombudsman, games that can be played on a computer or a TV are covered by the freedom of information decreed in Chapter 2, Section 1 of the Instrument of Government. Legal grounds are required if this freedom is to be restricted. There are, however, no legal grounds for generally restricting the right of the patients to possess items such as those in question, and the Clinic is criticised 2 015 /1 6: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 for its regulations. Furthermore, the Parliamentary Ombudsman considers that it is not self-evident that a computer or video game with a certain content can, following assessment on a case-by-case basis, be confiscated by virtue of Sec- tion 21 of the Compulsory Mental Care Act (1991:1128) (LPT). reason to review this legislation, and a copy of the decision has therefore been sent to the Affairs for information. Serious criticism of Region’s Commissioned Primary due to a decision to close an antenatal unit which contravened the Board’s delegation of authority (2123-2013) in Region is a board in the sense implied by the Local Government Act (1991:900). ing to the Board’s own delegation of authority, it is the Board as such that is to decide on the closure of “service facilities”. Despite this, one such facility (an antenatal unit in ) was closed down following a non-standard deci- sion made at official level. A consequence of this was that when the time came to close the unit, there was no decision against which municipal members could appeal, in accordance with the rules of the Local Government Act in respect of the assessment of legality. The Parliamentary Ombudsman seriously criticises the Board’s procedures. Serious criticism of the Health and Social Care Inspectorate () for, inter alia, flawed justifications concerning two decisions in an oversight case In a complaint submitted to , a patient complained about the level of care and personal treatment she received from a dentist. tion and subjected the dentist to criticism in two decisions. to JO and submitted a complaint regarding ’s processing and deci- sions in the oversight case. In a statement to JO, admitted to the decisions being flawed, that they do not provide an accurate picture of the case and that they do not reflect the intended meaning. Decisions in oversight cases must be thorough and objective. The language must be clear, simple and comprehensi- It should not create any uncertainty in the reader regarding the circum- stances on which the assessment is based, and it must be clear how has reasoned – regardless of whether or not a decision results in criticism. cisions in the case in question have several flaws in these respects. As a result, has received serious criticism. Criticism of ’s healthcare services for their processing of applications regarding the transfer of activities from physiotherapists with partnership agreements in accordance with the (current) Physiotherapy Act (1993:1652) (681-2013) A private health care provider can get public funding for its activities by enter- ing into a partnership agreement with the county council in accordance with the provisions of the “compensation legislation”, i.e. the Care (Com- pensation) Act (1993:1651) and the Physiotherapy (Compensation) Act (1993:1652). From a legal point of view, a partnership agreement is a contract 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 2 015 /1 6:JO1 between the county council and the care provider and is not to be considered a decision made under public law. If the location of the activities has been regu- lated in the partnership agreement, any wish expressed by the care provider to move the activities will be considered a regular contractual matter to be nego- tiated by the parties concerned. The healthcare services have processed appli- cations for the relocation of activities covered by partnership agreements in a that has given the impression that their attitude to such an application is based on a decision made under public law. JO is critical of the County Coun- cil’s processing of these applications. Complaint against the Health and Social Care Inspectorate () regarding conflict of interest on the grounds of Facebook contacts, etc. (2772-2014) In a complaint to JO, a conflict of interest is claimed in the case an inspector at administering a supervision assignment related to health and ser- vices. Authorities must observe objectivity and impartiality in their activities (Chapter 1, Section 9 of the Instrument of Government). A conflict of interest is said to exist if there are special circumstances which are likely to undermine confidence in the impartiality of a party administering a given case. JO’s as- sessment is that the fact that the inspector was the superior of one of the re- ported persons during the 1990s and early 2000s – and the fact that they con- tinued to have sporadic work-related contact and limited contact via Facebook thereafter – has not constituted a conflict of interest on the part of the inspector in administering the supervision assignment. JO adds: one fundamental point is that requirements for independence and impartiality must be fulfilled with a certain . It may therefore be appropriate, where practicable – and espe- cially where activities such as supervision are concerned – for an officer that uncovers circumstances which may affect confidence in his or her impartiality in a case to transfer said case to a colleague, even if the circumstances are not of such a magnitude that they would constitute a conflict of interest. has received support for its action to request certain investigative material in a case concerning assistance compensation but is criticised for the investigation taking so long (5162-2013) In the decision it is noted that is responsible for leading the investigation and deciding which investigative data is required in order for the Agency to adopt a standpoint in a case. In the case in question, Försäkringskas- san had obtained a large amount of journal notes, some of which came from a child and adolescent psychiatry unit. Such an action is covered by the Agency’s investigative authority by virtue of Chapter 110, Section 14 of the Social In- surance Code. Regarding the complainant’s objection that the material acquired contained sensitive information, and that she had not consented to the procure- ment of this, the Parliamentary Ombudsman responded as follows. It is the au- thority in possession of the information requested, in this case, the health and services, that, in the event of a request from another authority, must take a view as to whether the information in question is confidential and, if so, 2 015 /1 6: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 whether it should be passed on nonetheless due to e.g., the individual concerned giving their consent. Furthermore, the Parliamentary Ombudsman stated that it is not obvious who should obtain the consent where required, and that the start- ing point should be that the health and services examine all \grounds for issuing or not issuing the information and, accordingly, handle the task of is therefore criticised, not for the actual investigative measures they took, but for the fact that the investigation has taken so long. ’s processing times in cases with a foreign connection ’s processing times in cases with a foreign connection are often unreasonably long. This is largely due to the difficulties that the Agency has in obtaining the necessary material from the relevant overseas authorities. To draw attention to these problems and to provoke thoughts regarding a pos- sible solution, the Parliamentary Ombudsman initiated this enquiry. a description of the relevant regulations and the measures taken, it is noted in the decision that there is great awareness of these problems at the Agency. Agency has reviewed its internal procedures and made the Government aware of major issues. Even if the opportunities for to further in- fluence the situation are limited, the Parliamentary Ombudsman still considers that it is possible, whilst awaiting the construction of an extended IT system, to bring about several improvements with relatively small resources, such as con- tinuing with the overhaul of reminder times and monitoring systems. is criticised for denying a legal representative access to information from their client’s case, citing that the client had an administrator (6231-2013) A lawyer, in his capacity as legal representative, had requested information re- garding their client’s case from , but he was denied access despite the fact that he held a power of attorney. understanding that since the client, the insured, had an administrator, then their consent had to be obtained before information could be handed out. sion, JO notes that persons who have an administrator retain their full legal competence and that they have the opportunity themselves to undertake legal transactions, such as, for example, entering into agreements or establishing powers of attorney – even within those areas where an administrator has been The fact that A.M. had an administrator is therefore of no signifi- cance, and should therefore have handled the legal repre- sentative’s request in the same way as if the request had been made by the insured party themselves. is criticised for its incorrect and slow handling of the legal representative’s request. Criticism of the for its handling of a request for re-examination (3491-2014) In a report received by JO, complaints were directed at the Swedish Pensions Agency due to its handling of a request for re-examination of a decision made 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 2 015 /1 6:JO1 in a case concerning housing supplements. When the case in question was ex- amined, it emerged that the Agency had not applied the amending rules found in Chapter 113, Section 3 of the Social Insurance Code. For this reason, JO pronounces in its decision that the should, on its own initiative, determine whether the conditions exist for amending a decision by virtue of Chapter 113, Section 3 of the Social Insurance Code prior to a re- examination, and that such a review should be conducted regularly in cases where the two month time limit that applies for re-examination has expired – before the cases are rejected. The journal notes should also state that a review has been conducted. is criticised for its deficient handling of the request for re-examination. is criticised for a lack of justification for a decision in respect of housing supplements (1900-2014) had requested supplementary information in a case concerning housing supplements and subsequently sent a reminder that the information was missing. Since the deadline for providing supplementary information had expired, the Agency decided to reject the application. The fol- lowing justification was given for the decision: “You have not submitted the information that the requested from you within the allotted time. Your application will therefore be rejected.” After having re- quested re-examination and having received a decision regarding which infor- mation was missing, the individual’s legal representative requested an exten- sion to . An extension was granted to . JO has no objections to the ’s examination of the case per se, but points out that the justification was not correct since the actual ground for the rejection was that there was insufficient data with which to substantiate the right to housing supplements. Furthermore, the justification should cite the pro- visions that the Agency has applied. No such reference was included in the decision in question. JO criticises the for its incor- rect justification. As far as the re-examination is concerned, JO feels that the Agency could have been more generous in its granting of the requested exten- sion. Furthermore, regarding the re-examination, it has emerged that over a month passed before the Agency started processing the case. JO criticises the Agency’s initial passiveness. Environmental protection, public health as well animal welfare Criticism of in Central for its failure to report a suspected breach of the Environmental Code (1806-2014) According to Chapter 26, Section 2 of the Environmental Code, a supervising authority is obligated to report any violations of the Code’s provisions to the or Public Prosecution Authority if illegal activities are suspected. is reprimanded for failing to report the fact that, for a period of time, mussel cultivation was being conducted on a protected shore- line without an exemption from the law on shoreline protection. 2 015 /1 6: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 in County by reason of the processing of an animal welfare case (1584-2014) In a case concerning the immediate forced custody of animals under the Swe- dish Animal Welfare Act, has implemented a process with a preliminary decision that is not supported by the Act. has been criticised for this, for not immediately informing the animal owner about the decision itself, and for not having pro- vided him with any information about how he could appeal the decision. Criticism of Board [] in Municipality regarding the processing time for an application for a permit in accordance with the Planning and Act (2010:900) (5738-2013) Chapter 9, Section 27 of the Planning and Act (2010:900) has provi- sions regarding the time limits for processing matters regarding per- mits and preliminary decisions. These time limits cannot be exceeded, not even if the applicant agrees to it. Serious criticism of the Municipality of ’s Environmental and handling of an application for planning permission in accordance with the Planning and Act (1987:10) The in which the Environmental and handled an application for planning permission for a wind power station cannot be per- ceived as anything other than pure obstruction. is therefore se- verely reprimanded. Severe criticism of Municipality’s Environmental and handling of a case relating to an intervention in accordance with the Planning and Act (6596-2013) In 2004, a property owner filed a report in accordance with the Planning and Act. Not until 2012, following several reminders, did the Committee actually start processing the matter. Instead of considering questions of conse- quences and interventions, the Committee handed the case over to a mediator and then noted the case as being closed. is therefore severely criticised. Criticism of in Municipality for its handling of a case regarding a preliminary decision in accordance with the Planning and Act, etc. (2675-2014) The JO decision reprimands providing infor- mation, in accordance with Chapter 9, Section 27 of the Planning and Act, stating that the processing time of a case regarding a preliminary decision had been extended. is also reprimanded for having notified the applicant that the period of appeal was extended despite such a decision not 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 2 015 /1 6:JO1 being possible to make, and for otherwise having given the applicant the im- pression that he had received a respite for filing an appeal. In addition to this, the decision contains statements about how the committees should ap- ply the rules regarding proof of receipt in Chapter 9, Section 27 of the Planning and Act. Criticism of the Environmental and in Municipality for the formulation of a condition in a preliminary decision according to the earlier Planning and Act (6167-2013) can issue a preliminary decision regarding planning permission. In the preliminary decision, the Committee can establish the con- ditions required. In a preliminary decision, a had stated that “one condition for the decision is that an agreement is concluded and ad- hered to regarding the of a neighbourhood street for providing access to the properties stated in the agreement”. JO’s decision notes that the meaning of the preliminary decision became unclear as a result of this condi- tion. In fact, the preliminary decision can be interpreted as permission having being refused under the conditions that prevailed when the Committee issued the preliminary decision. In any event, the condition meant that the content of the preliminary decision was thinned out to such a degree that the decision can be considered to have lost its permission-qualifying status. is therefore reprimanded. Criticism of the chairman of the Child and in Municipality for how a correction of a decision in confirmed board minutes has been done (581-2013) A decision by the Child and in Municipality was, due to an oversight, only partially recorded in the minutes of the meeting. This was not noticed when the minutes were confirmed. ’s chairman and secretary later decided, in accordance with Section 26 of the Administrative Procedure Act, to correct (i.e. in this case to supplement) the decision in the minutes so that the wording corresponded with what the Board had decided. The correction was done by having a “new” page replace the page with the decision in question. The new page did not include any notice about the cor- rection. According to the Parliamentary Ombudsman, documents (such as minutes) which contain a corrected decision must make it clear that a correction has been made, and what the correction was. ’s chairman is criticised for not having the corrected minutes include information that a correction had been made and what information had been added. Criticism of the chairman and one other member of the Child and in Municipality for confirming the minutes of a board meeting despite a decision item having been reworded (3339-2013) During a meeting of the Child and in Municipality it was decided that the child care allowance for children under the age of three 2 015 /1 6: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 should be removed. Before the minutes of the meeting had been confirmed, it was noted that the matter of the child care allowance should actually be tried by the municipal council. When the minutes were approved, the item had been reworded as a recommendation from the Board to the municipal council to re- move the child care allowance. The persons confirming the minutes of a board meeting shall check that the minutes are correct, i.e. that they reflect what was decided by the board, and confirm this with their signatures. Ombudsman criticises the chairman and one other member of the board for in this case confirming the minutes despite knowing that the wording of the item in question did not correspond to what the Board had decided. Criticism of a former head teacher at in the municipality of , due to the school having entered into an agreement regarding a father’s contact with his child at the school (1734-2013) The school’s main task is to promote learning. School staff should not get in- volved in parental disputes, as far as is possible. It is not the school’s job to take action in issues that concern a child’s contact with a parent or other close relative, and the basic premise must be that such contact takes place outside of At a meeting between a mother, who was a sole custodian of a child, and the school, represented by the head teacher among others, the school drew up a written agreement on matters including how the father’s visits to the school were to be organised. The mother signed the agreement and the father later verbally consented to it. The aim of the father’s visits was to meet the child, and the agreement was aimed at the question of how this contact should be The agreement contained several wordings that gave the impression that the school undertook to act in a certain way in connection with the contact The agreement led to the school being drawn into the parents’ conflict over access to the child. The former head teacher is therefore criticised for drawing up the agreement. Committees of chief guardians and chief guardians Criticism of in the Municipality of for insufficient justification of a decision to discharge an administrator, etc.