Helsetilsynet

In September 2007, the Norwegian Board of Health Supervision took the decision to impose a coercive fine. This was the first time that a such a decision has been made. The reason for the decision was failure to follow instructions to meet statutory requirements related to health services. The decision was made against Western Norway Regional Health Authority (the Health Authority). For over two years the Health Authority failed to follow instructions to ensure that people with acute mental illness in Health Bergen Health Trust (the Health Trust) received health services in accordance with statutory requirements.

In addition to ensuring that people in the region receive specialized health services, regional health authorities have responsibility for ensuring that health services are provided in accordance with statutory requirements. This case illustrates the difficulty of getting the Health Authority to take this responsibility seriously.

The Norwegian Board of Health Supervision issued instructions to the Health Authority because occupancy rates in acute psychiatric units/short-stay units in the Health Trust were consistently in excess of capacity. Patients have been accommodated in places not intended for the purpose (for example, in corridors or in day-rooms). Such a situation in acute psychiatric units and short-stay departments is not in line with sound professional standards, and can have adverse effects for patients. The Health Authority has not followed instructions to rectify this situation.

Responsibility for ensuring that essential health services are provided

According to the Specialized Health Services Act, the regional health authorities have responsibility for ensuring that the population in the health region is offered specialized health services, and that the health services that are provided meet both professional standards and statutory requirements. This means that the regional health authorities must organize and manage services in such a way that this responsibility is fulfilled, and they must carry out, evaluate and adjust their activities accordingly.
 
Their responsibility can be divided into four areas:

Responsibility for planning

The regional health authorities must assess, analyse and plan how to provide adequate health services to the population in the health region. This includes being familiar with the legislation that regulates health services, having an overview of the health care needs of the population, and identifying areas where there is a danger that health services may be deficient. In developing the plan for the region, a risk and vulnerability analysis related to implementation of the plan must be carried out. The authorities must also plan how to deal with the situation if health services are deficient, or in danger of becoming deficient. 

Responsibility for implementing plans and measures

The regional health authorities have responsibility for implementing their plans and measures as intended, and at the time intended, so that health services are provided in accordance with statutory requirements.

Responsibility for evaluation
The regional health authorities must evaluate whether plans and measures have been implemented, what effect the plans and measures have had, and whether deficiencies in services have arisen or are in danger of arising. If deficiencies are identified, they must be remedied so that the health trusts provide adequate health services. The regional health authorities must collect information about management of the services, in order for them to evaluate services.

Responsibility for correcting deficiencies
The regional health authorities have responsibility for ensuring that health services meet statutory requirements. This involves a duty to react when health services are deficient, and to make appropriate adjustments and corrections. They must also ensure that such corrective measures have the desired effect, and that further measures are implemented if necessary.

The Norwegian Board of Health Supervision found that the Health Authority was not meeting its responsibility to ensure that essential health services were provided, despite the fact that on 9 March 2005 we issued instructions to the health authority to do so. At the time when occupancy rates were consistently in excess of capacity in acute psychiatric units/short-stay units in the Health Trust, the Health Authority could not document that the plans were being evaluated. In the monthly reports that the Health Authority has a duty to produce, there was no assessment of whether measures were implemented, or whether they had any effect. In addition, the Health Authority was unable to demonstrate that corrective measures had been implemented to ensure that health services were adequate.

Coercive fine

A coercive fine is a measure that can be used to compel an organization to follow instructions that have been issued. If instructions are not followed within the deadline, a fine can be imposed. The purpose of the fine is not to punish the organization, but to compel them to meet the statutory requirements. A warning about an impending fine has the desired effect if instructions are followed within the deadline, so that imposing the fine becomes unnecessary. In other words, a fine can be avoided by following instructions.

In accordance with the Specialized Health Services Act, the Norwegian Board of Health can impose a fine for every day, week or month after the deadline, until the requirements are met. The fine can also be given as a single amount.

The deadline given to the Health Authority was 1 October 2007. The fine that would be imposed if the deadline was not met was NOK 600 000 per month. The Health Authority was instructed to ensure that occupancy rates were not in excess of capacity in acute psychiatric units/short-stay units in the Health Trust, and to document that responsibility to ensure that essential health services were provided was being fulfilled.

Does this measure work?
One view is that giving a fine to health services that already have limited resources can result in health services becoming even worse. Another view is that a fine can lead to an increased level of conflict, and can hinder the process of giving guidance to the health service provider. Giving guidance may be more constructive than giving a fine.

On the other hand, a fine can be regarded as a necessary measure for ensuring that the population receives essential health services in accordance with statutory requirements. Fines can only be imposed in cases where the situation is unlawful and inadequate, and where there is a danger that patients may suffer. In addition, a fine is only imposed if the health service provider does not follow instructions issued by the Norwegian Board of Health Supervision. Finally, our possibility to impose a fine must be seen in the context of the possibility for other authorities to use this coercive measure. It is important for health services to understand that meeting requirements laid down in health legislation is just as important as meeting requirements laid down in other types of legislation.

The Norwegian Board of Health Supervision is currently assessing whether the Health Authority met the requirements given in the instructions within the deadline. This will determine whether the Health Authority will actually be given a fine or not. So far, the Health Authority has reported that after the deadline of 1 October 2007 occupancy rates have not been in excess of capacity in acute psychiatric units/short-stay units in the Health Trust. If the Health Authority can also document that responsibility to ensure that essential health services are provided is being fulfilled, then it seems that this coercive measure does actually work.

Decision to impose a coercive file because of failure to follow instructions to provide health services in accordance with statutory requirements – Western Norway Regional Health Authority. Letter of 28 September 2007 from the Norwegian Board of Health Supervision to Western Norway Regional Health Authority. Pdf in Norwegian.