Dáil Éireann debate -
Wednesday, 7 Mar 1990

Vol. 396 No. 7

Health (Nursing Homes) Bill, 1989: Committee Stage (Resumed).

Debate resumed on amendment No. 1:

In page 2, subsection (1), between lines 20 and 21, to insert the following paragraph:

"(c) old age,".

Mr. Sherlock

I had begun to give the very good and valid reasons that the Minister should not object to accepting my amendment. We accept that the Bill is good and is absolutely necessary at this time. In section 1 the term "dependent person" means a person who requires assistance with the activities of daily living, such as dressing, eating, walking, washing and bathing by reason of physical informity or physical injury, defect or disease or mental infirmity. I am asking that "old age" be included.

As I had begun to say before the debate was adjourned, many people who go into old persons or retirement homes may not necessarily have any physical or mental infirmity but may decide that it is in their best interests to go into such a home. A person who is living alone may feel that the safety and security offered by a residential home is preferable to remaining alone in a flat or in an isolated farmhouse, especially if they have no family living with them. They may simply want to do so for comfort and convenience, but nevertheless they are vulnerable to exploitation and merit the same protection and high standards that the Bill seeks to set for persons who have a physical or mental infirmity.

When introducing the Bill the Minister gave us some statistics which I think should now help to convince him to accept my amendment. He said that the population projections reinforce the need to define the responsibilities of health boards and nursing homes. The census reveals that 382,000 people are over 65 years, of which 143,000 are over 75 years of age. The latest projections suggest that the number of elderly will increase slowly up to the year 2000 and rapidly after that, and by the year 2011 we will have a population of 414,000 elderly people. The need for accommodation for old people is going to arise in that time and that is a good reason that the Minister should have no problem accepting my amendment to include "old age" in section 1.

At the end of August 1988The Sunday Tribune carried a report of how an 81 year old woman lay dead or dying for three days in a self-contained flat in a residential home for elderly people run by an order of nuns in Dublin. At present that home would not be subject to the terms of the Bill. That is another example I give to convince the Minister of the importance of the amendment I proposed.

I strongly commend my amendment.

Mr. Yates

I support this amendment. We need not spend an undue amount of time on it, but it would add to the definition of dependent person if the conditions of frailty or delicateness were included and those who may not necessarily have a disease or who are not necessarily disabled, should receive the benefits and protection conferred by this Bill. I support the amendment because it would not, by definition, include all old people but just those who are elderly and require assistance with all the activities named in section 1. Unless there is some difficulty with the interpretation that old age does not mean people over 65 years, I can certainly envisage circumstances where there are some frail, delicate people who would be excluded under the present definition, although in every practical sense they would be dependent persons.

Minister for Health (Dr. O'Hanlon)

While I listened carefully to the points made, I do not think it necessary to amend section 1. The definition of a dependent person is not related to old age. A dependent person is somebody who needs care in the activities of daily living whatever their age. The definition of a dependent person already includes elderly people but it also covers younger people so that anyone who is dependent either temporarily or for a longer period will have access to a high standard of care in a nursing home. Looking at section 1 and the definition of dependent person I believe the cases mentioned by Deputy Sherlock would be included in the definition of dependent person.

Mr. Howlin

I also support the amendment. The Minister seems to accept the reasoning behind it but feels it is unnecessary because it appears the category is already covered within the present framework. The case has been made by my two colleagues that there might be a category of elderly people who are not in any way infirm and might be outside the scope of the Bill. It would copperfasten the issue if the amendment were accepted. We could reach agreement on this issue. It would be a good start to the debate if the Minister accepted the amendment to put the issue beyond doubt so that all the people who find themselves in need of shelter in a home would have the protections envisaged under this Bill. The Minister has already accepted the principle of the amendment.

Dr. O'Hanlon

I am prepared to look at the amendment before Report Stage but I am not prepared to accept it today. There is in classification a move away from terminology like "old age". I should like to look at it in that context. We will see if there are areas not covered which should be covered and come back on Report Stage if necessary.

Mr. Yates

I thank the Minister for that commitment. This is more than an academic exercise. Section 7 deals with subventions which are linked strictly to the definition of dependent person. There could be a person who, because of social circumstances, could not be minded but did not require hospital care because the person was not physically or mentally infirm. Such a person would require a place in a nursing home. Under Section 7 (1) some health board could decide to preclude such people from the subvention towards the cost of a nursing home. The point is validly made. We would welcome a definition dealing with that type of elderly person who does not suffer from a disablement or disease.

Mr. Rabbitte

I was about to make precisely the same point as Deputy Yates. The fact that the definition of dependent person can relate to somebody under 65 years of age does not cover the kind of case envisaged by Deputy Sherlock's amendment. I am not sure what the Minister means in saying he will have a look at it before Report Stage. The category of senior citizen which Deputy Yates envisaged is growing because of recent trends and developments in the health services. I rise only because I have been subjected to specific representations from precisely the kind of person who does not have the social support which is omitted in this Bill.

A number of senior citizens have been decanted from psychiatric hospitals in recent years. They were not psycho-geriatric patients in the first place. The tradition whereby geriatric patients or senior citizens ended up in psychiatric institutions is a major issue which need not detain us here. All of our psychiatric institutions housed quite a number of such people who have been institutionalised over the years and who, because of new trends in psychiatric medicine and new arrangements planned, have gradually lost their places in psychiatric hospitals. Many of those people fall into the category envisaged by Deputy Sherlock's amendment. My disposition would be to press this matter because if the Minister's commitment is not more than to glance over the matter before Report Stage it does not meet the situation envisaged.

Dr. O'Hanlon

It is not necessary for the Deputy to anticipate my commitment. My commitment is to look at it in the context of the very reasonable points made by Deputies Sherlock and Yates to see if it is necessary to have this provision inserted in the Bill. Regarding Deputy Rabbitte's point about patients who were in psychiatric hospitals, I do not think there would be any difficulty in the circumstances he outlined in having them included under dependency, in view of their previous history of mental infirmity. That is the case he appeared to be making.

Mr. Rabbitte

No.

Dr. O'Hanlon

We want to consider this in a reasonable light. I am not sure we should be encouraging people who are just elderly to go into nursing homes. There are other ways in which the health boards could support them. The Bill provides that a dependent person is a person who requires assistance with activities of daily living and goes on to give examples. It refers to physical infirmity, injury, defect or disease or mental infirmity. The health board can support people through boarding out in the case of people such as those mentioned by Deputy Sherlock who may be elderly and afraid to live on their own. Local authorities provide old persons' dwellings and sheltered housing. The health boards might also be able to provide greater support at home.

I intend to look very seriously at the matter to see if there is a need for this provision in the Bill. If there is need I will come back with an amendment on Report Stage.

Mr. Howlin

I was more encouraged by the Minister's original comments than by his second set of comments. He seemed at first to accept the principle that it is important to ensure that anybody who finds himself in a nursing home should be covered by the protections of this legislation, particularly the financial implications of section 7. Now the Minister is saying that it might be an encouragement to people to go in and he is saying that it might be proper to exclude some people from the provisions of the Act. There is a worrying new thrust in the second set of comments by the Minister.

We all accept that there are other options open to the health boards and local authorities such as the provision of special housing for old people, sheltered accommodation and boarding out. It is envisaged that if a person chooses to avail of a nursing home and it is suitable for that person's circumstances, he or she should be afforded the protections of the Act and should be able to avail of the financial assistance given to dependent persons. The Minister indicated in his latter comments that he might wish to exclude some people from these provisions because they might be encouraged to get into a nursing home. People should have that option, with the financial help and protections envisaged in this legislation. I am quite worried by the Minister's departure in his most recent comments. I hope he will clarify that he does not intend or wish to exclude anybody from the financial assistance envisaged in the Bill if a nursing home is a suitable place for a person and that person chooses to be there.

Mr. Sherlock

The Minister seems to want to completely disregard old age. We know of the growth of institutions and homes over the last few years, they are nursing homes in everything but name, and the people in them may not be suffering from illness or disability but they are there because of inability to look after themselves. We seek to have this sort of person included in the Bill. Deputy Yates is right in his interpretation because section 7 says that if, following the assessment of a dependent person and of his means and circumstances, the health board are of the opinion that the person is in need of maintenance in a nursing home and is unable to pay any or part of its costs, they may, if the person enters or is in a nursing home, pay to the home such amount as they consider appropriate.

Section 1 is also specific. It defines "dependent person" as one with a physical infirmity or a physical injury, defect or disease or mental infirmity. Old age need not fit into any of these categories and would be denied a subvention. The Minister agreed to look at this on Report Stage but I do not see why he cannot accept the amendment because it merely gives the category of old age recognition under a very important Bill.

Dr. O'Hanlon

I have an open mind on the amendment. My concern is that we are trying to get away from the terminology of old age, and that is accepted internationally. The definition in the Bill does not exclude older persons and certainly any person in a nursing home is entitled to its protection. I intend to look at the section to see if it is necessary to include "old age" in the Bill. However, it may not be necessary to include the phrase because the category of people to whom Deputy Sherlock refers may already be covered by the terminology in section 1 of the Bill. I am prepared to look at it and to come back to the House on Report Stage if necessary.

Mr. Rabbitte

I presume the Minister has had an opportunity to consider this matter. This Bill offers the opportunity to do something for senior citizens who find themselves in a category which does not necessarily come under the definition of "dependent person", in other words, senior citizens who are not, within the meaning of the old legislation, incapacitated in that sense but who are, nonetheless, dependent on the nursing home as their only home and who do not have the social support necessary to retain them at home.

When the Minister says we should not be encouraging people to go into nursing homes I feel that he really is saying that as there is already such a demand in this area with which we cannot cope, the last thing we want to do is to broaden the area of eligibility for subvention. There is a crisis at present and as long ago as 1985 an article appeared in association with an advertisement taken out by the Irish Private Nursing Home Owners' Association which referred to the fact that at that time there were 1,200 geriatric patients or — less clinically stated — old people in private nursing homes in the Eastern Health Board area alone. Having regard to the demographic trends and assuming that after its enactment this legislation will stay in place for some time, that demand will grow. That is more than the entire patient intake of St. James's Hospital and St. Vincent's Hospital put together; put it into context, that is the kind of demand that exists.

A good number of those people would not qualify under the definition in the Bill. The demand is growing and there is chronic pressure on the system. Representations on behalf of senior citizens who could not be described as incapacitated or dependent in the meaning of the Bill are in need of care because the social support is not there. They are not looked after in this Bill. We are talking about a situation in any event where most of the provision for senior citizens in this definition are catered for in the private sector. It is effectively the privatisation of an entire area of medical care and the least we can do is to make them eligible for the subvention envisaged under section 7.

We are dealing with a very important issue. I have no difficulty with the Minister coming up with a term other than the bald one proposed in Deputy Sherlock's amendment of "old age". If he can come up with a synonymous description which takes on board the thrust of what all the Deputies who spoke intend, that is fine. If there is an objection to the use of the term "old age" that is not a problem. However, I fear that the Minister will come back on Report Stage to say that he has examined the matter and he is quite satisfied with the definition of "dependent" because it takes into account all the categories.

I did not say the people who had been decanted from psychiatric institutions were all, by definition, suffering from mental infirmity. I do not particularly want to go into the social scandal of why some people ended up in psychiatric institutions in the past who were not psycho-geriatric patients. However some people left psychiatric institutions in recent years and it is generally and privately accepted by expert medical opinion that they were not mentally infirm. The Minister is talking as if we had a large network of community services in place, that all the services necessary to provide the backup to which he referred were already in place and that, therefore, we need not worry. He said there was a choice but that is not the case. I hope the Minister is embarking on a course to make a choice available as there has been little enough progress in the implementation of planning for the future and so on. I should like to hear the Minister elaborate on this because, as Deputy Howlin said, I am less happy about his second intervention.

Dr. O'Hanlon

Deputy Rabbitte's contribution was very interesting because he seems to be suggesting that many people will find their way into nursing homes just as a place to live, that there is nothing wrong with them and that they do not need any help with their daily living as they are able to look after themselves.

Mr. Rabbitte

I did not say that.

Mr. Yates

The Minister is going backwards.

Dr. O'Hanlon

If the people to whom Deputy Rabbitte referred are not in that category they are dependent on some support for their daily living. They cannot be excluded from that category. It is a very interesting point because we should be defining the kind of people who should be cared for in our nursing homes. Do we want a situation where people just go into a nursing home to live because of age and that they need no support whatever? I do not envisage that people do that because nursing homes are not the type of location in which you would expect to find somebody who is fully competent to look after themselves. If they are fully competent to look after themselves and need no support whatsoever you will not find many of them in nursing homes. This raises the issue of defining the kind of people who are cared for by nursing homes. As I have said, while I am satisfied at present that the term, dependent person, caters for the people Deputy Rabbitte has talked about, in the light of some of the comments that were made earlier, particularly by Deputy Sherlock, I would be very glad to look at the section and see if it is necessary to include "old age" or some similar wording to ensure that the section does what everyone in this House wants it to do, that is, that everybody who finds their way into a nursing home is covered by this Bill.

Mr. Rabbitte

We are lectured occasionally by the media and have been lectured by former Ministers on how important legislating is. I am trying to make a serious point and I am very sorry the Minister, for the third time, has chosen to distort what I am saying. To try to suggest that I am making an argument for the inclusion of anybody who walks in off the street, as the Minister put it, to go to live in a nursing home, is arrant nonsense. With respect, I never said that. I am referring to the actual definition which reads as follows: "`dependent person' means a person who requires assistance with the activities of daily living such as dressing, eating, walking, washing and bathing". If the matter stood at that it would cover the kind of category of people to which I am referring but of course it does not cover this category. It says: "by reason of" two things: first, physical infirmity or physical injury and, secondly, mental infirmity.

I know many of my constituents — and I am quite sure the same is the case in Cavan-Monaghan — who have difficulty with the activities of daily living, who require assistance in one or other or all of the activities referred to such as dressing, eating, walking, washing or bathing, but not because they have any physical or mental infirmity. These are merely people who are old or frail, whose families have rejected them or whose families do not want to know. When they are discharged early from St. James's Hospital or wherever the families simply do not want to take them in and they have to find some alternative shelter. If that means living in a nursing home so be it but nobody in their right mind, either on the street or in here, would suggest that people will be seeking to leave, say, good bungalows, and look for accommodation in expensive nursing homes in south Dublin, from which people are making enormous money because of the State's failure to provide this kind of service.

I would ask the Minister to address this point seriously. Since he first indicated to Deputy Sherlock that he was prepared to take the thrust of it on board he has back-wheeled. For a great number of old people, it is a great fear at the end of their lives that they are going to be left without care. These people may not have a physical or mental infirmity but find it difficult to get up every day and get on with the business of living. Either they have no family to look after them or their families do not want to know. That situation is not catered for in this Bill and all I am doing is making a serious plea to the Minister to take on board the thrust of what we are saying.

An Leas-Cheann Comhairle

I suggest to the House that we have applied ourselves to this amendment to the point where anything worthwhile has been said. I hope, on this occasion, to be helpful. There is an amendment down in the name of Deputy Sherlock and the Minister has indicated that if what Deputy Sherlock seeks to satisfy is not already provided for he will have a look at it and deal with it on Report Stage. Deputy Sherlock appreciates that if he puts his amendment now and if it is defeated he will not have the opportunity of putting it again on Report Stage. I make those comments and ask the House what it wishes me to do.

Mr. Sherlock

At the outset the Minister indicated that he wanted to look at this matter to see if it was necessary to include "old age". Would he clarify that further?

Dr. O'Hanlon

Listening to the last comment from Deputy Rabbitte I believe it is even more necessary to look at this matter before accepting the amendment. It is not alone the wording "old age" that we are concerned with but also the question of physical infirmity. It appears, if people are frail and have difficulty raising themselves up, going up the stairs or whatever, that that of itself is physical infirmity. Physical infirmity does not have to be a certifiable disease. People in the category which Deputy Rabbitte mentioned, people who might need help dressing, eating, walking or washing, are covered. The very fact that they need help may well be because of physical or mental infirmity. This needs to be looked at and certainly if the terminology "old age" or some similar terminology is necessary, as I have said, I have an open mind on it.

Mr. Sherlock

I would give as an example a person who applies for free telephone rental. The condition in that case is that a person must be living alone or with a person who is disabled or infirm. In the assessment that is made generally the cases are lost because the person is not deemed so infirm as to be able to do something. That is what will happen if there is not built into this legislation a provision to cater specifically for it and that is the reason I am pressing the amendment.

An Leas-Cheann Comhairle

Do I take it that Deputy Sherlock wishes me to put the question on the amendment?

Mrs. Fennell

I am sorry I was not here earlier to hear the debate but I would like to ask the Minister a question. In view of the fact that this definition is included in the Health (Homes for Incapacitated Persons) Act, 1964 — the interpretation section refers to old age, physical infirmity or physical injury and mental infirmity or mental handicap — why has the Minister not seen fit to bring it forward into this up-dated legislation?

Mr. Lawlor

Based on what the Minister has said, there is a willingness to introduce some flexibility. The point has been made by Deputies Sherlock and Rabbitte that in a bureaucratic interpretation by a health board in giving effect to this legislation, people who would be deserving of care and attention could be outside that category because of the tail-on to the wording at present. Perhaps the Minister would be prepared to consider that interpretation. At present there are many old folk we would like to see taken into care but because of lack of space there is a problem. I know the Minister is conscious of this and is endeavouring to address it. Perhaps he would find somewhere between home care and institutional care. If the Minister is prepared to introduce some flexibility on Report Stage, I would ask Deputy Sherlock not to press the amendment at this stage. We could then get an agreeable formula on Report Stage which would satisfy the concerns we all have on this matter.

An Leas-Cheann Comhairle

It was in regard to the restrictions on the Chair that I made a comment to Deputy Sherlock earlier.

Mr. Sherlock

I should like to advise the Chair that in view of what the Minister, and others, have said I am willing to withdraw my amendment to give the Minister an opportunity of considering the matter.

Amendment, by leave, withdrawn.

An Leas-Cheann Comhairle

I have given an intimation of the litany that follows but I should like to repeat it so that there will be no misunderstanding as we move along. We now move to amendment No. 2 in the name of the Minister. Amendments Nos. 2, 5, 20, 26, 28, 30, 55, 59, 60, 61, 63 and 83 and the proposal to delete section 8 form a composite proposal. Amendments Nos. 21 to 25, inclusive and No. 27 are alternatives to amendment No. 20 and amendment No. 26 respectively. Amendments Nos. 53 and No. 54 are alternatives to the proposal to delete section 8. Amendments Nos. 2, 5, 20 to 28, inclusive, 30, 53, 54, 55, 59, 60, 61, 63, 83 and the proposal to delete section 8 will be taken together for the purpose of discussion. I should like to remind the House that they will all be discussed in an omnibus fashion but that in respect of any one amendment the proposer may ask that a question be put. Is that agreed? Agreed.

Dr. O'Hanlon

I move amendment No. 2:

In page 2, subsection (1), lines 22 to 24, to delete the definition of "licence".

This group of amendments is a response to the wishes of Members as expressed during Second Stage. I wish to set out the composite proposal on the main amendment I am proposing to the Bill which is the registration rather than the licensing of nursing homes. The main changes are to section 4 of the Bill, amendment 26, and there are several consequential changes as a result. In all I will be dealing with 12 amendments together.

The amendment to section 4 replaces the system of licensing nursing homes with a system of registration. Several Deputies indicated during Second Stage that registration would be more appropriate for nursing homes than licensing. This point was also made by the Irish Private Nursing Homes Association.

The procedure for registration will be similar to that for licensing. Each health board will maintain a register of nursing homes. Subsection (1) replaces section 8 in the original Bill which provided for the keeping of a register. A person proposing to carry on a nursing home must apply to the health board to be registered. Registration will be valid for two years. Before granting registration, the health board must satisfy themselves that the registered proprietor and person in charge are fit persons to carry on a nursing home and that the home meets the standards laid down in regulations under this Bill. A health board will be able to revoke the registration or to attach conditions, subsection 8. The board will issue a certificate of registration and any conditions must be stated on the certificate. One addition is subsection (6) (b) (iv) which provides that where a condition of the registration has been contravened in the previous year a health board could cite this as a reason for refusing registration. The purpose of this new subsection is to provide an incentive for nursing home owners to comply with and fulfil conditions of a registration within a reasonable period. Applications for the renewal of registration must be made two months before its expiry and if at the end of that time a board have not notified the person of their refusal to register the home, registration will be granted automatically for a further two years.

An issue raised by a number of Deputies, and a matter which greatly concerned the Irish Private Nursing Homes Association, was the transfer of homes and the problems which could be caused if prospective owners could not be sure before purchase that health boards would accept them as registered proprietors. Section 4 (4) specifically deals with these concerns. This subsection provides for a person who proposes to take over as the registered proprietor of a nursing home which is already registered to apply in advance for a declaration from the health board. The declaration will state that the health board consider that the person is a suitable person to carry on a nursing home.

On the actual transfer the registration will lapse and the new registered proprietor will have to apply for registration but there should be no difficulty with this application as the board will have agreed in advance that they have no objection to that person becoming a registered proprietor. A declaration may only be refused if a person has been convicted of an offence under the Bill, the 1964 Act or any other offence so as to render the person unfit to carry on a nursing home or if the applicant has refused to supply information or supplied misleading information. The grounds for refusal are restrictive. The new person cannot be registered in advance as there can only be one registered proprietor of a nursing home at a time.

A fee will be payable in respect of the declaration. The purpose of the fee is to discourage anyone who is not really intending to become the registered proprietor from applying for advance clearance. The amount of the declaration fee will be prescribed under section 9 and I intend that any subsequent registration fee be reduced by the amount of the declaration fee.

Subsection 14 obliges a health board in notifying a person of a decision not to grant a declaration to inform him or her of the right to make representations to the board within 21 days or to appeal to the District Court within the same period. The same applies to decisions concerning registration.

The Bill also provides that on transfer the registration lapses and the person who proposes to become the registered proprietor must apply for registration within two weeks. These provisions are intended to cover the situation where a registered proprietor dies and someone else assumes responsibility for the home.

An issue which concerned Deputies, and the Irish Private Nursing Homes Association, was the health boards' power to refuse registration on the basis of previous offences committed by the person applying to be the registered proprietor.

In the original Bill, section 4 (3) (a) (ii), allowed a health board to refuse or revoke a licence if the person had committed an offence "under this Act, the 1964 Act or an offence that, in the opinion of the board, would render a person unfit or unsuitable to carry on a nursing home". The section gave a health board a wide discretion in relation to offences. Taking on board the concerns expressed, the section, now subsection 6 (b) (ii), has been redrafted and the words, "in the opinion of the board", and, "unsuitable", deleted to clarify the need for a health board to act on an objective basis in determining whether a person is or is not unfit to run a nursing home.

The consequential changes arising from the system of registration are amendment 2, deleting the definition of a licence and amendment 5, defining what is meant by the register and the registered proprietor. The definition of register states the meaning of this word throughout the Bill and likewise in respect of registered proprietor. A register of all registered nursing homes will be established in each health board area. The name of the registered proprietor will be entered on the register. The registered proprietor would normally be the owner of the nursing home.

Amendment No. 20 revises section 3 of the Bill in line with the proposed system of registration under section 4. The section is not changed materially except to refer to the registered proprietor instead of the licence holder and subsection (3) has been altered. This subsection which prohibits the advertisement of unregistered nursing homes has been simplified to make its meaning and intention clear. This subsection prevents the owner of an unregistered home from trying to advertise it as a "nursing home". The title "nursing home" is reserved for homes registered under the legislation.

Amendment No. 28 to section 5 appeals which replaces the existing subsection (1) provides for appeal to the District Court under the system of registration in the same manner as was provided for with licences. The amendment also provides for appeals in respect of declarations. There is no material change to the purpose of the subsection. The registered proprietor may take an appeal against a decision of the health board to refuse a declaration, to revoke a declaration, to refuse to register the home, to remove the home from the register, to attach a condition to registration, to amend a condition of registration, or to revoke a condition of registration.

Amendment No. 30 is necessary as a consequence of the registration rather than the licensing of nursing homes. It is not materially different from the original draft of the Bill.

Amendment No. 55 provides for the payment of a fee to a health board for registration and for a declaration. Where a declaration fee is paid I intend that this fee will be taken into account in relation to the subsequent registration fee.

Amendments Nos. 59, 60, 61 and 63 provide for a registered proprietor in place of a licence holder.

Amendment 83 amends the Long Title of the Bill to take account of registration.

Mr. Yates

I wish to make two comments at the outset. I think it is rather unhelpful, to put it midly, to Opposition Deputies who are trying to scrutinise this legislation if within 24 to 36 hours of Committee Stage being taken we receive amendments in the name of the Minister which completely rewrite the Bill and substantially change sections 1, 3, 4 and 8 which are gone and substantial changes to sections 5, 6 and others. Not only that but we have to take all the amendments together. Do I take it that when we reach section 59, for example, we are precluded from discussing it, and at that point do we just vote on it? This makes matters very difficult indeed. I only received the wording of the amendments this morning. It is not fair. These amendments should have been circulated some time ago. The bulk of this Bill is being taken in one step.

To deal with the substance of what is at issue the Minister outlined a number of very detailed points in his presentation, only some of which I got the complete drift of because of their complexity.

The first question I should like to deal with is registration versus the licensing arrangements. I was one of those who argued that a licence was not entirely suitable for this type of nursing home. A nursing home was not like a gun or a dog that needed a licence, nor was it like a public health service: registration was more suitable but there was always registration in this Bill. Section 8 will now be very convoluted. It will be the first part of section 4 (1) and (2) (a) and (b).

The first question we have to deal with is registration versus licensing. There are two issues here — whether the building and the rooms are of an adequate size, whether the sanitary services are adequate, if there is a hoist in the bath, if there are proper facilities for fire emergencies, etc. All these points are on one side, and on the other side there is the proprietor, the fitness of that person to provide adequate nursing care, adequate medical care and adequate nursing of different types of residents in the home.

It is not clear from the Minister's new section 4 exactly what will be the difference because we do not seem to have a register of proprietors as well as a register of homes because we have only one certificate. What happens in the event of there being question marks about the proprietor but not as regards the suitability of the premises? It is not clear if this is dealt with. The Minister tried to deal with this issue in the context of a transfer when the person comes to sell the premises when a person dies or whatever. He has introduced a new term, the declaration form, a declaration fee, which I have not seen provided for in the wording of the Bill. On my first reading of the amendments circulated I did not see any mention of the word declaration or declaration procedures but I could be wrong. We have now introduced this declaration procedure whereby if somebody has in mind to transfer the ownership of the nursing home then they will go through the declaration process and hold on to the registration until a decision was made. But if a transfer is not at issue and the health board are not satisfied as to the fitness of the person in charge of a large nursing home as opposed to the suitability of the premises, does that mean there can be no registration in that instance? In other words, is there anything the proprietor can do to put it right?

The second issue that arises in the original Bill and in the second set of amendments is the distinction drawn between the proprietor and the person in charge. Section 6 refers to people in charge who are at fault. I would like to know exactly what is at issue here. Is it somebody in charge on the night shift, or somebody appointed manager to be put in charge at all times? We must try to keep these concepts as simple as possible. Surely the registered proprietor will be the person who will be responsible at all times, and we should delete reference to the person in charge and instead pursue just the proprietor.

In relation to amendment No. 26 the Minister referred to section 4 (6) (b) and said that reference to "it is of opinion that" had been deleted. Section 4 (3) (ii) of the Bill as drafted states:

The person or a person who will be or is the manager or in charge of the nursing home has been convicted of an offence under this Act....

The Minister proposed changes there. I had proposed that it would be a "serious offence" instead of "an offence". I do not see the change he has referred to. My amendments Nos. 5 and 6 to amendment No. 26 deal with those points. I would like the Minister to clarify those points.

We need to reflect very carefully on the different aspects of this because it seems that the Minister, albeit in a genuine attempt to meet the wishes of the Private Nursing Homes' Association and Deputies, by deleting the reference to the licence, has made it more muddled, more confused and more difficult. We need clarification on the register of nursing homes and the registered proprietor. Amendment No. 5 states that a register means "a register of nursing homes established under section 4 and, in relation to a particular health board, means the register so established by that board and cognate words shall be construed accordingly". Perhaps the Minister will tell me what the term "cognate words shall be construed accordingly" means.

This is my first intervention and I want to emphasise a number of points. I cannot proceed until I have some clarification of these points. I have some reservations about proceeding on this basis. I understand that this Bill is not likely to be taken next week so this will give us time to digest this aspect of it. We are being asked to swallow the total debate on the major sections of this Bill, that is, sections 1, 3, 4 and 8, which propose either deletions or mass substitutions all in one go. We are being asked to do this in the most unclear of circumstances. I would like there to be a requirement for a register but no licence and separate certifictes for the proprietor and the nursing home.

I am all for the declaration procedure, but in circumstances where there are irregularities or problems within nursing homes which have 20 or 30 elderly patients, these patients should not be turfed out overnight if a director of community care or some other person is concerned about them. Instead the opportunity should be made available to the proprietor to either put proper management in place or try to rectify what is wrong. If the proprietor is perfectly in order, but the premises are unsuitable the opportunity should be given them to close the home. It should not be said that a proprietor is not a fit person to run another home somewhere else in the same community. These are the questions of detail we get down to when we look at individual cases.

The Minister also said — this sounded quite extraordinary and perhaps he will clarify it for me — that if the declaration or registration is refused by the health board they are allowed to make representations within 21 days. What is meant by the making of representations? There is either an appeals procedure or there is not and it is either carried out by the health board or somebody else. I have put down amendments to this section because of my experience of eight different health boards who acted in eight different ways in the operation of many existing laws. I would much prefer the Department of Health to oversee the supervision aspects to ensure uniformity across the country.

I will not delay the House any further other than to say I am not satisfied at this stage. I want to hear the Minister's response to these individual points before I accept any of the changes proposed.

Dr. O'Hanlon

I appreciate the difficulty raised by Deputy Yates. By responding to requests in the House on Second Stage to change the system from a licensing to a registration system this has many consequential effects on the Bill and I appreciate the difficulties these pose in debating the Bill. I will be happy to take this on board and try to clarify all the points raised.

Section 8 will no longer be necessary when there is a system of registration but effectively this section only required that a register of nursing homes would be kept by health boards. It did not deal with how one would get on to the register. Section 4 deals with this issue. The amendment I have proposed effectively replaces section 4 as it was but substitutes registration for licensing and incorporates section 8 for the reasons I have mentioned.

Section 4 (4) (b) of my amendment refers to an application to the health board for registration made by a person to whom a declaration under paragraph (a) had been given by the board. Section 4 (2) (a) of my amendment deals with the register of the nursing home and requires that the name of the registered proprietor be entered on the register. In addition, the register will include the address of the premises and the date on which the registration was granted. My amendment specifies these items of information, whereas the Bill, as drafted, left them to be prescribed. These provisions, which formerly would have been by way of regulation are now written into the Bill.

The person in charge of the nursing home will also have responsibility for the standards of the home. I believe it is appropriate that the person in charge of a nursing home should have responsibility for the standards in the home. As I have said the new section 4 does not differ substantially from the original draft in the Bill.

Mr. Yates

Will the person in charge be the same person as the proprietor?

Dr. O'Hanlon

No, not necessarily but obviously both of them would have a responsibility for maintaining the standards.

With regard to the term "cognate words shall be construed accordingly" this appears in legislation and is a drafting change to promote clarification of the meaning of the section.

Mr. Yates

It is to confuse Deputies.

Dr. O'Hanlon

My amendment also proposes that "A person who has been notified of a proposal under paragraph (a) may, within 21 days of the receipt of the notification, make representations in writing to the health board concerned and the health board shall, before deciding the matter, take into consideration any representations duly made to it under this paragraph in relation to the proposal, and notify the person in writing of its decision and of the reasons for it". I am not sure what point the Deputy was making about the word "representation".

Mr. Yates

I want to deal with these issues one by one. I will deal first with the person in charge and the proprietor. The Minister did not deal with my central point about the difference between the register of the premises and the register of the proprietor. If there is a problem about one of them will they lose registration or will there be separate registers for the proprietor and for the premises?

Dr. O'Hanlon

It is the same register but in order to qualify for the register naturally it will be necessary for the board to be satisfied with the premises.

Mr. Yates

Under section 8 a register of nursing homes has to be maintained and I understood that the licence referred to the applicant. In his Second Stage speech the Minister said that the health board will consider the person applying for the licence and the proposed premises to ensure they are all in order. He also said that they would require certain information in regard to the suitability of the applicant and the person in charge of the home. There seems to be a quite clear understanding that the person was one aspect of this and the building was the other. It seems now that we have submerged the whole thing into one registration process. Let us say there was a problem with the fire escape. Is that the basis on which the whole thing would be closed down or is that rectifiable? If a person had one home that was found to be unsatisfactory, is that person no longer suitable, as a proprietor, to run any other home? It would be preferable to have a distinction drawn between the two, albeit on two registers, as opposed to a licensing procedure.

The second point is in relation to the person who is to be in charge. How many people can be specified as being in charge? If that person gets sick would there be a panel of people in charge? Say they went on holidays, would there be another person in charge or would someone who was doing night shift be the person in charge? Who is to be deemed to be in charge? The Minister said the proprietor was separate as the person in charge. I would like to know how many people can be on the register. Is there a maximum number? Do they have to notify the board of who is in charge? I ask this because all of this could be the circumstances whereby all these matters are adjudicated on in the local district court. If the law is not absolutely watertight in this area one could easily have a situation where the health board would find themselves in grave difficulties if there was a court challenge to this legislation. It could be claimed that there was a panel of managers dealing with a situation on a particular night, and if something happened and a patient died and the family complained to the Minister and the health board demanded that the registration be taken away from that nursing home, the defence of the proprietor could be that the person in charge on that night was unsuitable and that it would not happen again. It is always individual cases that highlight the flaws in the law. I want clarification in relation to these points about the person in charge. In what circumstances would it vary from the proprietor? What would be the relationship between the proprietor and the person in charge? Is there any limit on the numbers of persons? Will the person in charge have to have medical qualifications?

Dr. O'Hanlon

First, to be included in the register, the proprietor must be approved by the health board, the person in charge must be approved by the health board, and the premises must be approved by the health board. The person in charge would normally be the matron; it certainly would be a nurse. Obviously the matron could delegate who would be in charge when she is not there. Normally it will be the matron and that will not necessarily be the same person as the proprietor.

Mr. Byrne

I found the last contribution by the Minister of tremendous interest. The Minister says that the person in charge would be assumed to be the matron but responsibility could devolve down through various grades of workers in the home. Could the Minister clarify how far down the hierarchial line responsibility can be passed? I am just very concerned that at some stage a nursing home could be in the charge of somebody both medically and administratively unskilled. I would like further clarification on that question of who is responsible and what degree of qualification such persons must have. Surely we cannot have a situation in a nursing home where a totally unskilled person with no training or with perhaps limited training in nursing could be left in charge and, in the event of some terrible event happening, we would exonerate the owner, proprietor or administrator of the home.

Mr. Yates

I certainly would concur with Deputy Byrne's remarks. Amendment No. 26.4. (2) (a) which deals with this states: "There shall be entered in a register in respect of each nursing home registered therein the name of the person by whom it is carried on, the name of the person who is in charge of it..." There will be two names on this register. Do I take it then that at all times only those two people can be in charge? What is the difference between the person who is carrying it on and the person who is in charge? Then Deputy Byrne's questions arise. What must be the qualifications of the person in charge?

Dr. O'Hanlon

The proprietor and the person in charge need not necessarily be one and the same person. Normally the matron would be in charge of the nursing home but we have drawn up draft regulations that will be sent out to a number of bodies and indeed I will arrange for the Deputies to have a copy of them. These will state categorically, and indeed it is in the existing regulations, that the person in charge of the nursing home at any given time shall be a nurse, so it will always be a nurse who will be in charge in a nursing home. That is the position at the moment under the 1985 regulations and that will continue to be the position.

Mr. T. Kitt

I welcome that last reference by the Minister. This debate has made those in charge of nursing homes sit up and look closely at how they run their homes. To be fair to the Minister, I have seen Bills come and go, but this is a perfect example of how we have had a very constructive debate with positive submissions that the Minister has carefully considered. He has made one major substantial change, deleting "licence" and substituting "registration" and I would like to compliment him on doing that. This has had a domino effect right throughout the Bill but I welcome the change. I appreciate Deputy Yates's position but this is very important legislation and I am anxious to see it in the Statute Book as quickly as possible.

I appreciate that there are technical difficulties but that last comment by the Minister that a nurse will always be in charge is an important feature. The most significant factor, the point made by the representatives of the nursing homes which I have always supported, is the deletion of the word "licence" and the substitution of the term "registration".

Mrs. Fennell

Let me comment on this section and the amendments. First can the Minister inform me if it would be acceptable for a GP to be in charge of a nursing home instead of a nurse, maybe a woman doctor whose career is, perhaps, to be totally in charge of a nursing home? To take up the point made by Deputy Byrne, many people might be concerned because at present nursing homes seem to be the biggest expanding commercial area.

There is a reason for that. Old people need nursing care and it can be a profitable business. The proprietor of this business could be quite far removed from the operation of the home and the home could be in the charge of a matron or nurse or somebody at that level. Is there any provision for noting first the qualifications of the person in charge? If, say, somebody who had committed some offence or who may not have behaved properly or who for some reason, had to leave a job in nursing and was then put in charge of a nursing home, I do not think the health board could move against that person; that would fall to the proprietor. We should have an image or an idea of the background of the person who is in charge on a day to day basis rather than the person who does the accounts, makes the tax returns and so on. The person in situ in the nursing home is possibly very important. Have we taken that into account?

Mr. Yates

I welcome the Minister's remarks about the regulations and look forward to seeing them because they clarify a number of points. We now have the certificate of registration and the register which is available for inspection and on it we have the name of the proprietor and the name of the person in charge and the amendment at section 4 (3) (b) provides that this will last for two years. There are amendments down to make it last for four years and for five years. We have a procedure for changing the proprietor if he wishes to sell or dies or transfers the business to another member of the family. If, as often happens, there is a high turnover of nursing staff and if the matron or the person in charge is replaced by another, what is the procedure for transfer to the person then in charge? In other words is there a similar declaration process for the person in charge or is it to be done on the basis that the person will justify the health board and the health board will approve that? If so where is the legal provision? If, say, a health board have given registration but during the period for which they were registered complaints about them are made to the health board and they check up and find a different person is now in charge, what action is open to the health board to seek a proper transfer to that other person in charge? A nurse may emigrate, or get married and give up working. This is very important because in five or ten years' time Ben Dunne could get into the nursing home business and have 50 homes all over the country with a different manager in charge of each one. At the moment we are dealing with family run, ostensibly one proprietor homes, but this might be big business in future. Therefore, the person in charge could be more important than the proprietor. The turnover rate of persons in charge will be much higher than that of proprietors. On the transfer of the person in charge under section 4 (2) (a) will the declaration procedure apply? Will there be another transfer procedure? Will the registration still hold and what will be the circumstances?

Dr. O'Hanlon

I say to Deputy Fennell, no, it will not be possible for a medical officer or doctor to be in charge of a nursing home. There is nothing to stop such a person being proprietor but he could not under the regulations be in charge of the nursing home because it is important that there be a high standard of nursing care in the home. For that reason it should be a nurse who is in charge.

Deputy Kitt is quite right and I appreciate his comments on the Bill. On Second Stage we took account of the wishes of the Members in the House generally about registration rather than licensing. Obviously it had consequences in terms of preparing the amendments because of the knock on effect. Indeed, I might reiterate what Deputy Kitt said, that everybody in the House wants to see the best possible legislation, so we are all addressing it with an open mind.

Deputy Yates raised a point about the provision for re-registering or letting the health board know that the matron or the person in charge had changed. There is nothing specifically in the Bill that would oblige the proprietor to notify the health board that a new matron had been appointed or that the matron had left. I have an open mind as to whether that is necessary in terms of the legislation because obviously there is an obligation on the proprietor to ensure that he maintains the standard and staffing levels required by the health board. The registration will be renewable every two years. That is also a safeguard. Health board personnel will have the right to inspect the premises from time to time and if a health board inspector is dissatisfied when he goes to the nursing home he can take steps to revoke the registration. As Deputy Yates said, the senior nurse or the nurse in charge, might change, might get married or go to a different job and it would be cumbersome to write such a provision into legislation.

Mr. Ferris

There is one item apart from that of the person in charge that I am concerned about in the new section 4 (3) (b) which provides that the period of registration shall be two years from the date of registration. We all welcome the fact that the concept of the licence has been removed and replaced by registration. I, too, appreciate the point Deputy Kitt made. We all made it on Second Stage, but now a specific period of two years has been put in place in relation to the registration. People involved in running nursing homes objected to the licence first of all on the basis that it implied some temporary arrangement vis-à-vis a nursing home. Now we have registration in place and the Minister has specified two years. Does he not consider two years for a nursing home a very short period? I have no objection to continuing inspections or visits from the health board and officers of the Department to ensure that standards are maintained, but to make it obligatory on owners of nursing homes to re-apply every two years is penal in that it lends an air of temporariness. I think patients in a nursing home would want to be reassured about the permanency of their tenure there. They tend to become institutionalised and they like some sense of security. The Minister himself has made this point in debates about the health services. We can create in the minds of people who are dependent on these services a confidence in the dependability of their position. Two years is quite a short period and I am surprised that the Minister has provided for it in the amendment in section 4 (3) (b).

Mr. Yates

I notice that Deputy Ferris's colleague, Deputy Howlin, has an amendment down to make that period four years and I have an amendment down to make it five years. The two year provision was in the original Bill.

I am concerned that the person in charge is the most important person. The proprietor could say: "I spent £50,000, I did up the building, it was in perfectly good order. It was not my fault that the person in charge happened to have a drink problem" or this or that. There should be an obligation to ensure — I put it no more strongly than this — that if there is a change and another person takes charge the health board should be so informed. That should at least be put into the regulations, and I ask the Minister to give a commitment on that.

I would like to ask the Minister more questions so that I can make some progress. Under amendment No. 20 in the Minister's name it is an offence to operate an unregistered nursing home. Would the Minister outline the penalties for an offence under the section? Secondly, will the Minister outline the declaration fee and the registration fee for nursing homes? Does he have in mind the sum of £50 or £2,000. What is the range of the figure he has in mind? Will the figure be based on trying to recoup the administrative costs? I have grave difficulty with amendment No. 26 in the Minister's name which amends section 4 of the Bill. Section 4 (6) (b) deals with removing a nursing home from the register. Under section 4 (6) (b) where the health board (i) "is of the opinion that—

(1) the premises to which the application or, as the case may be, the registration relates do not comply with the regulations, or

and so on. The words "is of the opinion that" are very faulty indeed. It is not uncommon for individual public servants, in this House or individuals in any walk of life to fail to hit it off with another person, to have personality clashes. It would be very easy for anyone to form opinions and therefore I think those words have the making of very bad law. I think we should substitute the words "where the health board has reasonable cause to believe". If the Minister is prepared to make that change, for example, it will be a substantial reassurance to all those operating nursing homes that his concern is for fair play together with the highest standards.

It must be remembered that health boards run geriatric care institutions in every community care area and they are very much in the business of minding the elderly and rightly so. With the establishment of geriatric assessment committees which assess referrals and decide whether the person will subsequently be sent out to a subvented bed, referred for rehabilitation or put into a long-stay bed, this can involve personality clashes in a small community. In my view the words "is of the opinion that" are faulty. I ask the Minister to reconsider that and to include the obligation that the proprietors of nursing homes have to notify the health board if there is a change in the person in charge.

Dr. O'Hanlon

I will deal with the points that were raised. The question of the levels of fines for offences is dealt with under section 12 of the Bill. Section 12 states:

(a) On summary conviction, to a fine not exceeding £1,000, or to imprisonment for a time not exceeding three months or to both,

(b) On conviction on indictment of an offence under section 3, to a fine not exceeding £50,000 or to imprisonment for a term not exceeding two years or to both.

Deputy Ferris asked about the period for registration and it is a question of striking a balance. While I know that both Deputy Ferris and Deputy Yates have an amendment to extend the time the working party who prepared the report The elderly—the years ahead recommended an annual licensing registration fee. I think that annual registration would be asking too much of the nursing homes and we have extended the period to two years. Deputy Yates asked about amendment No. 26 to section 4 (5) of the Bill, and the conditions under which a health board may remove a nursing home from the register. In amendment No. 26 section 4 (6) states a health board shall not—

(b) remove a nursing home from the register, unless —

(i) it is of opinion that—

(I) the premises to which the application... relates

(II) the carrying on of the home will not be or is not in compliance with the regulations,

The grounds for the removal of a nursing home from the register are very restrictive. The health board will have formed the opinion on the basis of information supplied to them by the nursing home and following inspection of the home by some of the health boards personnel. In other words the health board will be obliged to form their opinion on the basis of fact. Deputy Yates and Deputy Garland are anxious that the wording "reasonable cause to believe" would be substituted if they are of the opinion that the premises to which the application relates, or that the carrying on of a home will not be in compliance with the regulations. As I said the grounds for the removal of a nursing home from the register have to be based on facts. The terminology "reasonable cause to believe" is used where there is some uncertainty about what has happened; for example when a garda is called to the scene of an incident he or she has the power to arrest on the basis of a reasonable cause to believe. I am satisfied that the Bill as drafted places a greater onus on health boards to act reasonably than if the wording proposed in the amendment were used. If we were to accept the wording "reasonable cause to believe" it would increase the discretionary power of the health boards, and I feel that is not the intention of the amendment.

Mr. Garland

I will refer to what the Minister has just said about the amendment tabled by me and Deputy Yates. Deputy Yates had put the case very well for both of us and I am not at all pleased with the Minister's reply. I see no reason to change my position on the matter. I think the wording that we have proposed is infinitely superior to the Minister's wording and I would like the Minister to reconsider this matter on Report Stage.

It might also be appropriate for me at this stage to deal with amendment No. 12 in my name and that of Deputy Yates, which seeks to amend section 2 (1) (b) which deals with one of the exclusions from the scope of the Bill.

Acting Chairman (Mr. Jacob)

The Deputy will have an opportunity at a later stage to speak on that amendment, and he should stick to the matter in hand at present.

Mr. Garland

I did not totally follow what we were supposed to be discussing.

Mr. Ferris

I support Deputy Yates's remarks. The Minister will be aware as a GP that the words "in my opinion" are widely used throughout the country to justify the decision of any professional person which may not have any relevance to the case in point. Anybody can state an opinion. It does not have to be right or wrong; it only has to be an opinion. In the area of the social welfare code, medical referees give opinions which are indisputably incorrect, based on medical evidence available from consultants, hospitals and otherwise. Still under the social welfare code the doctor or medical referee can state "in my opinion". People respect an opinion but it is not a definitive statement of fact. The words suggested by Deputy Yates, "reasonable cause to believe", are completely specific. An opinion must be based on evidence. The Minister should address himself to this concept. The opinions of experts rarely agree. They all have freedom to state their opinion but it does not necessarily concur with the facts. The Minister should seriously consider the wording suggested by Deputies Yates and Garland.

Mr. Yates

The Minister did not reply to my question about the level of fees envisaged in respect of the declaration fee and the registration fee. It is a bizarre use of the English language to say that "reasonable grounds" is more open to question than an opinion. Whoever wrote the text for the Minister has simply got it wrong. If registration is refused or if a health board deregister a nursing home, the proprietor is entitled to appeal on certain grounds to the District Court if he feels aggrieved. All the health board official has to say is that he has an opinion. It does not matter if everyone disagrees with his opinion; as long as that is his opinion, the nursing home must remain deregistered. It cannot be argued that it would be easier for the health board official to go into court and prove that he had reasonable grounds to believe. We would have great difficulty in accepting amendment No. 26 if this is to be the position. I would ask the Minister to reconsider. The advice he has received is wrong.

Mr. Ferris

Just an opinion.

Mr. Yates

Exactly. I would dwell for a moment on the level of fees to be charged. The Minister said that if somebody had paid a declaration fee, that would be borne in mind when the subsequent registration of the transferred nursing home came up. This means that he has something in mind regarding the level of these fees and the interaction of the declaration fee and the registration fee. Perhaps he will let us know whether the declaration fee is to be set at the same level as the registration fee. Would he consider £50 as an acceptable level for the registration fee if it were index-linked?

Dr. O'Hanlon

The opinion I have about "in my opinion" is that it is a legal phrase in the context of the Bill. It is stronger legally than the amendment proposed. I accept that in common usage "reasonable cause to believe" sounds stronger but in fact it is not. The boards will be obliged to base their opinion on fact and they are the people who may have to go to court and defend their opinion and the grounds on which they formed their opinion in the first place. My advice is that the wording is stronger in the Bill as it stands. While I take Deputy Yates' point about looking at it before Report Stage, it is one of those phrases on which we could get conflicting legal opinions.

The level of fee has not been determined as yet. It will be discussed with the nursing home owners and in my view it should not be stated in the legislation. A change in the level of fee would then require an amendment to the legislation. If the health board have to undertake necessary investigations and inspections to ensure that nursing homes provide a high quality of care, it is reasonable that there should be a fee. I can assure the Deputy that the fees will not be unreasonable.

Mr. Yates

Will the two fees be the same?

Dr. O'Hanlon

No. The fee for the declaration will be less.

Mr. Ferris

The Minister said he would have discussions with the nursing homes about the level of fees. I hope agreement will be reached. We all have opinions about what the fee should be. We do not want the kind of position which developed in regard to the rod licence when we were told agreement had been reached and we then discovered it had not. We have had other legislation which involved registration fees which were laid down by regulation afterwards, subject to agreement. Probably none of us would be competent to decide on the appropriate fee. There is no doubt that a fee should attach. The payment of a fee by a qualified nursing home will give a status to that nursing home which is appropriate. I hope that agreement will be reached in discussions and that it will be communicated to us so that we can be supportive of the final agreement.

Dr. O'Hanlon

Certainly I will report to the Deputy on the agreement reached. It is not our intention to fall out over it. We will be looking for consensus with the nursing homes. It will not be an unreasonable fee. Deputy Yates mentioned £50 which would appear to me to be reasonable. Deputy Sherlock has an amendment to the effect that it should not be less than £250 but we will not be thinking along those lines.

Mr. Rabbitte

I have not intervened since amendment No. 1, which was a matter upon which I had received persistent representations but I want to underline what Deputy Yates said at the outset concerning the manner in which this spate of amendments reached us, in my case this morning. I hope the Minister accepts that for Deputies who are not spokespersons for their party on Health in particular to find themselves with an array of amendments which, in some cases, utterly transform the Bill and to be expected to make sense of the manner in which they are now collated makes it very difficult to make any sensible contribution to this Stage of the legislative process. I presume there is good sense in the manner in which the Bills Office has suggested we should proceed, but it is extremely difficult to relate one's amendments back to the original Bill because of the very short period which has been given to digest what the Minister has put forward. On a matter as important as this it is unreasonable to be put into this position.

I should like to refer to the debate that has just taken place concerning the suggestion made by Deputy Yates about "reasonable cause to believe" as against "the board being of the opinion that" and so on. The Minister said that the advice available to him is that the matter of construction, that is "that the board is of the opinion", is legally stronger than the words Deputy Yates advanced. That is probably correct. Does the Minister intend to carry through that view in terms of amendment No. 4 to amendment No. 26 in the name of Deputy Sherlock which says that a person who proposes to carry on a nursing home shall be deemed a suitable person, and so forth, unless that person has been convicted of an offence under this Bill or the 1964 Act or of any other offence that is such as to render the person unfit to carry on a nursing home?

Deputy Sherlock's amendment, coincidentally, is phrased in the manner which the Minister said is legally stronger. It says "or is, in the opinion of the board for any other reason, a person unfit to carry on a nursing home". What is the Minister's disposition on that aspect? This is a very important section. The Minister says that a person shall be considered suitable unless that person has been convicted under this Bill or under the 1964 Act. I do not know if the Minister knows how many convictions there are under the 1964 Act but, as far as I recall, there were very few indeed. In fact, I suggest to the Minister that there was only one which was initiated by my union a few years ago against a nursing home which has now conveniently changed its name. It gives very broad scope indeed to say that, in order to render yourself ineligible to carry on a nursing home, you either have to be convicted of an offence under this Bill, the 1964 Act or be guilty of some other offence which renders you unfit. In other words, you have to be convicted, otherwise you are a suitable person to run a nursing home. That seems to be very broad indeed "that unless you have a conviction you are regarded as suitable to carry on a business as a nursing home.

Obviously the health authority will have an opinion about an applicant who is unsuitable, but not by virtue of the fact that he or she would have a conviction in the narrow areas defined here. Would an owner of a brothel who makes an application be considered a suitable person to run a nursing home just because that person did not have a conviction under this Bill or the 1964 Act.

Mr. Yates

What is the Deputy's view?

Mr. Rabbitte

Under the Act such a person would be quite entitled, if he had a suitable premises in Deputy Garland's constituency, where most of them are——

Mrs. Fennell

It is my constituency too.

Mr. Rabbitte

I am talking about nursing homes not brothels.

Mr. Yates

Whose constituency are they in?

Mr. Rabbitte

Such a person would be a suitable applicant. What is the Minister's view on the amendment to the effect that a person should be ineligible if convicted under the 1964 Act or if also, in the opinion of the board, for any other reason a person is unfit to carry on a nursing home? This is a very important dimension and I do not want to go over the debate again as I heard Deputy Yates on the monitor about the importance of the manager vis-à-vis the proprietor.

Dr. O'Hanlon

Certainly the board will be responsible for registering the person who will be the proprietor and the person who will be in charge. If the board decide, not alone in relation to specified convictions but for other reasons, that the person is unsuitable, it will be a matter for them. Obviously, the board in coming to that decision, would have to be able to defend it in court if the person appealed.

I agree about the difficulties created by debating so many sections together but, as I have twice explained in the House, it is the result of accepting an amendment requested by the Opposition on Second Stage which has implications for many sections in the Bill. One of the difficulties we had in dealing with the amendments is that the amendments from the Opposition were only made available to us last night. However, I accept the point that it is difficult to debate so many sections at the same time.

Acting Chairman (Mr. Jacob)

We appear to be straying from the Bill. The House has agreed to take ministerial amendments Nos. 26, 28 and 30 together and perhaps we will deal with these specific issues. I just want to remind Deputies of what has been agreed by the House.

Mr. Rabbitte

Is the Minister saying that the health board may refuse an application from a person outside the terms of section 4 (3) (a), that a person could be, in the opinion of the board, unsuitable for a range of other reasons and, in that case, registration would not be forthcoming? Is that what the Minister said in his reply?

Dr. O'Hanlon

It is a question of balance and of how much discretion you give to the board in terms of how they deal with registration of individual people. While as of now the board can only refuse registration if the person has been convicted, my view is that they should have more discretion but I am open to suggestions from the House.

Mr. Rabbitte

I thought that is what it meant but the Minister, in his initial reply, seemed to suggest that the health boards did have authority to reject an applicant on grounds other than is specified here. However, I do not have a ready-made construction off the top of my head but it seems that, as the legislation stands, an applicant who has not been convicted who makes application and is refused, would have a right to challenge that refusal in the courts and would be successful. Some discretion must be given to the health board who would be expected to have a reasonable knowledge of this kind of thing so that if the kind of case I posed arises or any other case where, in the opinion of the board, there would be a manifest unsuitability, the board could refuse without being apprehensive of litigation by the would-be applicant.

Mr. Yates

I would like to turn to amendments Nos. 28 and 30 in the Minister's name and which deal with appeals. The only appeal process where there is a dispute between the health board and the nursing home proprietor is through the courts. This is a great weakness in the legislation and the more I reflect on it the more dissatisfied I am with it. I have approached this legislation with a number of amendments seeking that the health boards would not be given operational responsibility for the legislation but that instead the Department of Health would be given such responsibility. I have taken that approach because of my first-hand knowledge of individual cases of different standards being operated in different parts of the country by different personnel from different health boards, people who have completely different attitudes to what is desirable. I have even seen, within individual community care areas, different attitudes when certain directors of community care are replaced by others and I have seen desperate personality clashes. There is an obligation on us in this House to ensure uniformity of law. As we know, in so many of the health areas in relation to the Health Act, 1970, there is no uniformity.

I would ask the Minister therefore to compromise on this and consider a substantial amendment whereby the day to day workings of the legislation, the registration, the conditions and so on would be matters for the health boards but there would be an appeal to the Minister. There could be a small unit in the Department and the Minister could second one or two people from each health board to operate this system and appeals would be handled by the Department of Health. Section 5 and amendments Nos. 28 and 30 deal with this area.

I am not satisfied with the courts because, first, litigation is very costly. People who could get the best senior counsel might have the best case presented on their behalf. There is also the possibility that district courts could be something of a lottery in so far as a particular district justice may not like a particular health board and would invariably give judgments against the health board and vice versa. There may be other district justices who would not be expert on nursing homes, who would not be expected to know about medical and nursing matters and who would feel that it was their obligation to back the health board. Conversely the only way the Minister and his officials will know how the legislation is working and whether it is meeting the desired circumstances is for people in the Department to have first-hand knowledge of the type of standards that are being set across the country and the type of standards desired.

I would ask the Minister to reconsider amendments Nos. 28 and 30 and to consider rejecting the District Court. Of course people should have a right to appeal to the courts on points of law only but on substantial disputes of opinion about whether a home is up to standard surely the sensible thing is for the Minister to send an inspector to inspect the home. What would a district justice know about it? He is not going to go to look at the home and he will not be able to resolve the clashes that might arise. If everything is done on the basis that the next step is litigation, it is a breathing ground for allegations of different kinds and that will only lead to unpleasantness. Therefore we need a buffer in this legislation.

I would like to specifically ask if the Minister envisages that the Ombudsman would have a role in this regard. He can appeal individual matters of every health board. All concerned, the residents and proprietors of nursing homes and health board officials, would welcome the Department taking an active interest in this matter. As I have said, the net effect would be that it would not necessarily involve any extra cost because the Minister could second two or three people from different health boards to administer the appeals process. He could appoint a small ad hoc group of three people to make judgments and he could lay down the details by way of regulation. As outlined in section 5 and in amendments Nos. 28 and 30, the only recourse for disputes as regards registration, deregistration and so on is to the courts. That is entirely unsatisfactory and needs amending.

Mr. Ferris

I support the argument put forward by Deputy Yates. This type of section has been written into other legislation. Recently it was written into the legislation giving licences to restaurants to have drink facilities available after certain hours. We discussed the pros and cons of this type of section, particularly as it relates to a premises in the service of the public. If this is the only recourse that is available to applicants for registration to practice their constitutional rights — it is the final court of appeal and we cannot take it from them — it would be detrimental and would create a positive discrimination against the people going in to court. Once you appear in court and try to prove that your premises or yourself are suitable for a licence you have immediately lost the confidence of the public because irrespective of the decision of the court there is always a suspicion that because you had to go to court there must have been something intrinsically wrong with the application in the first place.

The Minister has specified that he will require the person in charge to be a competent nurse and we accept that. We are talking here about the home in particular, the actual bricks and mortar. The newly built homes which are specially built to suit will have no problem. The Minister has identified areas in the community where it will be satisfactory for small private houses to provide accommodation for two or three people and this is a welcome step but to do that the applicant will have to go through a whole process of investigation, first by the local authority in the jurisdiction in which the application is made and secondly the local authority will have to consult with the fire officer who advises the local authority and indeed the health board on matters of this kind. Unless the normal procedure of an appeal to An Bord Pleanála or otherwise is available, there is merit in the case made by Deputy Yates that before people go to court there must be another procedure which the Minister could monitor in the interests of the health boards and the applicants who are really providing a service that normally the State should provide anyway but cannot afford. There should be a procedure available to people who in discussions with officials of the Department would have the opportunity to put their case for registration without having to appear before a court. I do not think people will appeal to the courts and in that regard we would be discriminating against them. We must remember that there will be personality clashes in regard to this procedure. We would like everything to be black and white but that is not how it is in the real world. I should like to ask the Minister to take the views I have expressed into consideration.

Dr. O'Hanlon

While I appreciate the points made by Deputies Yates and Ferris I do not think it would be appropriate for the Department of Health to become directly involved. What is laid down in the Bill is reasonable. If an application is refused by a health board the applicant can approach the health board within 21 days and if he or she is refused on the second occasion an appeal may be lodged with the District Court. Having the District Court involved imposes a certain discipline on those who are preparing the register. It will ensure that they will not, without justification, refuse to register an applicant on the register of nursing homes.

I accept the point that has been made that it will be difficult to have uniformity throughout the country, particularly where a number of agencies are involved. We are introducing a code of practice and we will be involving the eight health boards and the nursing homes in the preparation of that code. When preparing that code we will take account of the points made in the debate and, perhaps, introduce a procedure whereby those who are refused on the second occasion by the health board can have their application heard by a third party. That is the best way to proceed. I do not think the Department should become involved in the day to day running of nursing homes, as suggested by the Deputies. We will be dealing with the question of uniformity in the code of practice which it is hoped to circulate to Members who have contributed before Report Stage.

Mr. Yates

This is a matter of some substance. The Minister told us that an aggrieved party can within 21 days of the first refusal return to the health board and ask to have the application considered. I do not envisage any health board giving a different verdict on the second appeal to the one handed down by another officer. I do not see how a health board would undermine their own offices. In that event we can disregard that suggestion.

In rural Ireland the stories that sell local newspapers are those that emanate from the District Court. Country people operate on the basis that there is no smoke without fire. If there are any allegations on appeal put through the District Court by an applicant seeking justice for his or her nursing home one can take it that the nursing home involved is finished and will not succeed in attracting any new patients. Such people might lose a licence on a technicality but the only way they have of appealing the health board's decision is through the courts. They must go to the expense of paying a solicitor and, on appeal to the Circuit Court, of paying counsel. Those people must contend with the lottery of the District Court justice system. That is not what we should be concerned about. Our aim should be to improve and perfect the standards for the care of the elderly in residential care and nursing homes.

I accept that what I am suggesting will cause the Department a lot of hassle and that they do not want the bother of following it up because they would have to establish certain structures, appoint officials to take charge and pay out money. However, if my suggestion is adopted we may have more fair play. All the advice given to the Minister is against the Department getting involved in this process but this is a matter on which politicians must exercise their judgment and sense of fair play. I accept that the ultimate arbiters in the interpretation of any law are the courts but it would not cost very much to adopt my suggestion to deal with disputes.

An aggrieved party should have the right to appeal to the Minister. I do not think there will be any need to recruit extra staff. I am suggesting that the Minister establish a panel of health board personnel to adjudicate on such appeals. For example, he should appoint one official from each health board. If an appeal is lodged with the South-Eastern Health Board the Department should appoint three officials from other health boards to hear that appeal. The Minister may find that that group would write to the proprietor pointing out the defects in the nursing home, for example, that the fire escape was not adequate, that there were not enough en suite rooms or that the standard of hygiene was not good enough. The proprietor would realise then how futile it would be to appeal the case to the District Court.

The procedure suggested by the Minister may involve health boards in costly litigation. The time of health board staff would be taken up dealing with court appeals. The Minister would achieve a lot more by having his Department more involved in the day to day running of nursing homes. We will be pressing this issue to a vote.

Health boards vary in their services to the mental handicapped, in regard to occupational and speech therapy, orthodontic treatment, dental surgery and other services. The attitude of the board depends on the drive of board members, CEOs or programme managers. Another example is the different attitude adopted by health boards in regard to child care but children are not different irrespective of where they live.

There is an established data base to show that health boards operate differently but there is no reason to believe that justices have a monopoly on wisdom. They probably do not have a clue about standards in nursing homes. They are not the best people to arbitrate on these matters. We need those who have day to day experience of nursing homes. If my suggestion was introduced on a trial basis for one year we may find that all the appeals would come from, for example, a particular part of Donegal. We may find that one director of community care, was having family problems — I have no reason to suspect the director in Donegal; I am using that county as an example — and that he was an aggravated person. We must couch the law in such a way that it will be fair.

I do not believe that amendments Nos. 28 and 30 are satisfactory. I should like to make an appeal to the Minister to go against the advice he is receiving on this issue and consider setting up a small inexpensive panel of experts to review appeals. I am not suggesting that we should preclude a person's legal rights to go to court but we should have a halfway house appeals system as we have in regard to social welfare benefits. One can appeal to the head office of a health board in regard to supplementary welfare payments and community welfare payments. It would be interesting to learn in how many appeals the health board went against the decision of a local community welfare officer. They do not do that. It rarely happens. An appeals system outside of that health board is needed. The Minister says that they can appeal within 21 days to the head office.

The first thing the programme manager would do is to get the report from the local district court clerk and the report from the health inspector who saw it and he will come to his own conclusions very quickly. He will not undermine his staff. Certainly he would make the position of the health board officials impossible if he was to constantly overturn the decisions of his own understudies. This is fundamental to this Bill, it is fundamental to fair play and if we are putting the onus on proprietors we must remember that we are talking about people who are investing in the region of £40,000, £50,000 and, perhaps, £100,000. If, after a couple of years someone decides that the rules have changed the nature of this will be that more nursing homes will be built, there will be more competition in this area and there will be jealousy, pettiness, small mindedness and personality clashes. Therefore what we are suggesting is a half way house — an appeals system that would be inexpensive, practicable and cost effective. That is worthy of consideration and I would ask the Minister to reconsider his position in this regard.

An Leas-Cheann Comhairle

It seems that we have exhausted the whole matter dealing with registration——

Mr. Yates

We are dealing with amendments Nos. 28 and 30 which is a separate matter.

An Leas-Cheann Comhairle

We are taking a number of amendments together for discussion purposes and I know it is essential that we tease them all out but we will avoid repetition.

Mr. Yates

You will appreciate that I will have no opportunity when we come to amendments Nos. 28 and 30 to raise these matters.

An Leas-Cheann Comhairle

No.

Dr. O'Hanlon

I will deal briefly with the matters raised. First, there will be a very small minority that the health boards will refuse to register because the grounds are very clearly laid down: they would have to have a conviction in court in accordance with the legislation. Indeed, it is interesting that Deputy Rabbitte wanted more discretion for the health boards in reply to who they would register and who they would not register. Deputy Yates referred on a number of occasions to the advice I was getting that the Department of Health should not be the appeals body. I would make the comment that perhaps they are taking on board too much of what Deputy Yates has been saying over the years. He is one Member of the House, who, on numerous occasions has stood up and said there should be a body between the Department of Health and the agencies and that the Department of Health should not——

Mr. Yates

For the delivery——

Dr. O'Hanlon

——involve themselves in the day to day practice that occasionally they have to get involved in. The board will not be rushing into making hasty and flimsy decisions. In fact, the record of prosecutions — to which Deputy Rabbitte referred — has been very few over the years under the 1964 Act and it is only as a last resort that the boards have gone to court. Most homes are run to a very high standard. I do not believe the boards would refuse to register somebody unless they had very good grounds. They would have to go to the District Court themselves and defend the grounds on which they had refused registration. I suggested the code of practice because I believe that will get over the difficulty to the extent that it will be drawn up by the eight health boards in association with officials of my Department and also in consultation with the nursing homes association. That will give the opportunity to ensure that there is uniformity throughout the eight health board areas and it will also give them the opportunity to agree a protocol on how the boards will deal with an appeal that would come in within 21 days of a refusal. I believe that will meet the needs of the very tiny minority who are likely to be refused registration because the conditions under which they can be refused are laid down very clearly in the Bill.

Mr. Ferris

The Minister has addressed some of our concern in this area. In respect of any legislation, there is a constitutional right to use the courts if a person is aggrieved to that extent. Because it is referred to in the Bill does not mean that everyone would want to use that procedure but it is a perfectly legitimate procedure. We did not want it to be the final or the only procedure available to the people involved in a disagreement with the health boards. If there was a code of practice I presume it would apply to the agencies or the officers in the health boards who would have the responsibility for making decisions on the applications, on the suitability of the applicants and on their homes to satisfy the Minister's requirements. In parallel with a code of practice for the officers carrying out the investigation I presume there will be a code of minimum standards which would have to be achieved before the stage of applying for registration is reached. Presumably there will be the procedure where one can go back to the health board or, if there is a fire problem, one can consult with the fire officer or, if it is a planning problem where, for instance, the building is too near to the national primary route, that can be discussed with the planning officer. If we take it that all those are equal and that the home and the person running it meet the minimum standards laid down by the Minister — we would all hope they would achieve maximum standards — and if the officers inspecting live within a code of practice, I hope this section will never have to be used. If it has to be used frequently then the whole object of this legislation will have been defeated because much good service is given by private nursing homes. We had better realise that, because without them I do not know what we would do. Admittedly, medical card holders have to pay additional sums on top of their meagre incomes to support their stay in these places but it is because of the lack of beds in public geriatric institutions that people are forced to go into private nursing homes. That is the reason I welcome the concept of this Bill, it subvents the patient and not the bed. I hope that the additional finances required by the health boards will be available to do that because otherwise the Bill will only be a pale shade of what the Minister wants.

Mr. Yates

I am anxious that we make some progress on this amendment. The only other additional point I wanted to raise is the registration for boarding out. If we are now deleting a licensing system but there is no provision for registration. There is a feeling among those in the Private Nursing Homes' Association that boarding out will be used in substitution of nursing homes. I think that will vary. I am in favour of boarding out as a principle. It keeps people in their own community and it is cost-effective. I would like to see provision in this legislation and in section 4, to tie in with section 11, that there would be some concept of a level playing field and, especially if the health board are to get more involved in sub-venting nursing home beds, there is a case for saying that we will put all the care of the elderly, in terms of non-institutional care, on the one playing pitch and that there will be a register for boarding out and a register for nursing homes. Health boards would be able to utilise both registers by transferring patients from geriatric assessment committees and getting financially involved.

I should like to summarise my position in regard to these amendments. I call on the Minister to make it obligatory to notify a health board where there is a transfer of the person in charge of a nursing home which is registered or seeking registration. In all cases the Department of Health should ensure that the person in charge is an aspect of the registration which should be closely scrutinised and monitored. In relation to deregistration I ask the Minister to change the words "in the opinion of" to "reasonable grounds". I also ask him to put an appeals system in place involving representatives of health boards, other that the health board in which the dispute is taking place. Machinery should be put in place to inspect cases rather than having to utilise the court structure.

I will deal with the other changes proposed when we are dealing with the other amendments. I accept the basis of amendment No. 2. The period of registration should be extended from two years to four or five years. I will deal with this matter in greater detail later. The general workings of this system should be on the basis of consultation with the proprietors of nursing homes rather than confrontation. I am advised that section 4 (12) of amendment No. 26 may be unconstitutional, and I will deal with this in greater detail later. I also have great difficulty with section 4 (11) of the amendment. However, I will deal with these matters when we are discussing amendments Nos. 1 to 16 to amendment No. 26. Perhaps the Minister will consider the points I have raised. If he fails to do so we will vote against amendment No. 26. I have outlined the substantial changes we would like to see at this time.

Mr. Rabbitte

I apologise for having had to leave the House briefly. I support Deputy Yates's first amendment that there ought to be a requirement to notify the health board concerned in the event of the transfer of the person in charge of a nursing home. That is a reasonable and desirable provision and I ask the Minister to consider it.

I must say I am less upset about the removal of a nursing home from the register. There is a question of whether the phrase used should be "in the opinion of the health board that X and Y conditions apply" or whether it should be "they have reasonable cause to believe that certain conditions apply". I take the Minister's advice that the phrase "in the opinion of the corporate body responsible" is probably stronger from a legal point of view. As I said, I am not too concerned about this. Before I left the Chamber I made the point that there have been very few convictions under the 1964 Act. In fact, I can recall only one. Therefore, the provision as it stands is necessary.

I want to refer to the last points made by Deputy Yates specifically as they relate to amendment No. 28 and the necessity for an appeals procedure. The view taken by Deputy Yates and Deputy Ferris give grounds to believe that they distrust the health boards. Deputy Yates spoke about subjective issues, such as conflict of personalities and the fact that a vindictive person could strike someone off the register or not permit someone to re-register for personal reasons. These are features of life but I am very dubious about whether a licensing authority or registration authority could function in that manner without redress being taken by nursing homes involved. The redress body suggested here is the District Court. I would greatly prefer redress to the District Court than to the Minister for Health. It would be entirely improper and unfair to impose on the Minister for Health this responsibility and expect him to be in a position to give an opinion or judgment on whether an institution or nursing home should be debarred from registration or re-registration. How is the Minister to know whether this should be done? The Minister for Health would presumably be informed by his servants who would try to establish this information through the health boards. In any event this would diminish the standing, reputation, reliability and professionalism of the health board.

The health boards are the bodies of competence and authority in this regard and they are bound to have local knowledge which would enable them to be in a position to make a decision on the matter. I believe the Minister would be open to all kinds of political lobbying. I know many owners of nursing homes who are not unfamiliar with the political world. Many eminent persons who have political connections own nursing homes. It would be entirely wrong to expose the Minister to any unfair lobbying when a health board have good cause not to re-register a nursing home or to register it in the first instance.

This is a very important point because the present inspection and enforcement procedures are hopelessly inadequate. That is the raison d'être for this Bill. Conditions in some nursing homes — I do not mean to paint with a broad brush — are disgraceful. I have had personal experience of this. In the one case I instanced where there was a conviction, an inspection was carried out the day before the nurses in that home instituted the proceedings which led to the conviction. This happened because the brunt of the inspection obligations have tended to fall on public health nurses who have an extremely onerous range of duties and functions. It is an area that has been inadequately provided for in the past. The Minister's amendments provides better for the situation envisaged.

An Leas-Cheann Comhairle

Let me remind the House that we have all become two and a half hours older since we started on this section. There is very little that has been omitted from our deliberations. I do not want to pre-empt what Deputy Howlin might say but I thought we had reached the point where we might get a decision on amendment No. 2.

Mr. Howlin

An infusion of fresh blood at this stage will help the debate along. I apologise for my absence from the debate for some time but I was engaged in another important committee of this House which was making a decision which will have implications for us all in due course.

An Leas-Cheann Comhairle

The Deputy might not know whether he is repeating points already made.

Mr. Howlin

I have consulted with my colleagues and at the risk of repeating, I think it is more important that we get the Bill right than that we worry about a few extra minutes. This Bill has implications for old people and for us all because it is the fate of us all to be old——

An Leas-Cheann Comhairle

With all deference to your party, you do not have to labour that.

Mr. Howlin

——and some of us are further away from it than others. It is in all our interests to pay particular attention to this Bill.

I am concerned about this section. At the risk of asking the Minister to repeat himself, perhaps he would clarify what in real terms he intends to do with the code of practice. In relation to the right of appeal, I support the views expressed by Deputy Rabbitte and would be very wary of putting the Minister in a position where he would be subject to lobbying. In the past we had Ministers in the same position and we had to change ground subsequently and be seen to put it in a judicial or quasi-judicial area. The truth is that is somebody actually has to appeal to a District Court he has already lost half the battle because the publicity that would ensue would ultimately not be very good for his business. It is important, therefore, that there would be clear guidelines put down, publicly known and applicable to all health boards before a refusal would be recorded. Perhaps the Minister would outline the standards of administration and codes of conduct that he would envisage putting in place so that appeals of any nature would not be necessary.

Dr. O'Hanlon

Deputy Howlin's colleague, Deputy Ferris, outlined in an excellent contribution how he would see the appeal develop. What we intend to do is to draw up a code of practice with the eight health boards and in consultation with the nursing home owners we will incorporate some of the issues that have been raised here, especially the one in relation to appeals, as well as ensuring that there is uniformity in the practice.

Certainly we are prepared to accept — and we will draw up an amendment — that it will be necessary to notify the health board when the person in charge changes, when the matron leaves her office or when somebody else replaces her as the official person in charge. On the question of changing the wording, my legal advice is that this is stronger wording. I have dealt with the points on the code of practice.

Amendment agreed to.

An Leas-Cheann Comhairle

Amendment No. 4 is related to amendment No. 3. Is it agreed that they be taken together? Agreed.

Mr. Yates

I move amendment No. 3: In page 2, subsection (1), between lines 25 and 26, to insert the following definition:

"‘officer of the Health Board' means designated medical practitioners;".

The position here is that section 6 (2) (i) sets out all the different things the health board have to do. Sections 6 (2) (i) reads:

provide for the inspection of premises in which nursing homes are being carried on or are proposed to be carried on or that are reasonably believed by a health board to be premises in which a nursing home is being carried on and otherwise for the enforcement and execution of the regulations by the appropriate health boards and their officers.

Here we have an inspection process that will obviously feature largely in the code of practice the Minister has just referred to. It is very important that we legislate for who is going to carry this out. In my view it should be carried out by two officers of the health board — an officer of the health board in one instance who would be a designated medical practitioner and he or she would be accompanied by an official of the health board who would be an administrative person. What I am trying to achieve here is a balanced approach.

Deputy Rabbitte said that his perspective on this is to ensure that the most rigorous inspections take place and that there is no one in this House who would seek to defend less than exemplary standards of care for the elderly. My priority and that of my party is that elderly people be allowed to live out their lives with dignity and independence and that this should be done in the most desirable setting, and if that means that the cost to the State will be an extra £20 or £30 a week to get better standards in nursing homes — and that is the cost of subvention — so be it.

I am trying to ensure that these standards will be arrived at by people of fair mind and balanced approach, people who have regard to the practicalities, and to the medical factors. I do not want a situation where someone can come in and write a report which would be the basis of all future decisions. Therefore I am seeking that this House would have an input into this code of practice and that would be two persons involved in such inspections, one, a health board doctor — most likely the director of community care, the chief medical officer or something like that — and second, a lay person who is not a doctor but who could be a health board inspector or someone else. It will be up to the Minister to decide in his code of practice who that would be in each health board. To facilitate that in the definitions we have to make provision for fair play for both the elderly and those running the nursing homes. We have referred a lot to opinions today, and a second opinion would be no harm in reaching a consensus on the report that will be furnished to those making the ultimate decisions.

Mr. Howlin

I support the notion of the second opinion. I have listened to the reasoning behind having a medical and non-medical person acting in concert. There is possibly some merit in that one would have an administrative background and the other would be qualified medically to make a judgment on the situation. For those reasons I support the amendments put forward by Deputy Yates.

Dr. O'Hanlon

While I support the spirit of what Deputy Yates has said in regard to two opinion — two heads are better than one at any time — I am not sure that writing it specifically into legislation would be beneficial in this case. Certainly in no other health legislation are officers of boards defined in this way. There is a wide variety of staff in health boards who would have involvement in different aspects of the inspection, both of the premises and of the standards, and I suppose the people who do that at the moment are the public health nurses. They do a lot of the work in regard to standards. There are also technical services officers. I do not know whether it should be necessary on all occasions that two people would go together to inspect the premises. After all, if the premises has been registered obviously it would be inspected by a number of people who will be satisfied about the standards of the nursing home, that the staffing arrangements are appropriate, that the physical structure of the building is sound, and that it has all the safety features one would expect in a nursing home. It would not be appropriate to write that into legislation at this time. In drawing up the code of practice we can write into it what we would like to see, but we may well find if we write in the amendments as proposed by Deputy Yates that instead of doing what he wants to do we may well leave it restricted, in that, for example, an official of the health board might exclude the board from sending in an outside consultant engineer to look at the premises. We may well do the reverse of what Deputy Yates intends. I will be happy to look at it in the code of practice to ensure that the very highest standards are maintained. In fairness to the health boards, I have to say that in regard to their responsibilities at present they ensure that the appropriate person from the appropriate discipline visits whatever institutions or premises need to be visited to maintain a high standard.

Mr. Yates

I have listened carefully to what has been said. I am getting a little experience, as is Deputy Howlin, with the Special Committee on the Child Care Bill which the Minister has delegated to his Minister of State. In nearly all amendments tabled the Minister is in full agreement with our objectives but always finds some reason to reject the specifics of them. It never ceases to amuse me.

This Bill throughout refers to officers of the health board, officials of the health board, representatives and personnel of the health board. Because this was hastily drafted or for whatever reasons, non-medical personnel could be deciding on medical matters, or less expert opinions could be involved in expert judgments. My advice is that this is a weakness in the Bill. I do not want to have a vote on this because it is, after all, just a definition and I do not wish to hold up the House on it, but I do not believe that this provision will stop the health board from getting another opinion such as that of a consultant engineer or whoever. If the Minister is prepared to give an assurance that in the code of practice and in the regulations, he will adopt the position that within each health board there will be a designated medical practitioner, most likely on the payroll of the health board, involved in the operation of this and that there will be one other officer who would be instrumental in any decision or report made, I will consider withdrawing this. I ask him also to give a commitment, between now and Report Stage to look at the definitions throughout this Bill to see if they need to be made more specific in relation to the designated functions given to health board personnel.

Dr. O'Hanlon

Of course, some of this is dealt with in the draft regulations. I will read out the appropriate section. It provides that the registered proprietor and any other member of the staff of the nursing home shall permit designated officers of health boards who are authorised in that behalf by the health board to enter and inspect the nursing home and shall afford the said officers such facilities and information as they require for that purpose.

Subject to the paragraph above, the registered proprietor shall permit designated officers of the health board who are authorised in that behalf by the health board to examine records kept by the nursing home and to permit, subject to Article 24d, the copying of any such records or of extracts therefrom by any officers. He shall permit designated officers of the health board who are authorised on behalf of the health board to conduct interviews, including interviews in private, with persons, including staff, in the home where he or she has reasonable cause to believe that a resident in the nursing home is not or has not been receiving proper care, maintenance, or medical or other treatment and to provide facilities for the conduct of interviews.

In regard to article 24d of the draft regulations I should point out that nothing in this article authorises any person other than a medical practitioner in the service of a health board, or the patient's general practitioner, to inspect any medical records relating to a patient in a nursing home, and in carrying out inspections a designated officer of the health board shall have regard to the religious beliefs or principles of the patients and the religious ethos of the home. That is in the regulations but we will take it on board in drawing up the code of practice to ensure that appropriate person or persons will go on the inspection.

Mr. Yates

Two people.

Dr. O'Hanlon

Yes, two people will go on the inspection. We have no difficulty with that but we want to ensure that by writing it into the legislation we do not exclude the very people we want to go on the inspection.

Mr. Howlin

May I ask a couple of questions? I understand from my colleague that the draft regulations will be circulated to the spokespersons. Obviously they will be of great assistance to us. Since we will be reporting progress at 7 p.m. let me suggest that that be done during Private Members' Time and that would give us an opportunity to look at the regulations. They are difficult to follow when they are simply read out.

An Leas-Cheann Comhairle

Apart from the official reporters.

Mr. Howlin

Apart from the official reporters indeed. I would like two points clarified. I understand the Minister has accepted that there will be an inspection by at least two people. There are two issues involved in the amendments. One is that there will be a minimum of two people inspecting and not only is there a wish to safeguard the patients but the Irish Private Nursing Homes' Association themselves would like at least two people. Deputy Yates made the point that one of them would have medical experience and qualification and the other not, so there would be a balanced view and there would not be certification on the basis of one aspect of expertise alone.

Dr. O'Hanlon

Certainly I will accommodate the Deputies, but we will make it two people at this stage and we might discuss who those two people should be. It might be a medical person and a nursing person or it might be more appropriate to send a nurse and an engineer. If we discuss it we will agree on it.

Amendment by leave withdrawn.

Amendment No. 4 not moved.

Dr. O'Hanlon

I move amendment No. 5:

In page 2, subsection (1), between lines 26 and 27, to insert the following definitions:

"‘register' means a register of nursing homes established under section 4 and, in relation to a particular health board, means the register so established by that board and cognate words shall be construed accordingly;

‘registered proprietor', in relation to a registered nursing home, means the person whose name is entered in the register concerned as the person carrying on the home."

Amendment agreed to.

An Leas-Cheann Comhairle

Amendment No. 6, amendment No. 1 to amendment No. 55 and amendment No. 57 are related. With the agreement of the House we will take those three together.

Mr. Yates

I move amendment No. 6:

In page 2, subsection (1), between lines 26 and 27, to insert the following definition:

"‘prescribed fee' means a fee set at such a rate as to merely meet the cost of processing applications, taking one year with another;".

We have discussed already the question of these and the Minister was not prepared to state what he thought would be the fee in question. He said he was ruling out Deputy Sherlock's amendment that the fee should be at least £250. I think what I am seeking here is not unreasonable. It is that the fee would be seen at best as cost recovery. It would be in line with no more than the cost of processing these applications for registration, declarations and so on, and taking one year with another that means the fees could be increased. We have seen health boards introducing mortuary charges. If you are unfortunate enough to have a relative in a coffin overnight in a mortuary, you can be charged £25 by one health board for that pleasure. We have seen people charged £10 for appealing their right to have a medical card and a £10 charge for looking for a job with a health board.

Mr. Howlin

It is £25 for being in mortuary.

Mr. Yates

That is what I said.

Mr. Howlin

It is cheaper to stay in bed.

Mr. Yates

Health boards have a track record of seeing an opportunity. Where the word "fee" appears it lights up in their eyes. CEOs see the potential of getting all sorts of revenue from it. Therefore, it is important in this House that we do not leave this matter entirely to the CEOs of the health boards because they have proved adept at resolving the budgetary straitjackets the Minister put them in by trying to raise revenue. I am seeking here in the definitions to say that a prescribed fee — which is referred to in the Bill a number of times and in the Minister's amendments — would mean a fee set at such a rate to merely meet the cost of processing the applications, taking one year with the other. The other point, and it is a very important point would mean that all health boards would apply the same fee. It would not surprise me if the North-Western Health Board and the Eastern Health Board decided on different fees. This is very common in relation to all aspects of health board services.

The Minister will be aware that there are different fees in different health boards for ambulance charges, that there are different considerations as to when a fee is payable and that there are different appeal processes in the health boards. It is important that the prescribed fee is reasonable; I suggest that it should range between £50 and £100 and that the increases in the fee will be related to the cost of processing the registration and that one fee would apply whether the nursing home is in Donegal, Kerry or any where else.

Mr. Howlin

I strongly share the views expressed by Deputy Yates on the notion that the fee should be left in the air and I would certainly oppose any notion that it should be left to the discretion of the health boards. Obviously the health boards see any mechanism for raising revenue as simply that. Is it the Minister's intention to set a national fee? If so that should be made known to the House. If not, will it be a matter for the health boards? Is it within the Minister's ambit to set the fee or would it be a discretionary devolved function of the health boards? If it is not the Minister's intention to set the fee, he should set clear guidelines. Deputy Yates's amendment, which seeks to fix the rate of fees at a cost-value, might have some merit but I think the Minister's views on the issue might help to clear our thoughts.

Mr. Rabbitte

I agree with the necessity to have a uniform fee within the eight board areas. The question of the level at which the prescribed fee should be fixed is not exactly analogous to the types of instances Deputy Yates gave. There are unfortunately many health boards charges which have to be borne by people who are less well off than nursing home proprietors. I suspect the relatives of the poor unfortunate who is left in the mortuary overnight are less capable of bearing the fee for the service than the proprietors of nursing homes. In my view, the fee should be fixed at such a level that it is capable of funding the operation of the Act. I am not so sure that on reconsideration Deputy Yates would differ from the view that the fee should be at least such that it will fund the operation of the Act. After all nurses, for example, have to fund the administration of their own professional body. The Minister will be aware of the recent legislation in this area. If a professional group such as nurses are required to fund their own professional organisations, it is reasonable to expect the owners of nursing homes to do similarly.

I would like to hear what the Minister has in mind, as this is not something that should be left hanging in the air. I think the Minister hinted earlier that the amendment from my colleague, Deputy Sherlock, which would seek to set a minimum level, was regarded as entirely too low.

Mr. Yates

——entirely too high.

Mr. Rabbitte

I would like to hear what the Minister has in mind.

Dr. O'Hanlon

I want to assure the House that the fee will be prescribed by the Minister and that the health boards will not have discretion to vary the fee. With regard to Deputy Sherlock's amendment to set the fee at £250, I consider this too high because at the end of the day it will be the consumer who will pay and the consumer will be the dependent person in the nursing home. We will be discussing the level of the fee with the health boards and the nursing homes. It is intended that the fee will cover the cost of processing applications for registration. What may be involved is a fee relative to the size of the nursing home, in other words, two fees, a fee for a nursing home of a certain size and a fee for a larger nursing home. The fees suggested by Deputy Yates would appear to be within the bounds of reason ——

Mr. Yates

Is the Minister accepting my proposal?

Dr. O'Hanlon

I did not say that. I said we would consult the health boards and the nursing homes on the level of fees.

Mr. Yates

What are the grounds for registration?

Dr. O'Hanlon

There will be no fee for voluntary nursing homes.

Mr. Yates

Why is the Minister rejecting my amendment if he agrees with every aspect of it?

Dr. O'Hanlon

I do not think we should write into legislation what the fees should be. I am telling the House how we intend to proceed. It will be a reasonable fee which will cover the cost of processing applications for registrations.

Mr. Wyse

The question of fees is a very important aspect of registering nursing homes. I believe the fee should depend on the number of beds in a nursing home, for instance a number of the smaller institutions will not be able to comply with the regulations, and this will be another problem. But in fairness to everybody, the fees should be determined according to the size of the nursing home. This would alleviate the problem on the smaller homes which will now have to spend money to comply with the regulations.

Mr. Yates

I know it is the age old practice of Governments not to accept Opposition amendments so that they will not be encouraged to table any more.

Minister of State at the Department of Industry and Commerce (Mr. Smith)

That is not true.

Dr. O'Hanlon

That is very ungracious of the Deputy. I have already accepted one of the Deputy's amendments.

Mr. Yates

The Minister said that he would redraft the amendment.

Dr. O'Hanlon

My predecessor in office did not even do that.

An Leas-Cheann Comhairle

We are discussing amendment No. 6 until 7 p.m.

Mr. Yates

The Minister said he is in favour of dealing with this matter along the lines I suggested and that the fee would relate to the cost of processing the applications. He then said he could not accept the amendment because he was not going to set down the level of the fee in legislation. Amendment No. 6 does not set down the level of the fee; it merely sets out what the Minister has just said. Therefore, I think my amendment is entirely reasonable as it will ensure that there is conformity in each health board area and it will ensure that the fee is reasonable. I would have thought in all good sense and reasonableness that the Minister would have agreed to amendment No. 6.

Mr. Howlin

On reflection I think there is merit in the Minister's position because if you insert the words in Deputy Yates's amendment there would be the danger that there could be a legal challenge to the fees if the structuring of the fees did not apply exactly to the rate mentioned in the legislation. If the Minister is prepared to set the fee and accept the reasons we put forward, we should accept his word.

Mr. Yates

I accept that disappointment.

An Leas-Cheann Comhairle

Disappointment is one motion shared by many in this House.

Amendment, by leave, withdrawn.

Progress reported; Committee to sit again.