The Parliamentary Ombudsmen (JO) are appointed by the Swedish Riksdag (parliament) to ensure that public authorities and their staff comply with the laws and other statutes governing their actions.
In a decision on 24 August 2016 (case no. 1185-2015) the ombudsman highlighted a number of serious failures in the Chief Guardians’ Board’s processing of a case regarding a trustee. In the matter currently under review, it is the same trustee and, inter alia, the Chief Guardians’ Board’s handling of the trustee’s application for a fee in three cases. In its decision the ombudsman levels is seriously critical of the Chief Guardians’ Board for the following: A. The Chief Guardians’ Board’s review of the annual and year-end accounts has in two cases taken an unacceptably long time; they were completed at the maximum approximately a year and eight months after the board received the documents. B. The Chief Guardians’ Board’s handling of the trustee’s request for a fee has in three cases taken an unacceptably long time; the decision to reject the trustee’s request for a fee took at the maximum nearly a year and eight months to make. C. A letter to the trustee from the Chief Guardians’ Board is phrased so that the reader gets the impression that the trustee would not be receiving a fee for his work for the three years, despite the board not yet having made any such decision. D. The Chief Guardians’ Board has reviewed annual accounts without accounting for the results of its review.
In this case, the ombudsman has highlighted a number of serious failures in the Chief Guardians’ Board’s processing of a case regarding a trustee. A. The Chief Guardians’ Board’s review of the annual and year-end accounts has in two cases taken an unacceptably long time; it was completed at the maximum approximately a year and eight months after the board received the documents. B. The Chief Guardians’ Board did give the trustee the opportunity to respond to observations about the annual accounts until several years later in some cases. C. The Chief Guardians’ Board has not documented the board’s contacts with the trustee as regards the observations. D. The Chief Guardians’ Board has shown serious failure in fulfilling its obligations in its supervision of the trustee’s assignment by not taking steps despite having observed at an early stage that there were question marks about how the assignment was handled. For these serious failures, the Chief Guardians’ Board receives serious criticism for its overall handling of this case.
The Swedish Social Insurance Agency rejected M.J’s application for an activity grant. Before the two-month period for requesting a decision review had elapsed, M.J. handed in two letters which, inter alia, showed that he wished to read the source documentation for the decision, and that he required more time so he could read and evaluate the documentation. The letters were addressed in the manner required for a request for a review. It was not until the ombudsman began the investigation that the Social Insurance Agency noted M.J.s intentions to request a review, and it was only then that he was sent all the documentation that he had requested. The ombudsman criticises the Social Insurance Agency for these delays and argues that M.J’s request for more time, i.e. for a respite, should have led to M.J’s letter being treated as a request for a review. The fact that the letters had also been addressed within the review request period means that they should have been treated as such a request anyway. In the ombudsman’s view, when a written document arrives at the authority within the two-month review request period, the authority should presume that the individual will request a review as soon as there are signs suggesting that the document was sent in response to the decision.
Whilst a preliminary investigation was ongoing, the injured party changed her surname. Her personal details were to be kept confidential, owing to the suspect. The new surname was provided in the preliminary investigation report and was revealed to the suspect. In the decision, JO ascertains that the suspect has an unconditional right to obtain the details included in the preliminary investigation report. As a provision in the public notice of the preliminary investigation stated that the injured party's name was to be included in the preliminary investigation report, JO believes it is not possible to withhold the name from the suspect. JO states that it is of fundamental importance that a suspect is aware of the injured party’s identity in order to be able to effectively defend themselves. If the identity is already known to the suspect, however, there is usually no reason, with regard to the suspect’s legal security, to reveal a name that the injured party changed to during the preliminary investigation period. According to JO, changes to the existing regulations should be considered, with the aim of increasing confidentiality for an injured party in such a situation. The decision has therefore been submitted to the Ministry of Justice.
A person was granted economic support in the form of a placement in a drug-free assisted living facility. The placement was voluntary. However, to be able to be placed in an assisted living facility, the individual was required to adhere to the rules at the facility. These included regular compulsory urine samples and breathalyser tests. The matter in question is whether these drug tests comply with the protection against invasive body searches afforded in Chapter 2, Article 6 of the Swedish Instrument of Government. Every citizen has protection against forced physical intrusion (Chapter 2, Article 6 of the Instrument of Government). The law permits limitation of this protection under certain circumstances. An intrusion is forced if the authority disposes over instruments to enforce the measure or if the individual's opposition is broken down via a threat of sanction. The requirement for a person applying for economic support to submit a urine sample or any other drug test has no support within the Swedish Social Services Act. To conduct such tests therefore requires that the individual gives their voluntary consent. JO inter alia states the following: When choosing an intervention, it is important that the individual receives clear information and really understands the conditions for the measure and the options that are available to them. From the individual’s perspective, requiring a urine sample and breathalyser test can be interpreted as intrusive as the individual cannot receive the intervention in question or must leave the facility if they do not undergo drug testing in accordance with the rules at the facility. However the individual does not have any unconditional right to a particular intervention by social services. If they do not want to provide a urine sample, support can be provided in another form. Discharge and the offer of other accommodation, which may be the consequence of not providing consent, can therefore not be interpreted as a sanction entailing that the requirements for drug testing are to be viewed as invasive. JO therefore does not direct any criticism at the administration.
In the decision, JO makes statements regarding the suspect's right to access preliminary investigation material and, with reference to secrecy, the possibilities to limit this right of access. JO provides an account of the different views on the matter that have been expressed in legislative history, practice and doctrine, and ascertains that the law applicable in this case is that the suspect's access right can be restricted, pursuant to Chapter 10, Section 3, first paragraph of the Swedish Public Access to Information and Secrecy Act (OSL). According to JO, there are good grounds for such an order. The legal grounds upon which this access right is based cannot be considered to require that the suspect is to have an unconditional right to access all information that has come to light during the preliminary investigation. This includes information that is of no significance to the criminal investigation. Naturally however, the right of access may not be restricted to such an extent, or relate to such information, that it jeopardises or infringes the suspect's ability to fully safeguard their rights or prepare their defence. In the preliminary investigation in question, information was extracted from the injured party's mobile telephone. The entire record of the extraction was included in the provisional preliminary investigation report issued to the defence, despite the fact that information of no significance to the criminal investigation is not to be included in a preliminary investigation report. According to JO, an injured party should be able to assume that the law enforcement agencies undertake the relevant measures to avoid the dissemination of private information. The prosecutor responsible has been criticised for insufficient control over what information extracted from the telephone was included in the preliminary investigation report. Furthermore, this led to information, which most likely could have been kept confidential as per Chapter 10, Section 3, first paragraph of OSL, being revealed to the suspect.
A patient was being treated under forensic psychiatric care as an outpatient, on the condition that he would refrain from taking drugs and undergo drug testing. At one visit to the clinic, the patient provided a urine sample that screened positive for amphetamines. As a result, it was suspected that the patient had used drugs in violation of the terms for his care. The patient was informed that he could either remain at the clinic voluntarily until the urine sample had been verified, or a decision would be made to convert the outpatient care to inpatient forensic psychiatric care. The patient stayed on the unit for seven days. The screening sample had then been tested and showed a negative result. In a report to the Parliamentary Ombudsman (JO), the patient complained about the senior consultants involved and stated that he had been deprived of his liberty as he did not stay at the clinic voluntarily. JO begins by stating that a result provided during a screening test should be used with caution, as the result is not sufficiently reliable. As a positive result may be false, actions against a patient should not be taken based on one such test. JO criticises the senior consultants involved and believes that the basis for their decision was incorrect; that it was a given that the patient was to receive inpatient care until the drug test had been verified. Instead, it would have been better to employ a cautionary principle and thoroughly evaluate whether other less invasive measures would have sufficed. JO expresses further criticism towards one senior consultant for not requesting that the sample be prioritised. The results of the analysis were decisive to whether or not he should remain under inpatient care. Regarding the question of the voluntary nature of the patient's stay at the clinic, JO states the following: For consent to form the basis for a medical procedure, there must be substantial evidence that consent is voluntary. A medical procedure may not be performed under duress. The patient must have received information on any alternatives available. It is only then that the patient may give their informed consent. The same reasoning may be applied to matters of admission to inpatient care according to the Health and Medical Service Act (HSL). In a situation such as the one outlined here, where the patient clearly found himself in a state of dependence on the doctors, high standards must be set to ensure that actions are voluntary. JO's assessment is that the content of the information provided to the patient did not meet the requirements for clarity, objectivity and completeness necessary for the patient to make a well-founded decision. Notes in the medical journal also suggest that the information was provided in such a way that the patient could not have understood that he had any other option than to stay at the clinic. JO therefore considers that, under these conditions in which the patient had reason to believe he must follow the doctors’ demands, genuine consent was not provided. The patient also clearly expressed his discontent. It must have been clear to medical staff that it [consent] had not been given. The health care service should therefore have decided whether the conditions for readmission for in-patient forensic psychiatric care were fulfilled and, that being the case, should have applied to the administrative court or made an interim order for such care. Through its handling, the health care service deprived the patient of his right to have his case reviewed by a court of law. In this respect, the Parliamentary Ombudsman is seriously critical of the chief medical officers concerned. In conclusion, the ombudsman addresses the fact that the patient was not allowed any time outside the clinic while the test results were waiting to be verified. This, of course, is inconsistent with the supposition that this was a case of voluntary care. As the patient had not been admitted for in-patient forensic psychiatric care, there were no grounds for preventing him from leaving the clinic. The ombudsman is critical of the chief medical officer who made the decision in this case. According to the ombudsman, the chief medical officers who handled the case failed to fulfil their obligations in several respects and their handling entailed an infringement of the patient’s freedom of movement which was not legally justified. The ombudsman takes a very serious view of this.
During the autumn, JO Stefan Holgersson will begin a series of inspections focusing on unaccompanied minors to see if their basic rights are being respected.
On 9 June, Justice of the Supreme Administrative Court Elisabeth Rynning was elected unanimously by Parliament to be the new Chief Parliamentary Ombudsman.
The Parliamentary Ombudsmen's overall statements for each supervisory area the year 2014/15. »»
The Swedish Parliamentary Ombudsmen - JOBox 16327 • SE-103 26 Stockholm • SwedenVisiting Address: Västra Trädgårdsgatan 4 AOpening hours: 9.00–12.00, 13.00–15.00