André Marin Reports

June 28, 2007 permalink

Ontario Ombudsman André Marin has released his Annual Report 2006-2007. Mr Marin recognizes that readers are more likely to respond to an entertaining report than a dull one, and has livened up the presentation with clever language and cartoons. Below we include the portions relating to children's aid societies.

The Ombudsman has posted the transcript of today's online chat.

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BEYOND SCRUTINY

At times we in the Office of the Ombudsman have to say “no” – and not only to complaints that do not have merit. We are forced to say “no” thousands of times a year to citizens with serious problems because of a discreditable technicality: We do not have jurisdiction. We have been shut out of what I like to call the MUSH sector, which stands for municipalities, universities, school boards, hospitals and long-term care facilities, and other organizations such as police and children’s aid societies. These areas consume the bulk of provincial budgets, and more importantly, they represent the most serious contacts that Ontarians can have with their government. Yet they are immune from our scrutiny.

Over the last year, I have continued the quest to offer oversight in these critically important areas, but to no avail. It is not a mission I initiated. Ever since the great Arthur Maloney, the first Ombudsman of Ontario, filed his 600-page post-retirement report in 1979, my predecessors have been calling for the modernization of this Office’s mandate. It has not happened in Ontario, even though most other provincial ombudsmen have jurisdiction over most of these critically sensitive sectors.

The failure of Ontario to permit its citizens to seek shelter in my Office when things go wrong within these zones of immunity is not due to lack of demand. As the next section of this report – “Oversight Denied” – documents, we have had to decline nearly 2,400 pleas for help involving the MUSH sector this past year alone. Thousands of Ontarians are seeking our help in areas that our statute and our website make clear are outside our purview. How many more complaints would we have if we could act on them? And support of Ombudsman oversight in these areas is not limited to those who are desperately seeking help – an online poll conducted by the Toronto Star in May 2007 indicated that of more than 1,800 respondents, some 94% were in favour of ombudsman oversight of Ontario hospitals.

It is not as if our Office is not up to overseeing these areas. As this report chronicles, our systemic investigations have been done professionally, efficiently and inexpensively and have produced a perfect track record of improvement. Our work has saved tax dollars, improved the quality of life of those who have sought our aid, and without the pain, uncertainty, expense and delay of litigation.

Nor can it be said that the MUSH sector is not in need of independent oversight. As the next section of this report explains, while there are bodies with jurisdiction over some of these areas, deeply disturbing gaps remain. Moreover, none of the empowered agencies has the same combination of independence, investigative experience and investigative powers as the Ombudsman’s Office.

Consider, for example, children’s aid societies (CASs). While spending irregularities at CASs are now subject to the review of the province’s Auditor General, their child protection policies and practices – which if flawed can literally be a matter of life and death for a child – are still not subject to investigative review or a rigorous complaints system.

The legacy of Jeffrey Baldwin, whose terrible death in 2002 highlighted failings in Ontario’s ability to safeguard our children, should have been the establishment of a powerful, independent mechanism to oversee and investigate CASs. Instead, when the Child and Family Services Statute Law Amendment Act, 2006 was proclaimed in force in November 2006, it simply provided for the limited expansion of the Child and Family Services Review Board’s mandate. The board may well be an effective adjudicative tribunal, but it has neither the power to conduct investigations in response to complaints nor the ability to address systemic problems.

In response to my advice that these new provisions fell far short of what was required, the government touted the review board – which remains an agency of the Ministry of Children and Youth Services – as “an independent, arm’s-length third party.” It described the new complaints process as “smoother, stronger and more objective” and even suggested that my Office would play a “key role” as a “critical check and balance,” because ultimately we would have jurisdiction to consider complaints about the Child and Family Services Review Board. What this fails to acknowledge is that my role in such cases would be restricted to investigating only the conduct of the board itself. I continue to be blocked from effectively investigating the complaints it receives against CASs.

To compound this situation, instead of being empowered to tackle significant issues regarding child welfare protection policies and practices, the board’s authority is largely focused on procedural defects relating to the administration of CASs. Substantive complaints regarding the services sought or received from children’s aid societies remain subject only to internal review. The promise of a system of external, transparent, and accountable oversight of the complaints process was never kept. While the government has also put forward Bill 165, the Provincial Advocate for Children and Youth Act, 2007, which establishes the creation of a new legislative officer to advocate on behalf of Ontario’s children and youth, this positive step is only a very small part of what is needed to ensure an effective system of protection for Ontario’s children. A strong, independent investigative oversight mechanism for complaints is still glaringly absent in Ontario.

ZONES OF IMMUNITY

As these recent inadequate legislative changes relating to the child protection area illustrate, the government has clearly chosen to keep this zone immune from Ombudsman oversight. As well, it has introduced legislation touching on oversight of the police (Bill 103, the Independent Police Review Act, 2007) and dealing with municipalities (Bill 130, the Municipal Statute Law Amendment Act, 2006), and largely shut us out of both. It has also refused to endorse opposition bills that would give my Office jurisdiction over children’s aid societies, school boards, hospitals and long-term care facilities.

All of this leaves unanswered the question of why government policy-makers have resisted strengthening oversight of the MUSH sector. I have heard rationalizations that range from standard excuses to the truly bizarre and unacceptable. For instance, it has been proposed that individuals can always launch a lawsuit if they are unhappy – an expensive, time-consuming and acrimonious process that would be out of the question for many Ontarians. In the case of children’s aid societies, it has even been suggested that the coroner’s pediatric death review committee was somehow an adequate stand-in for the Ombudsman – even though, unlike that committee, we would not have to await the death of a child to intercede. Then there’s the “we have always done it this way” excuse, which was used to explain the illogical exclusion of the Ombudsman from police oversight. The most incredible explanation might be the “it’s premature” evasion offered by the Ontario Hospital Association, advising that we should wait and see how the province’s praiseworthy but irrelevant “adverse events reporting” initiative works out.

I am reluctant to appear cynical, but it seems the real reason for all this is self-interest. Why would a government resist bringing this Office’s scrutiny into areas costing the provincial purse tens of billions of dollars? The short answer is because it can. If you and those who report to you have been permitted to do your work without someone looking over your shoulder, why would you want to change that? This, however, is not about politics but an important public principle. Institutions that receive funds from the province to perform a public duty should be subject to the full panoply of checks and balances, not some watered-down or incomplete version that allows them to operate in a zone of immunity. Until the Ombudsman’s mandate is modernized, thousands of Ontarians will have no recourse to an independent investigative oversight body in critically important areas of their lives, and the Office will remain powerless to help them.

A PARTING PROMISE

Since I have pursued the theme of promises here, let me end by making a few more on behalf of my team. We pledge to continue to work hard to hold the government to the promises that it has made and to put the “serve” back in public service. As well, we will continue to work to roll back zones of immunity and extend the remarkable tool of ombudsmanry to those Ontario citizens who experience problems in their dealings with their cities and towns, their schools, their hospitals, their police, and the child protection system.

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OVERSIGHT DENIED

Unlike in other provinces, the Ombudsman of Ontario does not have jurisdiction over what can be called the MUSH sector (comprising municipalities, universities, school boards and hospitals and long-term care facilities, as well as children’s aid societies and the police). In the past year, our Office has had to decline thousands of complaints because of this. The breakdown is as follows:

Selected Non-Jurisdictional Complaints and Inquiries Received During Fiscal Year 2006-2007 Total: 2,395
Universities 37
School Boards 102
Hospitals and Long-Term Care Facilities 237
Police and the O.C.C.P.S.* 376
Children’s Aid Societies 600
Municipalities 1043

* Ontario Civilian Commission on Police Services

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CHILDREN’S AID SOCIETIES

The Ombudsman continues to receive hundreds of complaints about children’s aid societies (CASs) – 600 in the past year, up from 436 in 2005-06 – but cannot investigate them. Many of these complaints and inquiries were from families concerned about the welfare of children under CAS care. Some alleged that children were sexually abused while in care, while two distraught families expressed concerns about the adequacy of CAS supervision after their children had died. Others spoke of retaliatory actions taken by CAS staff when families had complained. Some complainants were upset about CAS staff failing to exercise a duty of care; others that they overreacted where they should have shown restraint.

In December 2006, in response to the provincial Auditor General’s first-ever audit of children’s aid societies under an expanded mandate (he reviewed the four largest), the Ministry of Children and Youth Services announced the creation of an Accountability Office to monitor CAS performance. However, to date, children and their families have no recourse to an independent oversight body to investigate complaints about services sought or received from Ontario’s 53 children’s aid societies – a situation that does not exist in any other province.

“Mr. Marin isn’t asking for anything more than to simply answer the hundreds of complaints he receives every month. Until you’ve lost a child or have had your rights trampled on, you’ll never quite know just how important the Ombudsman’s job really is.”
– LETTER TO THE EDITOR, NEWMARKET/AURORA ERA BANNER, JULY 6, 2006

In December 2005, the Ombudsman appeared before the Standing Committee examining Bill 210, which amended the Child and Family Services Act. He urged that it be changed to allow the Ombudsman to investigate complaints about CASs. Instead, the amended Act – which came into force on Nov. 30, 2006 – merely broadened the adjudicative authority of the Child and Family Services Review Board. The regulations confirm that complaints about the accuracy of a CAS file or record must go through the CAS’s internal process before being raised with the board. The board has paltry remedial power, including steps such as ordering a “note of disagreement” to be added to a complainant’s file, confirming a CAS’s decision, or ordering a CAS to provide written reasons for a decision. Moreover, complaint areas within its jurisdiction are essentially procedural. The type of complaints that may be raised include, for example, that a CAS has failed to respond to a complaint within the required time frame; failed to comply with the complaint review procedure; failed to give a child or parent an opportunity to be represented when decisions affecting their interests are made; or failed to provide reasons for a decision. The board does not investigate complaints about the conduct of children’s aid societies and there remains no independent external body that can do so.

The limitations of this framework mean serious cases where children are being hurt or in danger will continue to fall through the cracks – and families will have nowhere to turn for independent investigative help. The Ombudsman recently had to turn away two such families:

THE STORY OF “J”

Eight-year-old J had been diagnosed with and treated for a number of psychiatric conditions when he was made a temporary ward of the CAS and placed in a group home. While there, he was prescribed additional medication. J’s grandparents became progressively concerned about his medication regime, and what they viewed as his deteriorating condition. They claim the CAS did not listen to their concerns. They were eventually able to obtain guardianship of J, supported by a psychologist who criticized the high doses of psychotropic drugs he had been subjected to while in CAS care. After a 10-month period of detoxification, J is now thriving. His grandparents raised a number of concerns with the Ombudsman, including the society’s refusal to act on their concerns, threats of loss of visitation while J was in the group home, failure to disclose alleged sexual abuse, and refusal to respond to their letters. We were forced to decline their complaint as out of our Office’s jurisdiction.

THE STORY OF SERENA AND SOPHIA CAMPIONE

After three-year-old Serena Campione and her one-year old sister Sophia were found dead in a Barrie apartment in October 2006, their mother was charged with two counts of first-degree murder. The deaths took place in the midst of acrimonious divorce proceedings and allegations of domestic assault against the girls’ father, Leonardo Campione. The girls’ mother had reportedly been hospitalized three times in the previous year for psychiatric problems, and the girls had been cared for by their paternal grandparents. After the tragic death of his daughters, Mr. Campione complained to the Ombudsman that the CAS staff responsible for supervising his children while in their mother’s care were negligent. He did not understand how his estranged wife, who had displayed such difficulty in caring for the children, could have been allowed custody. The Ombudsman is powerless to investigate his allegations, and the Child and Family Services Review Board does not have the power to investigate the actions of the CAS. Nor does it have the power to review systemic issues such as what process the society has in place to deal with placement and supervision of children when a parent has suffered acute psychiatric problems. These issues could potentially be examined by the Ontario coroner’s pediatric death review committee or a coroner’s inquest, given that the children are dead. However, there is no opportunity for independent investigative oversight to address errors of the kind alleged before they become fatal.

On April 5, 2006, MPP Andrea Horwath introduced a private member’s bill, Bill 88, the Ombudsman Amendment Act (Children’s Aid Societies), 2006, proposing that the Ombudsman be given authority to investigate the conduct of children’s aid societies. The bill died when the House was prorogued on June 5, 2007.

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ANOTHER MISSED OPPORTUNITY

“Despite all the government rhetoric that ‘children are our future,’ we in Ontario are choosing to rid ourselves of hundreds of these serious allegations every year by taking a trip to the dumpster and looking the other way.”
– OMBUDSMAN’S SUBMISSION ON BILL 165

On April 24, 2007, the Ombudsman made a submission to the Standing Committee on Justice Policy regarding Bill 165, the Provincial Advocate for Children and Youth Act, 2007, which made the Provincial Advocate for Children and Youth an Officer of the Legislative Assembly. He noted that while a welcome voice for children, the Advocate, unlike an Ombudsman, would have no investigative powers. Citing the hundreds of complaints about CASs that must be turned away from the Ombudsman’s Office every year, he repeated his call to be allowed to investigate children’s aid societies. Two members of the Committee moved that the Ombudsman’s authority be extended in this way, but were ruled out of order. The bill was passed and given Royal Assent on June 4, 2007.

Source: Annual Report 2006-2007 (pdf)