Vol. 208 No. 4
I move amendment No. 1:
In subsection (1), after line 30, to insert the following paragraph:—
"(e) nursing homes dealing largely with acute medical and surgical work and under the administrative medical control of staff of recognised consultant status."
As Deputy P. Hogan (South Tipperary) is not here, perhaps I could shorten the proceedings on the amendment by saying that I am disposed to accept it in principle but it will require some re-drafting. As it stands it is much too general and too ambiguous to be incorporated in the statute. If the amendment is withdrawn, I shall meet the Deputy's point on Report Stage.
I move amendment No. 2:
In subsection (1), line 7, to delete "may" and insert "shall".
The question is whether it shall be made mandatory, in explicit terms, on the Minister, to make regulations or whether there is to be some form of discretion. I am in some doubt as to what that discretion will be. It may be taken that the Minister gets authority from the Legislature to make regulations. He is disposed to make them and there is no use saying he shall.
It will probably be interpreted as "shall".
I gather from the Minister that the word "may" shall have the effect of "shall".
Not necessarily.
The Minister said in the Seanad on 13th November, 1963, in reply to Senator Stanford, who more or less raised the same point as is being raised in this amendment:
I would refer the Senator to a decision given by a late Chief Justice in, I think, 1934 or 1935 against the Minister for Finance in which he said that the word "may" can always be construed as meaning "shall".
There is just one point I did not mention at that time. The point the Chief Justice made may be important in this context as it is. As the Dáil had passed an Estimate, providing money for the payment of these pensions, then in that context I think he said the word "may" may really be construed as meaning "shall", and as mandatory upon the Minister. I never agreed with that decision but there it is.
I move amendment No. 3:
In subsection (1), line 10, after "homes," to insert "effect the registration of all such premises and".
This is a matter which was raised on the Second Stage.
This relates to the question of registration. My position in that regard is that the case for registration and the power of inspection has not been proved. I regard this Bill as a halfway measure, if you like, something which will enable us, where it is reported abuses exist, to have an inspection undertaken of the place concerned. I think that is as far as we are justified in going on any evidence that has been submitted heretofore.
This Bill, we feel, is useless unless there is registration of nursing homes by qualified inspectors. We feel that the whole value of the Bill is defeated by the mere fact that a requirement is made of the nursing home, which is in existence, to notify the authorities, within a month or, in the case of a home, which is about to be established, to notify one month before starting. That is a simple notification but it is not registration in the sense in which a hotel or guesthouse has to be registered by Bord Fáilte. Surely it is more important in the case of homes, which deal explicitly with the health of people who are ill, that they should be registered, when under the present law it is required that a hotel or guesthouse should be registered. Hotels and guesthouses must be registered, presumably to ensure that they maintain certain standards for visitors patronising them and they are subject to inspection, if necessary, by the Minister's officials. In view of the fact that the Minister is bringing in some measure, then he should go the whole way and have compulsory registration and inspection of these homes.
I cannot see how the Minister will make regulations unless he has some standard in mind. Surely it should be possible to lay down some standard, requiring any home in existence at the moment to come up to that standard and putting those who may open homes for the types of people covered by this Bill in the future under notice as to the standards required. The Minister should consider having registration followed by inspection by his officials, in the interests of both those who are already running homes and those who may start such homes in the future.
I find myself in disagreement with Deputy Kyne and those others associated with this amendment. As I indicated on Second Reading, my view with regard to the object and purpose of this Bill is quite clear. Once the Minister was faced with a situation in which there was an expression of either individual or collective uneasiness with regard to the manner in which nursing homes were being run, it became incumbent on him to take some action. The measure he proposes here is action taken in relation to nursing homes run for private profit. Correctly, in my view, the Minister has had regard to the fact that those who run nursing homes for private profit are supplying a social need which it would be very difficult —I would say almost impossible—to supply if these people were not permitted to continue.
There are in this city and throughout the country hundreds, possibly thousands, of sick, chronically ill, incapacitated and infirm people who have limited means, whose family and other circumstances require that they must fend for themselves more or less in some kind of decent boarding house, or nursing home of one kind or another. These are the people who are normally lodged in these houses and nursing homes. I suggest to Deputy Kyne and the Labour Party that they are serving no useful purpose in making it more difficult for people to maintain and run homes such as those I have mentioned throughout the country. If they proceed to encourage full regimentation by the State, the provision of standards and so on, then the cost will rise so steeply that people of limited means in the autumn of their lives will not be able to afford these homes. The homes will not be able to cater for them. A large gap will be created in a system in which there already is a gap and the State will have to come in in one way or another.
Broadly speaking, I do not believe the State would be able to provide the services that are being provided at present. The Minister has, I think, gone sufficiently far. It is reasonable that the Minister for Health and the Department should know where these homes are. It is correct that homes run for private profit should be registered so that people might know where they are. If, in fact, a complaint is made which may be subsequently well-founded—I regard this as highly improbable—then it will be possible to deal with that complaint. The Bill should only go as far as is necessary in relation to homes maintained for private profit. There is a variety of homes not run for private profit, run out of a sense of dedication by religious of one kind or another. I imagine we would do a great disservice to our community if we started a system now of compelling registration of all these homes. We would do a disservice to the people we seek to help under this Bill. I know Deputy Kyne to be a member of this House who is consistently concerned for the underprivileged and those who have difficulties of one kind or another, but I would urge on him to have second thoughts with regard to seeking an extension of the scope and purpose of this Bill.
I am glad Deputy O'Higgins supports the attitude I have taken up in relation to this Bill. Registration always presupposes prior inspection. What would be the position of existing homes and institutions if we had prior inspection before they were allowed to register? Under the amendment, if we did not have that prior inspection, they could not be registered. At the very least, people would be in a state of confusion. Indeed, so long as they carried on homes in which they maintained only incapacitated persons for private profit they would, I think, be breaking the law.
What we are trying to do here is to ascertain, first of all, the need for registration. That has not been established by any manner of means. What we propose to do in relation to these homes is to prescribe, by regulation, certain standards, standards which must be both modest and reasonable. We are saying to those who are in contact with these homes, through their relatives who are maintained in them, that, if they find these modest standards are not being observed, they can go to the local health authority and move that health authority to enter the home and inspect it. If, by chance, it is found that the standards are not being maintained or observed, then they can go to the courts and they can, if necessary, close down the home, or arrange that the home will be permitted to carry on only on condition that standards of adequate comfort and attention are maintained. That is the way we approach this Bill.
There is no analogy here between the situation under this Bill and the position that exists in relation to hotels and guesthouses registered under Bord Fáilte. The main reason why it was necessary to establish a register of hotels and guesthouses was because people coming to this country on holidays were being rooked by establishments which were not hotels or guesthouses and which did not provide the ordinary standards of comfort. When these visitors found themselves in conditions they were not prepared to tolerate they either had to go to a more expensive place or disorganise their whole holiday. The system of hotel registration was devised in order to encourage the tourist trade. That situation does not exist in relation to these homes because those who are maintained are those who have spent all their lives here, whose relatives live here and are in immediate contact with them.
All I am trying to do in this Bill is, first of all to get power to prescribe standards which will be modest— because they must be modest, having regard to the varied economic circumstances of the people for whom they cater—but will be adequate and will ensure that conditions are not such as to outrage any ordinary humane person. We are prescribing these standards and we are saying to those who are in contact with the homes and who are familiar with the conditions there by reason of the fact that they have either an incapacitated relative or an incapacitated friend in one of these homes : "If you find these standards are not being observed, then you can go to the local authority and move the local authority to have these premises inspected, to hear any complaints which may be made to them by an inmate or by a member of the staff." If the local authority, having inspected the home, find the conditions there to be unsatisfactory, they can then go to the court who can compel the owner or the manager of the home in question to rectify the deficiency or, if he is not prepared to rectify the deficiency, then to close down the home.
That is a moderate way of approaching a problem about which we really know nothing. It is a better way than that which has been suggested in the amendment. In Great Britain, there has been registration of these homes since about 1935—I do not remember the exact date but certainly a date before the war—and they have four Acts of Parliament dealing with this question of registration and, despite this, there is the same sort of complaint as we sometimes have here that elderly or infirm people are being exploited by people who carry on these homes for private profit.
My attitude, therefore, is that registration in itself is not a cure. It will achieve nothing and will tend, on the whole—for reasons which I do not think it is necessary for me to delay the House by dwelling upon—to make these homes more expensive. It will also tend to build up around them a vested interest and in the end will entirely deprive some people of modest means of the facilities which they now enjoy. Therefore, I think the scheme in the Bill is the best way of dealing with this problem.
I do not want to provoke further unnecessary argument about this. Deputy O'Higgins and the Minister appear to have their minds set against registration. I say this, admitting that I have not participated in this discussion. The amendment seeks registration of the type of premises that are described in the Bill but, to my mind, section 3 is tantamount to registration. I do not know whether I am entirely correct in that but surely registration is merely notifying the health authority or the Department of Health, for example, that a home is about to be established and, having notified that, the home must immediately comply with the regulations the Minister prescribes under section 2. I do not know whether there is any conflict between this and——
The onus is put upon the person carrying on the home to notify the local authority. If he does not, he is under penalty. It can be said a home cannot be established or an existing home cannot carry on unless it is registered. It is a way of approaching this problem which will cause the least possible dislocation.
But the mere notification of the existence of a nursing home or of the establishment of a nursing home does not allow anybody to contravene these conditions which the Bill lays down must be complied with.
I presume each local authority will keep a list of people who are running or intend to run nursing homes. Would the Minister consider the value of having some form of certification and of having a register kept that would be made available to anybody anxious to provide a home for a relative and who wished to ensure that the home in which the aged relative is being put is in fact a registered home or a notified home?
I cannot see that there would be very much difficulty in a person approaching a local authority and asking them for a list of such homes.
Would the authority have power to do that?
We can make that provision quite readily by regulation.
I wonder can the Minister do it by regulation?
It is merely that the local authority may, on request, supply a list of the homes which have been notified.
That is what I am querying. Under the section as it stands, does the Minister think it can be done?
Is there not a saving section there—"without prejudice"?
The generality. I suppose the Minister can consider whether it is right or not.
Perhaps the Deputy has a point there.
Would the Minister have a look at it?
Yes, but I think I have power to require the local authority, on request, to supply a list.
On that undertaking I should like to withdraw the amendment.
Amendment No. 4 is cognate with No. 2 which has already been discussed.
I move amendment No. 5:
In subsection (2), after paragraph (d), to insert a new paragraph as follows:
"() provide that the administration of sedatives and injections is carried out only by qualified persons and that a register of stocks of drugs be kept and be available for inspection by a medical practitioner or by a qualified person appointed by the health authorities."
The need for this amendment should be fairly clear. It provides that if drugs, sleeping tablets or injections of any sort are being administered in a home, the person administering them should have sufficient medical skill to ensure that no injury will be caused to the person to whom such drugs, sleeping tablets or injections are being given. Secondly, it provides that the person will be a responsible person who will realise the danger of these drugs and will keep a general register of the quantity of drugs administered so that if inquiry were made, he would be in a position to account for the medicines entrusted to his charge and indicate the method by which they were administered. In other words, it should be some person, either matron or visiting responsible person who would carry out the work that is normally performed by a nurse. We believe some such provision should be made by the Minister and incorporated in the Bill.
This amendment is not necessary. The Minister has power under paragraph (a) of subsection (2) to make regulations to this effect, if he is satisfied that it is essential that such regulations be made. It must be remembered that sedatives are given by people who could not be described as qualified. There are any number of people who are entitled to get certain drugs under medical prescription and to administer them themselves. So that, if it were made compulsory upon the Minister to make regulations providing that sedative injection be carried out only by qualified persons, a person could not take a barbiturate at night if he wanted to have a sleep unless he called in a properly qualified person to administer it to him.
What about a night cap?
I suppose he would have to go to the local for that or bring the barman up. I would appeal to Deputy Kyne and those who think like him to believe, first of all, that whatever Minister is administering this Bill —and because, of course, I am not blessed with immortality, there will be, probably, somebody to succeed me in the ordinary course of political evolution, if for no other reason—it can be left to him to make the regulation if he feels it necessary. Let us remember that this is what Deputy O'Higgins described it as, an exploratory measure, and let us see how the thing works. I think it will work all right and that most of the abuses which are alleged to exist, but which have not been proven to exist, will be readily dealt with, if they do in fact exist, by the Minister under this Bill.
The Minister, of course, is speaking as if the terms of the Bill were to apply to every home and house in the country because that is the only way in which the people who wanted to take drugs themselves could be affected by this amendment. The Irish Press of last Saturday, as a matter of fact, suggested that something like that might be necessary. It contained the report of an inquest which took place on an old lady who died in Kildare. Apparently, she and her sister had been taking drugs.
That is a subversive newspaper.
Apparently they were taking drugs, not just sleeping drugs. One of them fell out of bed and she died in the room after 24 hours, according to the Irish Press, before being found. The Minister would need to be very careful about the occational relaxing drugs which he referred to before and about which he afterwards felt it was in a different context that he used the expression. I still say that the Minister, if he is serious about having nursing homes, must ensure that there are trained personnel. The temptation to use drugs to quieten the awkward old person which might exist if drugs are available and are not controlled, might be great on occasion. Even if it has not been proven so far, the Minister will probably find that if he takes the necessary steps, it can easily be proven after this Bill becomes law.
The Minister, again and again, has referred to the fact that we have produced no evidence. If the Bill goes through in the loose manner in which it is at present framed, it may be difficult even after the passage of the Bill to produce the necessary evidence. I suggest to the Minister that there is nothing wrong with saying that if somebody wants to run a nursing home, there should be trained personnel to help to run it and if the persons running the nursing home do not want that, let them advertise it as a private hotel and let it be treated as such.
I would ask the Minister to have another look at the amendment. If he does, he will see that there is a great deal of sense in it.
I think that the Deputy is forgetting the sort of problem with which we are dealing. We are dealing, not with nursing homes in the accepted sense in which a nursing home is a home where medical and nursing care and attention are provided for a person suffering from an acute condition. We are dealing, in fact, with what the Bill says, homes for incapacitated persons, the old, the infirm, and so on. In my Second Reading speech, I made it quite clear that the point I had in mind was that these homes would provide the ordinary sort of nursing care and attention which are provided for an elderly parent in a normal comfortable home. That is what we want. But, if this amendment were to be accepted, we should have to have in every one of these homes a qualified person. Now, what is a qualified person? A State registered nurse, day and night. What would that cost an inmate in one of these homes, or what would it cost a relative of an inmate in one of these homes, a relative who, perhaps, is finding it hard to provide for himself and his family as well as for this elderly person?
The one thing that we do not want to do at this stage is to overlook the fact that, as Deputy O'Higgins said, there are these establishments fulfilling a very necessary social need. We do not want to close down any of them if conditions in them are readily acceptable by the ordinary person who would like to see his own relatives properly cared for. We do not want to close down such establishments if they fulfil that standard. With experience, as we become more familiar with the problem and the local authorities have an opportunity where complaints are made of investigating these complaints, it may happen that something like this will be necessary but it has not been shown to be necessary yet.
We have heard on this Bill that it is feared that such-and-such conditions obtain in certain of these establishments but we have had no evidence and I suggest that, in a matter like this where it may result in a great deal of inconvenience and perhaps hardship to certain families, we should not proceed merely on the grounds that it is possible that the thing can happen. It should be fairly substantially proven that a thing has happened, that an evil has arisen, before we start to deal with it in this way.
What I am really saying to the House is this: a Minister, under this Bill, can make regulations of this sort if necessary. There is no use in writing it into the Schedule. He can make it under paragraph (a) of subsection (2), which reads:
prescribe requirements as to the care of incapacitated persons while being maintained in homes,
I am certain that if experience shows that a regulation of this sort is necessary it will be made. At this stage I would be very reluctant to make it. Therefore, the amendment, not being necessary to enable it to be made and the Minister responsible for the Bill being reluctant to make it, I do not think it is worth while trying to write it into the Bill.
I would agree with the Minister. I do not think it was the intention of the Labour Deputies who moved the amendment to insist that fully qualified nursing staff should be in these homes day and night. I appreciate the point that that would add to the charge so seriously that it would probably deprive persons of having such homes.
In view of what the Minister has said, that if a reason arises when the Bill is in operation for such a regulation, he has the power and that he will, in fact, exercise that power, I am prepared to withdraw the amendment.
I move amendment No. 6:
In subsections (2), paragraph (h), line 30, after "for" to insert:
"periodical inspections of all such homes by health authorities and their officers and also provide for"
It falls, I think, on the question of registration.
We discussed this on the question of registration.
