Citing "…dozens of complaints from upset patients, their families, and from whistleblowers within the medical transportation industry who feel that patient safety is being compromised and that the government's response to these issues has been inadequate…" the Ontario Ombudsman, André Marin, announced on January 11, 2011 that the Special Ombudsman Response Team ("SORT") is conducting an investigation into non-emergency medical transfers.[1]

The investigation will probe whether the Ministry of Health and Long-Term Care (the "MOHLTC") and the Ministry of Transportation are adequately protecting the public with respect to non-emergency patient transfers. SORT will look into complaints that have included allegations of: (i) patient injuries; (ii) unsafe vehicles; (iii) inadequate infection controls; (iv) staff that lack the necessary training to assist patients who experience medical difficulties during a transfer; and (v) insufficient official regulation or oversight.

Non-Emergency Patient Transfers

Municipalities[2] are permitted to utilize the services of private non-ambulance medical transport services ("MTS") in order to transport patients who are not in an emergency situation.[3] The vehicles used in these situations are not considered to be "ambulances" within the meaning of the Ambulance Act.[4] Hospitals will often utilize the services of MTS operators for the transport of patients who are in need of an escort but are neither critical nor meet the criteria for ambulance services set out in the Ambulance Act. According to the Ombudsman there are approximately 500,000 non-emergency patient transfers between hospitals, medical institutions, nursing homes and other facilities each year.

The Ambulance Act defines an "ambulance" as:

a conveyance used or intended to be used for the transportation of persons who,

(a) have suffered a trauma or an acute onset of illness either of which could endanger their life, limb or function, or

(b) have been judged by a physician or a health care provider designated by a physician to be in an unstable medical condition and to require, while being transported, the care of a physician, nurse, other health care provider, emergency medical attendant or paramedic, and the use of a stretcher.[5] [Emphasis added]

If a patient meets the criteria set out in the Ambulance Act, MTS operators cannot provide transport services to that patient. MTS operators cannot hold themselves out to the public as providing the type of "ambulance services" defined in the Ambulance Act. MTS operators are not certified or regulated by statute and do not need to comply with the certification regime set out in the Ambulance Act.[6] Municipalities are able to pass by-laws mandating a certification regime, but to our knowledge, none have done so.

Transportation by ambulances, as defined by the Ambulance Act, is partially covered by the Ontario Health Insurance Plan ("OHIP") and individuals may carry insurance to pay for the difference between what is covered and the part of the service not paid by OHIP. Transportation by MTS operators is not insured by the province. MTS operators are permitted to set their own fees and individuals are permitted to carry private insurance to cover the costs.[7]

Powers of the Ombudsman

The Ontario Ombudsman looks into complaints and conducts investigations about services provided by the government of Ontario and its organizations.[8] The Ombudsman Act[9] requires individuals as well as government officials and staff to co-operate with the Ombudsman and provide information during an investigation. During the course of an investigation, the Ombudsman may, in his discretion, refuse to investigate the matter.[10] Investigations of the Ombudsman are conducted in private[11] and the Ombudsman is not subject to the Freedom of Information and Protection of Privacy Act.[12]

If, after completing an investigation:

[t]he Ombudsman is of the opinion that the decision, recommendation, act or omission which was the subject-matter of the investigation,

(a) appears to have been contrary to law;

(b) was unreasonable, unjust, oppressive, or improperly discriminatory, or was in accordance with a rule of law or a provision of any Act or a practice that is or may be unreasonable, unjust, oppressive, or improperly discriminatory;

(c) was based wholly or partly on a mistake of law or fact; or

(d) was wrong;

or

that in the making of the decision or recommendation, or in the doing or omission of the act, a discretionary power has been exercised for an improper purpose or on irrelevant grounds or on the taking into account of irrelevant considerations, or that, in the case of a decision made in the exercise of any discretionary power, reasons should have been given for the decision;

and

[t]he Ombudsman is of the opinion:

(a) that the matter should be referred to the appropriate authority for further consideration;

(b) that the omission should be rectified;

(c) that the decision or recommendation should be cancelled or varied;

(d) that any practice on which the decision, recommendation, act or omission was based should be altered;

(e) that any law on which the decision, recommendation, act or omission was based should be reconsidered;

(f) that reasons should have been given for the decision or recommendation; or

(g) that any other steps should be taken,

the Ombudsman must report his opinion, along with the reasons for his opinion, to the appropriate governmental organization. He may make any recommendations he thinks fit. He may request that the governmental organization notify him, within a specified time, of the steps, if any, that it proposes to take to give effect to his recommendations. He must send a copy of his report and recommendations to the minister concerned.[13]

The Ombudsman does not have the authority to require the government to take any action; however, if, in the opinion of the Ombudsman, appropriate action has not been taken within a reasonable time after the report, the Ombudsman may send a copy of the report and recommendations to the Premier, and may after that make a report to the Legislative Assembly. Other than for a lack of jurisdiction, no proceeding or decision of the Ombudsman may be challenged, reviewed, quashed or called in question in any court.[14]

Notwithstanding that the investigations of the Ombudsman are private, if the Ombudsman produces a report, SORT will usually publish the report within weeks of the Ombudsman receiving a response to the recommendations from the relevant ministry. The ministry response is generally included as an appendix to the report. If a report is not produced because the issue has been resolved, SORT typically publishes a summary of the Ombudsman's findings from the investigation.

Summary

The Ombudsman is expected to complete his investigation by mid-April. In the event the Ombudsman makes recommendations to impose tighter controls on how MTS operators provide their services, there will likely be a significant impact on hospitals and ambulance providers, at least in the interim, which will need to be considered. It is clear that MTS operators have an important role to play in the delivery of non-emergency transport services. The challenge for the relevant ministries will be to ensure that those services are being utilized appropriately while ensuring patient safety.