Elisabeth Rynning - summary 2018/19

Chief Parliamentary Ombudsman, supervisory area 2

Bild på chefsJO Elisabeth Rynning. Foto: Pernille Tofte Photographer: JO

The supervision in supervisory area 2 comprises the Prison and Probation Service, the Armed Forces, the health and medical care services as well as taxation and population registration. The area also includes a number of government agencies, such as Finansinspektionen (the financial supervisory authority), the Competition Authority, the Equality Ombudsman and the National Board for Consumer Disputes (ARN).

The two largest case groups within my supervisory area, the Prison and Probation Service and the national health services, cover a large number of activities through which people can be deprived of their liberty. I.e. correctional facilities and detention centres as well as institutions for compulsory psychiatric care and forensic psychiatric care. I must therefore pay particular attention to the Parliamentary Ombudsmen’s commission as Sweden’s national preventive mechanism pursuant to the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT), which has largely been implemented with the help of our OPCAT Unit. This unit is also organised into supervisory area 2, whereas the inspections of the OPCAT Unit are always carried out on behalf of the Ombudsman supervising the authority where the inspection is to take place. A more detailed presentation of the OPCAT Unit’s operations is provided in Opcat Activities overview 2018/19.

Supervisory area 2 received 2,057 new complaints in the operating year 2018/2019, which is 300 more than the year before. The increase is partly due to me assuming responsibility, in February 2018, for the case group taxation and population registration, but also to the increased number of complaints concerning the Prison and Probation Service.

During the year, a total of 2,087 supervisory cases were decided on at the division. However, 291 of these were cases that were deemed, already upon arrival to the office of the Parliamentary Ombudsmen, to fall outside the scope of the Parliamentary Ombudsmen’s supervision, for example, complaints against private operations, these complaints were consequently delegated to a head of division for dismissal. A total 20 per cent of the cases in supervisory area 2 were delegated to heads of division.

Within my areas of responsibility, 25 inspections were carried out during the year, of which 20 were within the scope of the OPCAT Unit’s operations. Together with colleagues from the division, I have inspected the correctional facilities Tidaholm and Salberga, the detention centre Salberga, as well as the Regional Forensic Psychiatric Clinic in Vadstena and the Child and Adolescent Psychiatry Service (BUP) in Malmö. I also commissioned a head of division to inspect the Probation Service in Skövde. I inspected the Regional Forensic Psychiatric Clinic in Växjö and the detention centre in Växjö together with the OPCAT Unit. On my commission, the OPCAT Unit carried out another 18 inspections, of, among other things, the conditions for inmates at various detention centres but also at correctional facilities and within the psychiatric service (read more in Opcat Activities overview 2018/19).

Two enquiries were closed during the year, and twelve new cases were opened. Among the issues brought up in the new cases are the conditions for the Prison and Probation Service’s use of security units for placement of other inmates than those who have been issued a decision on security placement; the Prison and Probation Service’s work to prevent isolation; the circumstances under which an inmate is put in restraints by the Prison and Probation Service; the meaning of the term “care facility” and the scope of an apprehension decision pursuant to Section 6 of the Compulsory Mental Care Act; as well as a care provider’s actions in response to the suspicion that a patient had been subjected to a criminal act by another patient.

No prosecution has been brought during the year. I opened four preliminary investigations into confidentiality breaches, of which two were closed (one during the year, and one shortly after). I furthermore opened a preliminary investigation regarding professional misconduct, but this too was closed around the end of the operating year.

In one case, I gave a presentation regarding a legislative review, to the Government pursuant to Section 4 of the Act with Instructions for the Parliamentary Ombudsmen. This case, which concerned the conditions for the Health and Social Care Inspectorate to consider the patient records of a nurse, within the scope of an examination of that nurse’s professional conduct, is presented in the section on health and medical health services below.

The Prison and Probation Service

As in previous years, the majority of the work within supervisory area 2 concerns cases regarding the Prison and Probation Services. The number of complaints against the Prison and Probation Service increased in the past year. 1,041 new supervisory cases were registered within this area. This made the Prison and Probation Service the second largest case group at the Parliamentary Ombudsmen, in the operational year 2018/2019, subsequent to the social services.

It is often difficult to establish any specific reason why changes occur in the influx of cases, but I am able to note that the Prison and Probation Service has been struggling with overcrowding over the year. The occupancy rate in detention centres prompted me to commission the OPCAT Unit to open a special enquiry into the impacts on the inmates (ref. no. O 19-2019, read more in Opcat Activities overview 2018/19). The case is still open, and I will thus return to this issue.

One decision highlighted in this year’s annual report concerns the prerequisites of a process in compliance to the rule of law regarding a case on a warning issued pursuant to the Imprisonment Act (ref no. 6230-2017). In this case, an inmate filed a complaint because he, following an incident with a fellow inmate, was incorrectly suspected of misconduct due to a report drawn up by a prison officer. During a number of subsequent hearings, the inmate had requested that the prison should hand over a recording of the incident from a surveillance camera. However, the prison did not review the recording, but instead issued him with a warning on threats and violence against a fellow inmate. Even though the recording was referred to in his appeal of the warning, it was not preserved, but had been recorded over when the appeal reached the administrative court. In my decision, I noted that the report of the suspected misconduct was inadequate. I was therefore critical of the Prison and Probation Service for failing to review the surveillance tape at the request of the inmate. The principle of official examination, which is now set out in Section 23 of the Administrative Procedure Act, dictates that an authority is obligated to ensure that a case is investigated to the extent required by its nature. In cases of suspected misconduct, a surveillance tape could, in my opinion, be an important piece of evidence when it is a question of one person’s word against that of another. The issue is especially pressing in the case of serious accusations of violence and threats, where a warning can influence the assessment of whether to postpone a conditional release. The Prison and Probation Service should furthermore have informed the inmate that the recording would be taped over, and of his possibility to make a request to see the recording, pursuant to the rules of access to official records, in order to have the matter tried in court. I was finally critical of the written decision issuing the warning which omitted a clarification of what action the warning referred to.

Another decision in this year’s annual report concerns the Prison and Probation Service’s possibilities to limit the number of cigarettes that an inmate is permitted to bring when going for a walk (ref. no. 4642-2016). Pursuant to Chapter 1, Section 6 of the Act on Imprisonment, the enforcement of a sentence may not entail any other limitations of the inmate’s freedom than what is prescribed by law or what is otherwise necessary to maintain order and safety. The requirement for legality and proportionality in the matter of restrictions has occurred in several cases, regarding inmates’ smoking opportunities. Even if smoking is an activity with well-known health risks, and which has gradually become subject to an increasing number of restrictions in society, it has also been considered a freedom that adults are traditionally entitled to (see, for example, judgment RÅ 2010 of the Supreme Administrative Court, ref. no. 9). A comparatively large proportion of the Prison and Probation Service’s inmates are smokers. Since the Prison and Probation Service introduced a general smoking ban indoors at its prisons, the inmates’ opportunities to smoke have primarily been limited to their walking time. However, there have been instances of inmates smuggling cigarettes inside following a walk and attempting to light these in various ways, which to varying degrees has constituted a fire hazard. In my opinion, there is nothing to prevent a prison from introducing limitations on the permitted number of cigarettes, either through local procedures or through a special decision due to specific incidents, provided that such limitations are necessary for safety reasons. However, in order to deal with this issue, different organisations have been permitted to use different solutions. At some prisons, the number of cigarettes per walk has been limited to three or five, while other prisons do not have any such limitations. In the case in question, the prison in Gävle had made a decision to limit the number of cigarettes to two per inmate and walk, i.e. normally two per day. In my opinion, this was an extensive limitation, but I did not believe that I had sufficient evidence to argue that it was disproportionate. However, it is important that similar cases are treated the same way by the Prison and Probation Service, and that the proportionality requirement is actually upheld in the activities. If a less restrictive measure is sufficient, it must be preferred. Even if the conditions for alternative ways of managing safety can differ somewhat between prisons, it is understandable that the regulation of the inmates’ access to cigarettes in conjunction with walks can be perceived as arbitrary. In my conclusion, I therefore stated that I expect the Prison and Probation Service to review the different methods used by the prison to prevent contraband cigarettes on the units and consider the possibilities of effectuating a more cohesive approach to this issue. I have noted that the Prison and Probation Service has since made a request to the Government to introduce a general smoking ban in prisons and detention centres. I will monitor this issue with great interest.

The health and medical care services

The case group regarding health and medical care services includes voluntary health and medical care services as well as compulsory mental care and forensic psychiatric care, along with a number of central government agencies, such as the National Board of Forensic Medicine, the Medical Products Agency, the Public Health Agency and parts of the Health and Social Care Inspectorate’s activities. The increase in complaints against the health and medical care services in the last annual report was reversed in 2018/2019 and the number of new supervisory cases in this area stopped at 305.

From this area, I would first like to mention a couple of decisions from the annual report that illustrate the balancing of interests between the protection of privacy in health data regarding individuals on the one hand, and the need to protect the life and health of other people on the other. Secrecy provisions in the health and medical service generally indicates that information regarding health or other circumstances of an individual may not be disclosed, unless it is evident that such information could be disclosed without causing any harm to that individual or their family. This means that there is a presumption of secrecy. Individuals need to feel comfortable when voluntarily providing sensitive information to healthcare professionals. Ultimately, the privacy protection is essential to patient safety and to the individual’s trust in health and medical care services. At the same time, there may be situations where other societal interests need to be taken into consideration and the presumption of secrecy therefore has many exceptions, where the law condones or even prescribes the disclosure of data. It is important, not least in consideration of the rule of law, that regulations as well as their implementation meets reasonable requirements on predictability.

One decision regards a doctor’s duty to report incidents pursuant to the Driving Licence Act, which is intended to prevent accidents caused by individuals who are unfit to drive a vehicle for medical reasons (ref. no. 474-2016). Among others, this applies to a doctor who, upon reviewing a patient’s records, finds it likely that the patient is unfit, for medical reasons, to have a driving licence and must report this circumstance to the Transport Agency if the driving licence holder opposes continued examination or investigation, a so-called investigative report. In this case, a patient had been admitted for compulsory psychiatric care for a period of time, but during this time, no report was sent to the Transport Agency. A couple of months later, a senior physician at a patient facility, where the driving licence holder was a patient, became aware that the patient was employed as a professional driver. She then went through the patient’s records and made an investigative report to the Transport Agency. Prior to this, the patient had not been asked whether he was opposed to an examination or investigation. At the time in question, the senior physician did not participate in the care of the patient but she believed that she needed the information to fulfil her obligation, i.e. to make an investigative report to the Transport Agency. In my decision, I note that the wording of the provision in the Driving Licence Act states that a doctor only becomes obligated to make an investigative report once they have examined the patient or gone over their records, thus finding the patient likely to be medically unfit to hold a driving licence. The provision as such does not give a doctor the right to go through a patient’s records to investigate whether it may be unsuitable for the patient to have a driving licence. In the case in question, the doctor did not have the right to look at data in the patient’s records. Furthermore, the doctor made her investigative report to the Transport Agency without having checked whether the patient opposed an examination or investigation. The doctor was criticised for inadequate processing, but I held that the Regional Executive Committee also appeared to have misunderstood the relationship between the duty to report and the provisions of the Patient Data Act. The guidelines provided by the authorities involved should, of course, be formulated to avoid such misunderstandings. I therefore sent a copy of the decision to the National Board of Health and Welfare and the Transport Agency.

Another decision raises the question concerning the Health and Social Care Inspectorate’s possibilities of obtaining patient records of healthcare professionals where their professional activities are the subject of scrutiny. In one such case, the Health and Social Care Inspectorate had obtained patient records of a nurse and used information from those records as the basis of a report to the Medical Responsibility Board (ref. no. 1239-2018). In support of this measure, the Health and Social Care Inspectorate referred to a provision in Chapter 7, Section 20 of the Patient Safety Act regarding the obligation of care providers and healthcare professionals to disclose documents, material and information concerning the operation to the Health and Social Care Inspectorate. For the safety of the patients, it is of course important that care is not provided by staff who are unable, due to illness or abuse, to practice their profession. For this reason, I understand the Health and Social Care Inspectorate’s need to present concrete and verified circumstances in a report to the Medical Responsibility Board. However, obtaining patient records of an individual, in a matter concerning their professional practice, is a very invasive measure, which in my opinion requires clear legal grounds. The cited provision is generally formulated, and should in my opinion rather be understood to mean that the obligation for care providers and healthcare professionals to provide the Health and Social Care Inspectorate’s with documents and information applies to the person(s) subject to the supervision. In other words, I do not believe that the wording of the provision warrants the conclusion that a care provider, who is not the subject of supervision, would be obligated to provide patient records belonging to healthcare professionals. In my decision, I state that the ambiguity is highly unsatisfactory, and pursuant to Section 4 of the Act with Instructions for the Parliamentary Ombudsmen, I have notified the Government of the need for a legislative review.

Exchange of data between government agencies

Unfortunately, it is not unusual for the Parliamentary Ombudsmen to observe situations where shortcomings in the exchange of data between government agencies has been to the detriment of an individual. From the previous year’s annual report, I would like to mention two decisions, where the result of such shortcomings led to individuals being deprived of their liberty without legal grounds, which is of course unacceptable.

One case concerned a person who was being taken to a forensic psychiatric examination unit following a court ruling (ref. no. 5710-2017 and 7734-2017). An official at the National Board of Forensic Medicine made a request for police assistance to enforce the admission decision, attaching the underlying court rulings. However, the National Board of Forensic Medicine official was not authorised to request such assistance, and the admission decision furthermore had not gained legal force on the date when the person was to be taken into care according to the request. Despite these circumstances, the Police Authority provided the assistance before the admission decision had gained legal force. As a result, the person concerned was wrongly deprived of liberty for an estimated duration of one hour. Regarding the handling of the matter by the National Board of Forensic Medicine, I noted that the regulation, as well as the authority’s written guidelines, provides clear information about when a decision may be enforced and who may request assistance. However, since the National Board of Forensic Medicine’s disciplinary board has issued the employee concerned with a warning for their actions, the Parliamentary Ombudsman does not find any reason to further comment on the processing at the National Board of Forensic Medicine. Concerning the Police Authority’s processing of the matter, the officer concerned had not verified that the person requesting assistance was authorised to do so, even though their manual states that this must be done. Nor should the officer concerned have relied on the information provided regarding the time of enforcement. The Police Authority could therefore not avoid criticism for the deficiencies in the formal verification in the assistance case.

In the second case, a person was deprived of liberty for a couple of hours due to being wanted for the serving of a prison sentence (ref. no. 4737-2016 and 1363-2017). However, there were no legal grounds for the deprivation of liberty as the Supreme Court had decided a few months prior that no measures to enforce the prison sentence were to be taken until further notice. Information in this regard was not available to the Police Authority officer involved. The investigation of the case showed that the incident was largely caused by an unfortunate combination of circumstances, but to some extent also by inadequate procedures at the law enforcement agencies. The matter highlights how important it is to have correct dispatch and notification of judgments and decisions and well-conceived and effective procedures for information exchange between and within authorities. However, this particular case probably involved a fairly unusual situation, which may have been difficult for the law enforcement agencies to predict, which is why I refrained from criticism. The Police Authority, the Supreme Court and the Prison and Probation Service all expressed their intention to review their procedures, and the Prison and Probation Service had to some extent already made changes to theirs. This was of course a positive development, but I still felt that it could not be ruled out that the risk of wrongful deprivation of liberty could also be reduced through regulatory changes to ensure that relevant authorities receive information about decisions for suspension of prison sentences. A copy of the decision was therefore sent to the Ministry of Justice and to the Riksdag Committee on Justice.

The impartiality requirement

Section 3, first paragraph of the Act with Instructions for the Parliamentary Ombudsmen states that the Ombudsmen must especially ensure that the authorities government agencies comply with the requirements for objectivity and impartiality set out in the Instrument of Government. The regulation referred to is Chapter 1, Section 9 of the Instrument of Government, which states that courts, administrative agencies and others that perform public administrative tasks must consider everyone equal before the law and observe objectivity and impartiality. This provision is the constitutional basis for the rules regarding disqualification set out in the Administrative Procedure Act and the prohibition of secondary employment that can damage trust set out in the Public Employment Act. The requirement for objectivity and impartiality covers not only the actual processing of a case and the real grounds for a decision, but it is also of significance to how the actions of an authority are perceived. Ultimately, this is a matter regarding the public’s confidence in the public management.

Issues relating predominately to conflicts of interest regularly arise at many authorities, and can often lead to difficult considerations. From this year’s annual report, I want to highlight a decision concerning association affiliations of government employees. In this context, it is important that the freedom of association and freedom of speech are protected by the Instrument of Government, even if these freedoms may be limited by law under certain circumstances.

The case concerned a prosecuting counsel at the Legal, Financial and Public Procurement Agency who represented the authority in cases concerning hydropower (ref. no. 753-2017). The complainant, who was the chair of a hydropower association, felt that the counsel had a conflicting interest in the hydropower cases since he had been involved in organisations with interests opposing those of the hydropower associations, and had appeared with such organisations at seminars. The investigation showed, among other things, that the counsel was a member of the interest organisation Älvräddarna [save the rivers] and that he, in his official capacity, had made statements regarding the legal aspects of hydropower in a film produced by the organisation in collaboration with other stakeholders. The question was partly whether the counsel’s affiliation with the organisation and participation in the film could be the type of trust-damaging secondary occupation that the Legal, Financial and Public Procurement Agency should have intervened against, and partly whether the counsel could be considered to have a conflict of interest in handling hydropower cases, in accordance with the provision on bias set out in the Administrative Procedure Act.

When it comes to the question of a trust-damaging secondary occupation, I noted that the Labour Court recently issued a judgment stating that the freedom of association meant that the actual membership in a certain association cannot be used to the detriment of an employee (AD 2018 no. 45). The court found that the same circumstances applied, in view of the freedom of expression, to any opinions that the employee might express within the scope of the association’s campaign activities. In the case of the counsel, I found that it had not been established that he had any other involvement in the association Älvräddarna beyond membership, nor that he had participated in the film in question in a manner that brought his impartiality as a government official into question. There are thus no grounds to criticise the Legal, Financial and Public Procurement Agency for failure to take action against the counsel’s involvement with the association. However, this in itself does not mean that the counsel could not be considered to have a conflict of interest in individual cases or in cases of a certain nature.

For it to be considered bias, however, the circumstances must reasonably be such that an objective observer could have legitimate doubts regarding the counsel’s impartiality and independence (cf., e.g., Supreme Court judgment NJA 2010 p. 274). I found that the counsel’s membership in Älvräddarna in itself did not constitute sufficient grounds for bias, even though his involvement in the association had given rise to strong objections against his impartiality, for example from the power plant owners concerned. Nor did the investigation support any other circumstance that would disqualify the counsel in hydropower cases.

Even if the investigation did not provide grounds for criticism, I found it necessary to underline the importance of authorities endeavouring to maintain the public’s trust in its activities and remaining vigilant with regard to discovering circumstances that could entail a risk of their impartiality being questioned. In this context, I reminded the authority of the responsibility of its management and the responsibility entailed in the role as a government employee.

Updated 11/15/2019