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annual report 2010
being uncertain about the legal basis of cases involving limiting the hours when
relatives may visit nursing home residents and about how to handle such cases.
We are occasionally approached by local authorities and citizens in cases where
a conflict has arisen between nursing home personnel or management and relatives and where a case concerning visiting restrictions is under consideration or
has already been initiated.
On the basis of the specific case, the Ombudsman therefore wrote to the Min
istry of Social Affairs. The purpose of the letter was to draw the Ministry’s
attention to the challenges faced by local authorities when having to deal with
a not uncommon problem on the basis of an unwritten and relatively unknown
authority. At the same time, the local authorities must consider Article 8 of the
Human Rights Convention. Finally, they have to include the Public Administration Act and other administration procedural rules in their consideration of
the case if the outcome is a decision within the meaning of the Public Administration Act.
The Ombudsman pointed out that, in recent years, social legislation has become
increasingly detailed within many areas and that comprehensive guides to the
various provisions have been issued. This may make it easier for the authorities
that have to apply and enforce the rules. The Ombudsman asked the Ministry
of Social Affairs whether it believed there was a need for regulation by statute
of the issue of visiting restrictions at nursing homes and other similar institutions – partly by rules stating in which situations visiting restrictions may be
applied, partly by rules concerning the procedure to be followed when a need
for visiting restrictions arises. The Ombudsman had no opinion about the possible content of such written rules; as is well known, he is unable to consider
legislation policy issues (section 7(1) of the Ombudsman Act). He was therefore
merely referring to a technical change from unwritten (and therefore to some
extent unknown and uncertain) law to written law.
The Ombudsman’s enquiry was positively received by the Ministry, which set
up a working group to consider the matter. In extension of this, the Minister of
Social Affairs announced in the government’s programme of bills for 2010/11
that a bill to amend the Social Services Act (limitation of local authorities’ ability to impose visiting restrictions) would be introduced in early 2011. The bill
was introduced on 16 March 2011 and passed on 24 May 2011 (Act No. 627 of
14 June 2011). The Act came into force on 1 July 2011.
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