Dáil Éireann debate -
Wednesday, 6 Jun 1990

Vol. 399 No. 7

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

Debate resumed on amendment No. 10:

In page 3, subsection (1), lines 15 and 16, to delete paragraph (a).

——(Deputy Yates).

An Ceann Comhairle

For the information of Members, the following proposals have been made for dealing with the business before us:

1. Amendments Nos. 2, 5, 20 to 28 inclusive, 30, 53, 54, 55, 59, 60, 61, 63, 83 and the proposal to delete section 8 have already been discussed together.

2. Debate now resumes on amendment No. 10 and it has been agreed to discuss amendments Nos. 10 to 17 inclusive together.

3. The remaining suggested groupings are as follows:—

* 18, 19 and 81.

* amendments 2 and 3 to amendment 26.

* amendments 4 and 7 to amendment 26.

* amendment 5 to amendment 26 and amendment 58.

* amendments 12 and 12a to amendment 26.

* amendments 13 and 14 to amendment 26.

* amendment 15 to amendment 26, amendment 2 to amendment 28 and substitute amendment 1 to substitute amendment 30.

* 31, 34 and 70.

* 32 and 33.

* 36, 44 and 46.

* 37a, 38, 39 and 40.

* 41 and 42.

* 48 and 62.

* 64 and 65.

* 66 and 68.

* 76 and 77.

* 78 and 79.

All amendments not included in the above groupings should be discussed individually. Does this meet with the approval of the House?

Mr. Yates

I understood it was informally agreed that sections 2, 3 and 4 would be taken by 6.30 p.m.; that sections 5 and 6 would be taken between 7 p.m. and 8 p.m.; sections 7, 8 and 9 between 8 p.m. and 9 p.m., and the balance taken after 9 p.m.

An Ceann Comhairle

I have no notification of the time factors.

Mr. Howlin

Is it in order to get the agreement of the House now?

An Ceann Comhairle

This House is sovereign in such matters and can decide its business.

Mr. Sherlock

I have no knowledge of any such arrangement. My party Whip made no reference to it nor have I been acquainted of any arrangement.

An Ceann Comhairle

Are you saying you are not agreeing to this?

Mr. Sherlock

I am saying I have not been advised about it.

An Ceann Comhairle

The Deputy is not the only one. May I take it there is approval for the procedure outlined by Deputies Yates and Howlin? May I take it that it is satisfactory and agreed? Agreed.

Mr. Yates

This is a very confined debate, perhaps too confined. I want to reiterate my position on nursing homes that come under the scope of this legislation. The difficulty arises in regard to the categories which would be exempt. My party are opposed to section 2 (1) (a) which refers to institutions managed by or on behalf of a Minister of the Government or a health board. We feel that an exemption should not be conferred on them. Section 2 (1) (b) contains the words "by or under the supervision of a person whose name is entered in the General Register of Medical Practitioners". That should not be referred to. While I agree that acute general hospitals and acute care should not be included, I can see homes being established by general practitioners. Section 2 (1) (g) refers to homes run by the religious and I do not see why they should be exempt. Section 2 (2) refers to subsequent decisions by a Minister regarding a class of institution which would be taken in or out. In effect classes could only be taken in and none could be taken out.

That basically summarises the type of changes we wish to see. I support the Minister's amendment to allow the exemption of Cheshire Homes. It is very important that all institutions which care for the elderly on a residential basis should be included. I said that mental handicap institutions should not be exempt. Having discussed this with the National Association for Mentally Handicapped of Ireland, NAMHI, and others, I have concluded that perhaps they should be dealt with by way of separate legislation. I am happy such institutions are being exempted in these circumstances.

Mr. Howlin

We debated this section in considerable detail on the last occasion. In light of the time constraints imposed on us I do not propose to repeat anything I said then except to state, as a matter of principle, that the Bill before us proposes to improve the conditions and have standardised conditions for all people being cared for in nursing homes or similar institutions. As a matter of principle, the Bill should apply to the maximum possible number of institutions unless there is a particularly good reason for excluding an institution. Clearly from the case made by all Opposition parties on the last occasion the exclusions proposed by the Minister are far too broad. I hope the amendments put down to curtail those exclusions will, on reflection, be accepted by the Minister.

Mr. Sherlock

I have put down a number of amendments to this section. The Workers' Party are concerned at the number of institutions which are not covered by the Bill. I question whether it is right for the Minister and this House to be concerned only about standards and conditions in private nursing homes. Do we not have every right to be concerned about the standards in many public hospitals and homes? The standards in some of these institutions, particularly psychiatric hospitals, may not always be up to the level required. We cannot always blame the health boards for this; because sufficient funds are not made available to the health services standards in some of these institutions may fall.

Why should institutions managed by or on behalf of the Minister or a health board be excluded from the provisions of this Bill, as is proposed in section 2? Why should maternity homes, mental institutions, homes for children or premises in which the majority of the persons being maintained are members of a religious order be excluded? Are these people not entitled to independent monitoring of these institutions to ensure that the highest possible standards are maintained? I am particularly concerned about the exclusion of old persons' homes or retirement homes from the provisions of the Bill. There has been a growth in such institutions in recent years and while they are not technically regarded as nursing homes they are nursing homes in every sense of the word. The people in these homes may not be suffering from any illness or disability but they are unable to look after themselves. Consequently, I feel strongly about the exclusion of so many institutions from the provisions of the Bill.

Mr. Ryan

I wish to refer to the institutions which are being excluded under section 2, particularly under section 2 (1) (a). When we last debated this Bill the Minister said the reason institutions managed by or on behalf of a Minister or a health board are not included within the scope of this Bill is that "they have already been subjected to a statutory and publicly accountable system of management". I ask the Minister to spell out to this House the statutory provisions he was referring to. Can he give us an assurance that these provisions are of a similar standard to those proposed in this Bill?

Beyond a general reference in the Health Act, 1970, I have failed to locate any specific statute dealing with this matter. I ask the Minister to clarify this point. Has he brought in regulations regarding the standards in health board nursing homes and if so, what are they? Are these standards comparable with those proposed for the private sector in section 6 of this Bill? Who enforces these standards? Are they enforced by a body independent of the health board?

The Minister said this Bill is about accountability but I should like to know where the accountability is regarding health board homes. The Minister can hardly be said to be an independent party. Budgetary considerations must weigh largely on his mind. This question has been referred to time and time again. The authority of the Minister to send an inspector into a health board institution is not sufficient assurance that standards will be maintained. When we are dealing with cost cutting factors, budgetary considerations are uppermost in any adminstrator's mind. We have seen this happen time and time again. On the basis of my experience, the Minister is unlikely to appoint an inspector to inquire into the consequences of his cost cutting measures.

The whole system of accountability in the Bill is not good enough. I have been informed by people working in the system that the standards in health board nursing homes have been falling in recent years due mainly to budgetary considerations. If we want to have uniformity in this area, which is vitally important, standards must be maintained right across the board and must be monitored by an independent body. At present the health boards supervise private nursing homes but who will supervise the health boards?

The Minister referred to visiting committees. From my experience, not alone in this area but also in the psychiatric area, it is unacceptable that health board nursing homes should receive many weeks notice in advance of a visit by a visiting committee. This means that every effort can be made by the nursing home to ensure that everything is spic and span and running smoothly. The Minister should have included a provision in the Bill which would provide that a visiting committee can visit such homes anytime they want to make their reports. If this is relevant in the case of the private sector it is even more relevant in the case of the public sector, given the constraints on finances. I ask the Minister to consider this point with a view to including such a provision in the Bill.

Mr. Garland

Amendment No. 12 in Deputy Yates's and my name deals with the exclusion of homes run by medical practitioners from the provisions of section 2. I am disappointed that the Minister does not seem to be in favour of accepting this amendment, which we will have to press to a vote. I should like to take this opportunity of saying how impressed I am with the Cheshire Homes. I am very pleased the Minister has decided to exempt these homes from the requirements of the Bill.

Minister for Health (Dr. O'Hanlon)

As has been rightly said by Deputy Yates and Deputy Howlin, we spent some time on 7 March discussing section 2. We discussed amendments Nos. 10 to 17 which list the homes and institutions excluded from the provisions of the Bill and define the Minister's power to include or exclude classes of homes from the scope of the Bill. Amendment No. 15 in my name excludes homes such as those run by the Cheshire Foundation. These homes care for dependent people but their ethos is to promote the greatest level of independence possible. Amendment No. 17 proposes removing the power of the Minister to exclude classes of homes from the scope of the Bill. Deputy Yates put forward a similar amendment.

The issue of the exclusion of voluntary mental handicap homes was raised earlier in the debate. Voluntary mental handicap homes are excluded from the present nursing home legislation and I see no good reason to bring them within its scope. I am glad that Deputy Yates agrees that it would be more beneficial to deal with this under different legislation, which we will look at. I have the power under section 2 to include profit making homes for the mentally handicapped should the need arise. I am aware of the need for legislation to deal with the protection of the mentally handicapped generally and I will be putting forward proposals for new legislation to protect the mentally handicapped in the context of a discussion document on legislation on mental health. The registration of mental handicap homes should be dealt with in the context of the wider mental handicap legislation.

The exclusion of homes run by religious communities where the majority of the dependants are priests or members of a religious order was also raised in the earlier debate. This relates to section 2 (1) (g). I will be moving an amendment on Report Stage to allow such homes to come within the scope of the legislation if they so wish. This will meet the requirements put forward by the Opposition in the earlier debate but will avoid bringing homes such as Carmelite Monasteries within the scope of the Bill which I am sure the House would agree, would not be appropriate.

On the questions raised by Deputy Ryan in regard to section 2 (1) (a) — the exclusion of an institution managed by or on behalf of a Minister of the Government or a health board, for example — if we were to exclude that section prisons would have to be included. On the question of accountability by the health boards, they provide a high standard of care and I am very disappointed to hear Deputy Ryan say that the standard of care for the elderly has dropped in health board institutions. That is certainly not my experience when I visit many of them around the country. I could not be more impressed by the high standard of care which is rightly provided for the elderly in our society. There has been an improving standard all the time as older buildings are replaced and other buildings refurbished. There is also the commitment and dedication of the staff; I could not accept that the standard has dropped. The health board institutions have a system of accountability.

Mr. Ryan

Not a statutory one.

Dr. O'Hanlon

They do have a statutory system of accountability. I was a member of a health board for 17 years and members can, if they feel it necessary, raise the issue of improvements that might be made in the services. The Deputy referred to visiting committees and made the point that if the hospital knows that a visiting committee is to visit they may do something different. Members of health boards who are on visiting committees, however, also regularly visit homes for the elderly in their areas to visit neighbours and perhaps relatives of their own. Even if it the hospital were to do something extraordinary on the day the visiting committee were coming, that would be obvious to members who visited the hospital at other times.

In terms of public accountability, there is an opportunity for Deputies to ask questions of the Minister. Also under section 83 of the Health Act, 1970, I have the power to institute an inquiry and to ask an inspector to call to a particular insitution and I would have no hesitation in doing that. I cannot agree with Deputy Ryan that a Minister would not institute such an inquiry because it might be looking at the Minister's own policies. Successive Ministers have been more than careful to ensure that the very highest standards are maintained in all our health board institutions.

Mr. Howlin

Let me preface my remarks by saying I do not wish to extend the debate on this section unduly as we have two other sections to get through in the next hour and a half. I want to comment briefly on a few of the Minister's remarks. On the previous occasion the Minister went through each of the categories to be excluded and gave the reason he felt they should be excluded. Basically the criterion was that they were already accountable under existing legislation. Certainly in some instances that would be accepted.

I am a little concerned about the amendment the Minister is now proposing to introduce on Report Stage to rectify the obvious anomaly in subsection (2) (g) in relation to religious institutions because many Deputies felt that religious communities should be afforded the same standards and the same rights as any other citizens. The Minister now indicates that he will bring in an amendment on Report Stage to allow those who wish to be included under the terms of the legislation. I wonder who exactly will do the wishing? Will it be the managements of the institutions, the convent, the monastery, the retirement home, or the people actually living there? Perhaps the Minister would circulate the terms of the amendment he proposes to introduce so that at least we will be aware of that before we reach the existing amendments before us on that section?

I welcome amendment No. 17 which is also taken in this grouping although I am still a little concerned about the broad power. I do not like broad enabling powers being given to the Minister without proper monitoring by the Oireachtas and we will reach other amendments dealing with that subsequently.

All in all, other than the views I have expressed now, this section has got a good thrashing out.

Mr. Yates

First, I welcome what the Minister said about introducing an amendment to paragraph (g) on Report Stage, but in line with what Deputy Howlin said I feel it should be at the request of the residents of the religious home that it be included.

I would like to make some other comments arising out of what the Minister said in relation to paragraph (a), the exemption for an institution managed by or on behalf of a Minister of the Government or a health board and leaving aside the Minister's reference to prisons — that was a very unfortunate example because, according to what I hear, their lack of medical facilities is appalling — would it be possible to consider adding on Report Stage the words "other than a geriatric home run by a health board"? There must be some element of trying to level the playing field here, to use a current cliché, where in public geriatric homes could be entitled to the same protection. One of the homes I always hear about is the Sacred Heart Home in Castlebar, which is very understaffed and has all sorts of problems. Not wishing to be too specific, however, I think it is important that there is a basic level of nursing care and so on at night. While we do not want every category and every State institution brought in under this, the Minister might consider not exempting certain compatible geriatric homes.

The second point I wish to make relates to paragraph (b) to which I do not think the Minister responded. What is proposed to be exempt is an institution in which the majority of the persons being maintained are treated for acute ailments and/or under the supervision of a person whose name is entered in the general register of medical practitioners. I take it that if a general practitioner sets up a home which is providing, say, post-convalescent care, he could argue that he is exempt from the regulations under paragraph (b) here. I feel this is badly worded. I am not satisfied that this would not allow general practitioners to front nursing homes and gain exemption.

Finally, I would like to specifically ask the Minister whether some Jewish homes that are seeking exemption, broadly under the same category as the Cheshire Homes, will be exempt.

Mr. Sherlock

The Minister told us that there are ways and means available to him, such as under the Health Act, 1970, to deal with this matter but it should not be necessary for him to refer to other Acts when he is enacting legislation to set standards for nursing homes. It seems ridiculous to exclude so many institutions, particularly institutions managed by or on behalf of a Minister of the Government or a health board. The legislation should cover all aspects of nursing care. We are not suggesting that there should be an imposition on health boards but we want the standard outlined in the Bill. The Minister should reconsider his position on this and include the amendment.

Dr. O'Hanlon

I am satisfied that there will be sufficient accountability to ensure that the highest standards are maintained by institutions under the control of health boards or of a Minister of the Government. We debated this issue at length on the last occasion. I should like to tell Deputy Howlin, who raised a question about giving religious orders the right to opt in or out, that such a decision will be taken by those in control of religious orders. Deputy Yates raised a question about Jewish homes and I should like to tell him that we have not received any representations from them. I am not making a commitment at this stage but I will consider any case the Deputy has in mind. Obviously, we have to ensure that we maintain a certain thrust throughout the Bill. It would be unreasonable to permit some homes to opt out and insist on others being retained.

Deputy Yates raised a question about paragraph (b) which deals with an institution where people being maintained are being treated for acute ailments. It is clear that that means an acute hospital. It will be a matter for a health board to interpret whether a hospital is an acute hospital or a home where people are convalescing and as such should come within the scope of the Bill. If it is a nursing home it will have to come within the scope of the Bill. While the wording appears clear I should like to tell the Deputy that we will, between now and Report Stage, take advice on this. We want to ensure that acute hospitals looking after patients with acute ailments are not included and that homes which are nursing homes are included.

Amendment, by leave, withdrawn.

Amendments Nos. 11 to 14, inclusive, not moved.

Dr. O'Hanlon

I move amendment No. 15:

In page 3, subsection (1), between lines 29 and 30, to insert the following paragraph:

"(g) an institution operated otherwise than for profit—

(i) that is for the care and maintenance of physically handicapped persons a majority of whom do not receive whole-time nursing care in the institution,

(ii) in the management of which representatives of the Minister or a health board and representatives of the persons being maintained in the institution participate with other persons,

(iii) to which grants are paid by the Minister or a health board, and

(iv) to which paragraphs (a) and (b) of section 333 (1) of the Income Tax Act, 1967, apply, and"

Amendment agreed to.

Amendment No. 16 not moved.

Dr. O'Hanlon

I move amendment No. 17:

In page 3, subsection (2), lines 38 and 39, to delete "or that it ought not to apply to a class of nursing home to which it applies".

Amendment agreed to.

An Leas-Cheann Comhairle

We now move to amendment No. 18. Amendment No. 19 is an alternative and No. 81 is consequential. It is proposed, therefore, to take amendments Nos. 18, 19 and 81 together for discussion.

Mr. Howlin

I move amendment No. 18:

In page 3, subsection (2), line 42, after "subsection" to insert ", provided such amending regulations be approved by Dáil Éireann within twenty-one days".

I am always concerned when sections in any Bill are broad enabling sections which devolve to a Minister power to take actions which are of a legislative nature. Under section 2 the Minister has the power to extend the provisions of the Bill to categories not already covered. Before the section was amended the Minister had power to exclude categories. That was a more serious power and caused me more concern but I am glad that we have limited the power of the Minister to extend the provisions of the Bill to categories not already included. Generally, I do not think the Minister will have any difficulty with that but, as a matter of principle, all regulations should be brought before the House to be copperfastened. My amendment seeks to have amending regulations approved by the Dáil within 21 days. That will enable the House, if it sees fit to express a view on a regulation.

We should remember that the Whips agree each week to take motions without debate if there is no controversy about them but, as a matter of fundamental principle, on all matters the final decision should be in the hands of the elected Members of the House. Motions should not be allowed through by stealth. It is impossible for Members to follow the huge number of statutory instruments that pour out of all Government Departments. I was a member of the Committee on Legislation in the last Dáil and we studied the volume of statutory instruments emanating from Government Departments. It was a staggering experience for most of us to realise the volume of real legislation that was being introduced outside the Houses of the Oireachtas. That was taking place because the Oireachtas had devolved to Ministers the power to make those important decisions. Important issues should have to come before the House for approval.

This is not a difficult issue and, if there is no controversy about motions, the time of the House will not be taken up. Umpteen motions are agreed on a regular basis by the Whips and they go through the House without debate. The Minister, in an effort to make the institutions of Government, particularly his Department, more accountable to the House should accept my amendment.

Mr. Sherlock

Amendment No. 19 in my name, an alternative to amendment No. 18, states:

In page 3, between lines 42 and 43, to insert the following subsection:

"(3) Where it is proposed to make regulations under this section, a draft of each regulation shall be laid before each of the Houses of the Oireachtas, and the regulation shall not come into effect until a motion approving of the draft has been passed by each such House.".

Subsection (2) states that if the Minister becomes of opinion that this Act ought to apply to a class of institution for the care and maintenance of persons that it does not apply to, or that it ought not to apply to a class of nursing home to which it applies, he may by regulation amend the definition of "nursing homes". A draft of each regulation should be laid before each House of the Oireachtas and the regulations should not come into effect until a motion approving the draft has been passed by each House. When Bills are going through the House we deliberate on each section and highlight differences between the Government and the Opposition. The least that might be done, following such debates, is to bring regulations before the House for approval. We must remember that a large number of institutions have been excluded. It seems likely that the Minister will bring in regulations and I am disappointed that he will not accept the amendment. However, any regulation the Minister proposes to make should be brought into the House before it is put into effect.

Mr. Yates

I support these amendments. The net issue is whether this legislation is accountable to the Dáil or to the Department of Health civil servants. I marginally prefer amendment No. 18 because it requires the approval of the Dáil as opposed to laying it before the Houses of the Oireachtas. However, they are both worthy of support and I hope the Minister will accept them on Report Stage.

Dr. O'Hanlon

There are sufficient safeguards in the legislation and I do not propose to accept the amendments. Deputy Yates said it was a choice between being accountable to the Dáil and the Department of Health and he said he would prefer the legislation to be accountable to the Dáil. The fact that regulations have to be laid before the Dáil means that the legislation is accountable to this House which has 21 days to annul the amended regulation if it so requires. Section 15 provides that every regulation made under it shall be laid before each House of the Oireachtas and, if a resolution is passed by either House within a specified period, the regulations may be annulled. This approach is satisfactory and the regulations extending the scope of the Bill should not have to be specifically approved. Indeed, the arrangement in the Bill is standard practice for legislation for regulations passed by this House. Very rarely is this type of section not included in a Bill.

Mr. Howlin

I fully accept that this is ordinary and standard practice but we should not accept it. I hope the Minister will see his way to changing what is normal and standard. Deputy O'Hanlon will not always be a Government member and all elected Members share a common view that the elected representatives should take the final decision in matters of this kind. As I said, I served on a committee which looked at the whole area of statutory instruments and the Minister knows, from his Department, how many such instruments he is required to sign. A huge volume of legislation — greater than the total volume which goes through this House — is enacted without reference to the elected representatives of the people. This is not good enough and the procedure of annulling regulations should not be acceptable. Can any Member of this House name every statutory instrument and report which are laid before the House, which means there is a copy in the Library? I defy anyone to name them all; we can only see those referred to on the day's Order Paper. Basically, it is impractical for people to monitor all that and be in a position to bring in annulling regulations. If there was a procedure whereby an affirming order had to be brought before this House it would at least require us to glance at it and to know what sort of legislation was being passed. It is secondary legislation and as binding as any law passed in this House. We should bring that power back to ourselves and, for that reason, I will be pressing amendment No. 18.

Mr. Byrne

I support the amendments before the House. The section says that the Minister may, by regulation, amend the definition of "nursing home". That would empower the Minister to make tremendous changes in the Bill if he chose to take that option. For example, he could change the definition of "nursing home" which means an institution for the care and maintenance of more than two dependent persons to "dependent persons". Indeed, he could amend that section to read "ten persons", "15 persons", or whatever number he decided on, which would not be in the spirit of the debate because it would vest far too much regulatory power in the Minister. The important safeguard that regulations would have to be brought before the House must be enshrined in this legislation. Perhaps the Minister will consider this matter.

Dr. O'Hanlon

The arrangements which apply at present to most legislation, that regulations are laid before each House of the Oireachtas, are adequate. I do not believe that successive Governments would go out of their way to introduce amending regulations which would be unacceptable to the general population.

That has not been the case in the past and, while everybody might not agree with them, the regulations generally respond to the needs of the people at the time. The Minister of the day, the Government, the Department of Health and — above all — the Dáil and Seanad are safeguards because these regulations must be laid before each House. Deputy Howlin referred to the fact that the regulations appear in the Order Paper and I have no doubt that Deputies in Opposition read the Order Paper assiduously every day. If they are perturbed about something they may ask a question or, if they want to raise regulations in the Dáil, they have a period of time within which they can object to them, debate them in the House and if they are defeated the regulations are annulled. I am satisfied that the traditional method in this House is a sufficient safeguard to ensure that the legislation is in accordance with the wishes of the Members of this House and the people.

Mr. Sherlock

Subsection (2) gives the Minister the power to include but it also gives him wide-ranging power to exclude. Having enacted legislation, the Minister could then exclude institutions and that is all the more reason for bringing regulations before this House.

Dr. O'Hanlon

In amendment No. 17 we have removed that power which the Minister had heretofore.

Amendment put and declared lost.

An Ceann Comhairle

We come to amendment No. 19 which was discussed with amendment No. 18.

Mr. Sherlock

I move amendment No. 19:

In page 3, between lines 42 and 43, to insert the following subsection:

"(3) Where it is proposed to make regulations under this section, a draft of each regulation shall be laid before each of the Houses of the Oireachtas, and the regulation shall not come into effect until a motion approving of the draft has been passed by each such House.".

Amendment put and declared lost.

Section 2, as amended, agreed to.

NEW SECTION.

An Ceann Comhairle

Here we have amendment No. 20 in the name of the Minister, which was discussed earlier with amendment No. 2. It is a substitute amendment. Perhaps the Minister would say what is the difference between the original and the substitute now before us.

Dr. O'Hanlon

I move amendment No. 20:

In page 3, before section 3, to insert the following new section:

"3. —(1) A person shall not carry on a nursing home unless the home is registered and the person is the registered proprietor thereof.

(2) A person shall not be in charge of a nursing home unless the home is registered.

(3) Subsections (1) and (2) shall not apply during the period of one year beginning on the commencement of this Act to a person who is carrying on or in charge of a nursing home in any premises if, immediately before such commencement, a nursing home was being carried on in those premises.

(4) A person shall not, whether by advertisement or otherwise, hold out a nursing home as being registered unless it is registered.".

As a matter of courtesy to the House I should like to explain the background to a number of additional and substitute amendments which I tabled since Committee Stage began. Amendment No. 20 proposed the insertion of a new section dealing with the prohibition of unregistered nursing homes. If that amendment stood all nursing homes would automatically be illegal the day the provisions of the Act became operative. I have tabled a substitute amendment to provide that nursing homes in business on the day the Act becomes operative will have a year in which to comply with the registration procedures. This will allow health boards to spread the inspection and registration procedures over 12 months, rendering the Act easier to administer in its first and subsequent years of implementation. Of course, new nursing homes will be expected to comply with the registration procedures before opening.

Mr. Yates

I welcome this substitute amendment No. 20. It deals with a point discussed at some length here, which was the interim procedures involved in these new regulations, it satisfactorily clarifies the issue and constitutes a substantial improvement. I hope there will be adequate staff made available to health boards to ensure that all nursing homes are brought up to date. One of the great anomalies obtaining is that, for financial reasons, no new nursing home has been approved since 1980 because, once a nursing home has been approved by the Department of Health, a subvention can be paid to its patients who are eligible; even though some superb nursing homes have opened since then they have not been sanctioned. As I said, I hope staff will be made available to deal with the backlog of nursing homes and to ensure that they are up to standard so that their owners will not have to wait longer than 12 months and will not be left in that type of limbo.

Therefore, we will be supporting amendment No. 20.

Mr. Howlin

I too welcome the new amendment which constitutes an improvement on the old section 3. It will allay many of the fears expressed earlier in relation to the interim procedures because there are so many nursing homes now in existence, and so many people are excellently cared for in the vast majority of them. The position seems to have been clarified to their satisfaction.

I share Deputy Yates' concern that, despite the fact that there has been a significant increase in the number of nursing homes recently, for financial reasons, there are many people who still cannot gain access to them. I shall be dealing with this matter later. I am concerned that adequate resources be made available to enable all those in need of nursing home care to avail of it. If that is deemed to be the most appropriate form of care for an elderly person, it would be most unacceptable that such would not be available to them for financial reasons.

I also welcome this new section which incorporates one of the fundamental objections the nursing homes organisation had to the Bill at the outset, which was the term "licence". That has been changed, getting away from the whole notion of licence to one of registration, which is a more acceptable term to them.

For those reasons I welcome amendment No. 20 and will be supporting it.

Amendment put and agreed to.

An Ceann Comhairle

Acceptance of this amendment involves the deletion of section 3 of the Bill. Also amendments Nos. 21, 22, 23, 24 and 25 fall.

Amendments Nos. 21 to 25, inclusive, not moved.

Section 3 deleted.

NEW SECTION.

An Ceann Comhairle

Amendment No. 26 in the name of the Minister. This amendment was discussed with No. 2 earlier.

Dr. O'Hanlon

I move amendment No. 26:

In page 4, before section 4, to insert the following new section:

"4. —(1) Each health board shall establish and maintain a register of nursing homes in its functional area (referred to subsequently in this Act as `a register').

(2) (a) 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, the address of the premises in which it is carried on, a statement of the number of patients who can be accommodated in the home, the date on which the registration is to take effect (referred to subsequently in this section as `the date of registration') and such other (if any) particulars as may be prescribed.

(b) A register maintained under this section shall be made available for inspection free of charge by members of the public at all reasonable times.

(3) (a) A health board may, on application to it in that behalf by a person who proposes to carry on a nursing home in its functional area, register or refuse to register the home.

(b) Subject to the provisions of this section, the period of a registration shall be 2 years from the date of registration.

(c) Where a health board registers a nursing home, it shall issue to the registered proprietor thereof a certificate of registration in the prescribed form.

4 (a) A person who proposes to carry on a nursing home may, before making an application under subsection (3) for the registration of the home, apply to the health board in whose functional area the home will be situated for a declaration by it that he is a suitable person to carry on a nursing home and, if he does so and pays the prescribed fee to the board, the board shall, unless the person has been convicted of an offence under this Act or the Act of 1964 or of any other offence that is such as to render the person unfit to carry on a nursing home, give to the person a statement by it in writing declaring that he is a suitable person to carry on a nursing home.

(b) An application to a health board for registration made by a person to whom a declaration under paragraph (a) has been given by the board shall not be refused for a reason specified in paragraph (ii) of subsection (6) unless the person has been convicted of an offence specified in the said paragraph after the making of the application for the declaration.

(c) A health board may refuse to give a declaration under paragraph (a) to a person who fails or refuses to furnish the board with information requested by it pursuant to subsection (10) in relation to the application for the declaration and may refuse to give a declaration, or revoke a declaration given, to a person who, in relation to the application, has furnished the board with information that is false or misleading in a material particular.

(5) A health board may remove a nursing home from the register.

(6) A health board shall not—

(a) refuse to register a nursing home in relation to which an application for its registration has been duly made, or

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

(i) it is of opinion that—

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

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

(ii) the applicant or the registered proprietor, as the case may be, or the person in charge or, as the case may be, proposed to be in charge of the home has been convicted of an offence under this Act or the Act of 1964 or of any other offence that is such as to render the person unfit to carry on or, as the case may be, to be in charge of the home, or

(iii) the applicant or the registered proprietor, as the case may be, has failed or refused to furnish the board with information requested by it pursuant to subsection (10) or has furnished the board with information that is false or misleading in a material particular, or

(iv) the registered proprietor has, not more than one year before the date from which the registration or removal from the register would take effect, contravened a condition under subsection (8).

(7) (a) A health board may refrain from registering a nursing home in relation to which an application for its registration has been duly made until the prescribed fee in respect of the application has been paid to the board.

(b) A health board may refrain from giving a declaration under subsection (4) until the prescribed fee in respect of the application has been paid to the board.

(8) (a) A health board may—

(i) at the time of registration or subsequently attach to the registration conditions in relation to the carrying on of the nursing home concerned and such other matters as it considers appropriate having regard to its functions under this Act,

(ii) attach different conditions to the registration of different nursing homes, and

(iii) amend or revoke a condition of registration.

(b) Conditions imposed under this subsection or amendments and revocations under this subsection shall be stated in the certificate of registration concerned or notified in writing to the registered proprietor of the nursing home concerned.

(9) An application for registration or for a declaration under subsection (4) shall be in the prescribed form or in a form to the like effect and shall be accompanied by the prescribed fee.

(10) (a) A health board may request an applicant for registration or, as the case may be, a registered proprietor or an applicant for a declaration under subsection (4) to furnish it with such information as it considers necessary for the purposes of its functions under this Act.

(b) A person who, whether in pursuance of a request or otherwise, furnishes information to a health board for the purposes of this Act that is false or misleading in a material particular shall be guilty of an offence unless he shows that, at the time the information was furnished to the board he was not aware that it was false or misleading in a material particular.

(11) The registered proprietor of a nursing home who proposes to carry on the home immediately after the expiration of the period of registration of the home may apply under subsection (3) to the health board concerned not less than 2 months before such expiration for the registration of the home and, if the board does not notify him before such expiration of its refusal to register the home, it shall register the home and its date of registration shall be the day following the day of such expiration.

(12) (a) Where a registered nursing home commences to be carried on by a person other than the registered proprietor—

(i) the home shall thereupon cease to be registered,

(ii) the person shall, (if he has not done so before such commencement) apply not later than 2 weeks after it, to the health board concerned for the registration of the home, and, if the application is granted, the date of registration of the home shall be that of the day following the day of the cesser aforesaid,

(iii) if the application aforesaid is duly made, and is not refused then, during the period from the commencement aforesaid until the home is registered it shall be deemed, for the purposes of section 3, to be registered and there shall be deemed to be attached to the registration any conditions attached to the previous registration.

(b) A person who contravenes paragraph (a) (ii) shall be guilty of an offence.

(13) (a) Where a health board proposes to refuse to register a nursing home, to refuse to give a declaration under subsection (4), to remove a nursing home from the register, to attach a condition to, or amend or revoke a condition attached to, a registration, it shall notify in writing the applicant or the registered proprietor, as the case may be, of its proposal and of the reasons for it.

(b) 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 board shall—

(i) before deciding the matter, take into consideration any representations duly made to it under this paragraph in relation to the proposal, and

(ii) notify the person in writing of its decision and of the reasons for it.

(14) A notification of a proposal of a health board under subsection (13) shall include a statement that the person concerned may make representations to the board within 21 days of the receipt by him of the notification and a notification of a decision of a health board under subsection (13) shall include a statement that the person concerned may appeal to the District Court under section 5 against the decision within 21 days from the receipt by him of the notification.

(15) Where, in relation to a nursing home, there is a contravention of a condition of registration, the registered proprietor and the person in charge of the home shall be guilty of an offence.

Mr. Yates

I move amendment No. 1 to amendment No. 26:

1. In the first line of subsection (3), to delete "a health board" and substitute "the Department of Health".

The amendment echoes a point made by Deputy Ryan earlier. I am very concerned that there be uniformity in the operation of the provisions of this Bill — from Donegal to Kerry, from Dublin to Galway. I contend that the implementation of its provisions should be undertaken by the Department of Health not by the health boards. This matter has been discussed previously. I have fears with regard to every aspect of health board services, whether it be dental, community care, the level of occupational therapists — with which we dealt at Question Time today — because there are variations in the development, quality and quantity of health board services. I have no doubt that if I table a parliamentary question to the Minister in, say, two years time he will reply: "It is a matter for the individual health board to determine what they see fit." I contend that would not not be good enough. The Department of Health should play a more central role in the operation of the provisions of this Bill. It is for that reason I seek to delete "a health board" and substitute "the Department of Health".

Dr. O'Hanlon

I do not propose to accept this amendment. I consider it would be inappropriate for the Department of Health to take on the responsibility of being the registration authority for nursing homes. The Department of Health are concerned primarily with policy formation, financing and reviewing the performance of those agencies which deliver services. The health boards are statutorily responsible for the provision of health and personal social services in their areas. They have a statutory obligation to determine who is eligible for health services and for the maintenance of standards in private nursing homes. The statutory position on the practical working arrangements has been recognised in the Bill, in proposing that health boards will act as regulatory, monitoring and subventing authorities in relation to private nursing homes. The staff of health boards have the expertise, local knowledge and integrity to discharge these functions. Therefore, it would not be either efficient or helpful to involve the Department, as is proposed in this amendment.

I agree with Deputy Yates about the need for uniformity in the implementation of the provisions of this Bill. Indeed, it is my intention that its provisions will be implemented uniformly throughout the country. The regulations, which have been circulated, and the code of practice, which will be prepared, will encourage greater uniformity of approach on the part of health boards and nursing homes. There is a great deal of goodwill on the ground to ensure good standards of care. Indeed the provisions of the Bill have been welcomed by the owners of nursing homes. In my view it is more satisfactory under the provisions of this Bill to leave the regulation, monitoring and subvention of nursing homes to the health boards. As I have said, local expertise and knowledge are important in carrying out these functions. I do not believe it would be helpful to involve the Department of Health.

Mr. Yates

I am disappointed at the Minister's response. Will he give the House a commitment that on such matters as staffing levels, procedures to be applied with regard to inspections, notifications — other than the bare regulations — he will issue guidelines to each health board on all the operational aspects of the Bill, as opposed to the regulations which are to be complied with? I feel very strongly about this issue and I would not raise it unless I had solid experience to suggest that different health boards can have different practices and different levels of interest. It is also true to say that a town like Bray has far more nursing homes than a town like Letterkenny. Nursing homes have mushroomed in some areas in comparison with other areas. Therefore, there is a need for uniformity and an overall guideline at a minimum. I will certainly be pressing the matter unless the Minister is prepared to give a commitment that the operational aspects as opposed to the legal framework of regulations are uniformly applied by way of guidelines throughout all eight health boards.

Mr. Howlin

I am not sure that the position of the Minister and that of Deputy Yates are so far apart. We all seek to have common standards so that there will not be a disparity between the quality of nursing homes available to Irish citizens whether they be in Cork, Donegal, the midlands or the east coast. I think the way to go about it is not necessarily to standardise it in the Department of Health, and there are good local reasons that it should be in the hands of the local health boards. The Minister's position is quite acceptable on that matter. However I take Deputy Yates's view very strongly on board and all of us who deal with health boards come in contact with gross differences in standards in relation to a whole range of issues. Perhaps the Minister could undertake — I think this is his ambition — to have an overview of standards, in terms of the quality of service to be provided, laid down by the Department. It is assumed that once the standards have been laid down, the health boards will implement them on the ground. That would be an acceptable arrangement where both Deputy Yates and the Minister's positions could be easily accommodated.

Mr. Garland

I would like to say that I agree with the Minister's approach. I think the more we can decentralise the decision-making process which is proposed under the Bill the better. Deputy Yates's amendment would centralise more powers in the Department of Health and take away power from the health boards, and therefore I would not support Deputy Yates's amendment.

Dr. O'Hanlon

I appreciate the views expressed by Deputies Howlin and Garland, and I also agree with Deputy Yates about the need for uniformity. Of course, the ambition of everybody in the House is to ensure that the very highest standards are maintained. On the last occasion we were on Committee Stage, I promised the House that we would prepare a code of practice which would be circulated before Report Stage. We have drafted a code of practice and I think Deputies will be very happy with it when we publish it and circulate it before Report Stage. There are 26 sections and a number of subsections on the philosophy of care, and it then goes on to section 68 on the guide to nursing home legislation and there are a number of subsections as well. It is quite a comprehensive document. I believe it will meet the requirements to ensure there is uniformity throughout each health board area.

Mr. Howlin

What status will that document have when it is circulated to the health boards? Will it be binding, consultative or advisory?

Dr. O'Hanlon

It is a guide and will incorporate what the Department of Health expect from the various agencies providing nursing home care.

Mr. Howlin

Should the health board ignore it, will the Minister be in a position to take action against them to ensure that the standards required by all of us are enforced on the ground?

Dr. O'Hanlon

It is important to recognise that the document incorporates what is in the legislation, both in the Bill and in the regulations, which will be legally binding. However, as well as that there is a lot of other valuable information spelling out what we expect from them.

Mr. Yates

This is not an academic matter. I have received a great many complaints from those who operate nursing homes on for example, the code of practice for inspections, whether there should be notification of inspection or not; how often an inspection should take place; whether one or two officers of the health board should carry out the inspection. I am happy to withdraw this amendment if the Minister will give an assurance that it is his intention to stand over the code of practice and ensure that people in varying parts of the country are subject to the same standards, so that the Private Nursing Homes Association can advise their own members of what to expect. We do not want a handbook that is gathering dust and has no meaning. The Minister, as Deputy Howlin has said, has an opportunity to bridge the gap and clearly show his commitment to enforcing the code of practice. I accept the code of practice but I hope it will be enforced and that it will deal with the day-to-day executive and administrative operational aspects of nursing homes so that the law will not mean different things in different parts of the country.

Dr. O'Hanlon

I will be happy to give the Deputy an assurance that, as far as the Department of Health are concerned, it is our ambition to take all the necessary means to ensure there is uniformity throughout the country.

Amendment, by leave, withdrawn.

An Ceann Comhairle

Amendment No. 2 to amendment No. 26 is in the name of the same Deputy. Amendment No. 2 to amendment No. 26 and amendment No. 3 to amendment No. 26 are alternatives and may be taken together. Is that agreed? Agreed.

Mr. Yates

I move amendment No. 2 to amendment No. 26:

In the second line of subsection (3) (b), to delete "2 years" and substitute "5 years".

I do not know whether the period should be three, four or five years before registration is reviewed. Two years is somewhat too regular. However, if it comes to the attention of the health board or the Minister for Health that a particular nursing home is in breach of the regulations, it would lose its registration and the process of sanction would apply. In the normal course of events I think it is important for the smooth operation of the nursing home that there would be a degree of permanence so that people could make substantial investments in their nursing homes, that they would know what the minimum standards are and that they would build up to that. I would not like to see a stop-go situation, that every second year there would be a question mark hanging over the future of the nursing home.

I think that every two years is too often to reapply for registration. I am not desperately opposed to Deputy Howlin's amendment for every four years. I feel that two years is too narrow.

Mr. Howlin

My amendment is identical to Deputy Yates's in so far as it seeks to broaden the period of registration, the difference being that Deputy Yates chooses a period of five years while I favour a period of four years. Clearly we both hold the view that two years is too short a period. Deputy Yates has rightly instanced that should there be a recognisable difficulty with the operation of any nursing home, the generality of the legislation provides that action will be taken, so what we are talking about is the normal, good, acceptable nursing home having to reapply for registration. A two year period is rather confined and will run around very quickly for a successful nursing home. I think they should be given a reasonable period of registration once they are found to be suitable and comply with the regulations drawn up under the legislation. I suggest a period of four years and I wonder whether, in the interim period between the initial Committee Stage and now, the Minister has had time to reflect on this issue and whether he will move away from the rather narrow two-year registration which he envisaged originally when the Bill was first distributed.

Mr. Garland

There should be consensus on the compromise. One could argue for hours what the period should be but I think three or four years would be reasonable. Surely we want to try to reduce bureaucracy and the red tape within reason. Therefore I think the four-year period proposed by Deputy Howlin would fit the bill admirably.

Dr. O'Hanlon

I believe that two years is a sufficient period for the duration of registration. The working party report on the elderly, The Years Ahead recommended annual registration. That is a splendid report and a very good representative group were involved in producing it. I felt that one year would be too frequent and therefore I have provided for two years in the Bill. In my view that strikes the right balance as it provides an incentive for nursing home owners to maintain consistently good standards without burdening homes with red tape.

Mr. Howlin

I am disappointed with the Minister's response. He should reflect upon the view of this side of the House. We should try to work together on this legislation. There is a view, certainly among the operators of nursing homes, that an annual registration would be too frequent and too demanding on them. Should there be no complaint and no difficulty with them, I wonder why the Minister seeks registration on a biannual basis. I do not know what we can do to persuade the Minister, if he is adamant not to yield on this matter, except press the amendment.

Mr. Yates

This matter must be seen in the context of section 6 (3) which lays down all the different regulations that must be operated in relation to the standards in nursing homes. It states: "Where, in relation to a nursing home, there is a contravention of a provision of the regulations the person carrying on the home and any person in charge, or taking part in the management, of the home shall be guilty of an offence". It is quite clear that at any time within the period laid down, the full sanctions of the law will apply. Therefore, there is no question of trying to slip something through or that a person once registered will relax and not maintain standards. If for any reason there is a complaint or there is dissatisfaction, the powers are there to deal with it. The question arises therefore as to the permanence of registration. If we want quality homes we are talking about very large investments, and the least the Minister can do is meet us half way and say he will consider introducing an amendment on Report Stage to provide for a three year period. I would ask the Minister to avoid having this matter pressed to a vote and bringing about 160 Deputies in here but rather to accept three years as a compromise.

Dr. O'Hanlon

I appreciate what the Deputy is saying but one has to take account of what the working party recommended, that there should be annual licensing, and we have extended the period to two years. With practically every licensing system, registration takes place each year. I believe a two-year registration system is right in this case. we all want to ensure that we protect the interests of the people who use the nursing homes while at the same time not making it too inconvenient for the nursing home owners. It is my view that under a two-year registration system the owners who are maintaining very good homes will continue to do so. I think they would not disagree with a two-year registration period. It would certainly be better than the one-year period recommended by the working party.

Mr. Howlin

I am sorry the Minister is so immovable on this point and I do not know why. The report of the working group is an excellent one in virtually all aspects. We are talking about good operational nursing homes against whom there is no complaint. This provision will put an extra imposition on health boards in relation to the bureaucratic monitoring of applications every two years. The staff involved would be better employed in a general monitoring of the standards which, as I have said, could be checked at any time. The Bill should provide that any nursing home in breach of the standards or the regulations could be taken before the courts at any time. We will withdraw the amendment if the Minister agrees to think about the period of time between now and Report Stage.

Dr. O'Hanlon

I would be delighted to consider the matter between now and Report Stage. As I have said, we want to ensure that the legislation is satisfactory and in the interests of people who use nursing homes, but at the same time we do not want to impinge too much on nursing home owners who are maintaining good premises. We will certainly consider the matter but at this stage I am not prepared to give a commitment that we will change the period in question.

Amendment, by leave, withdrawn.

Amendment No. 3 to amendment No. 26 not moved.

An Leas-Cheann Comhairle

Amendment No. 4 to amendment No. 26 in the name of Deputy Sherlock. Amendment No. 7 to amendment No. 26 is cognate and therefore it is proposed to take the two amendments together for discussion purposes. Is that agreed? Agreed.

Mr. Sherlock

I move amendment No. 4 to amendment No. 26:

In the third and fourth last lines of subsection (4) (a), to delete "or of any other offence that is such as to render the person unfit to carry on a nursing home" and substitute "or is in the opinion of the Board, for any other reason, a person unfit to carry on a nursing home".

There are many grounds on which a person would be unfit to carry on a nursing home, which are not prescribed in the Bill, and for that reason I move this amendment.

Dr. O'Hanlon

I do not propose to accept these amendments. I consider that the fitness of a person to carry on a nursing home should be related to conviction for offences, as indicated in subsection (4) (a). The amendment proposed would give too great a discretion to the health boards and could undermine the positive approach to the Bill expressed by all interested parties. The subsection as drafted will achieve the objective sought by the Deputy, to prevent unsuitable persons from carrying on a nursing home.

Mr. Sherlock

The Minister stated that the basis on which a person could be deemed to be unfit would be conviction for an offence. Surely the Minister must realise that there are other circumstances in which the proprietor of a nursing home may be deemed to be unfit — for example, if the person is an alcoholic. Would the Minister agree that in such circumstances the person could be deemed to be an unfit person?

Mr. Byrne

I would like to join with my party colleague in expressing reservations about subsection (4) (a) as proposed by the Minister. I would argue in favour of The Workers' Party amendment. It is stated quite clearly that a health board are obliged to provide a written statement of suitability to a person who applies for registration. The only people the health board can refuse are those who have been convicted of an offence under this Bill or the 1964 Act. The Bill goes on to state: "or of any other offence that is such as to render the person unfit to carry on a nursing home". I disagree with the point made by the Minister, that The Workers' Party amendment would give too much power to the health board. As the Bill is drafted health boards have no power except to refuse the written statement of suitability in very limited areas, that is to those people who have already been convicted. I am sure there are a large number of people who might wish to run a nursing home.

Let us be honest, what the Bill is trying to cater for are regulations to control what is essentially a private profit making business. There is nothing to prevent all sorts of businessmen and businesswomen, companies, limited companies, banking institutions or whatever, getting involved in running nursing homes. A large number of people are eligible to apply to run nursing homes who may be known to the health boards and the formula in the Bill to process the applicants is not sufficiently strong. We must work on the basis that health boards are responsible bodies and, frankly, we would be entrusting a lot of authority to the health boards if we gave them the right to proceed the background of those applicants. In many cases in their opinion the applicant may be considered a suitable person, irrespective of whether they had a conviction. If our amendment which reads "or is in the opinion of the Board, for any other reason, a person unfit to carry on a nursing home" was accepted, a greater degree of trust would be placed in health boards.

The reasons listed which would give a health board authority to refuse the written statement of suitability are much too narrow. I would like to see a broader interpretation and greater trust in a health board to be able to use criteria other than the fact that somebody has already been convicted of an offence.

Dr. O'Hanlon

I sympathise with the point made by both Deputy Sherlock and Deputy Byrne. Certainly, we will have another look at it before Report Stage. It is a question of balance because we do not want to give too many powers to the health boards in terms of individual rights. It is very important that we protect the rights of the individual and that we would not give the health boards too much discretion as to the circumstances in which they would refuse to grant a licence to a individual because for some reason they found that reason unsuitable. It is important that we have safeguards not only to protect the people who would be using the nursing homes but also the individuals who apply for a licence. We will have a look at it before Report Stage to see if the wording can be tightened up in some way and if it can be improved.

Mr. Howlin

I welcome the Minister's intervention because I am a little concerned about Deputy Sherlock's amendment. In the event of any irregularities, complaints, or untoward behaviour in a nursing home we have the power under the section to monitor the nursing home. With that as a backdrop I am concerned about giving too sweeping a power to health boards to prevent individuals from establishing a nursing home in the first instance. Notwithstanding our positive view of most health boards and most health board officials, on occasion peculiar decisions have been made by individual health board officers in relation to applications. The core should be the protection of the right of the individual who is resident in the nursing home. If we were to start a vetting or monitoring process of every applicant or individual who wishes to establish a nursing home one would run into difficulties. I think the Minister's view on the matter and his approach is right.

Mr. Sherlock

I welcome the fact that the Minister recognises there is a situation to be looked at.

Amendment, by leave, withdrawn.

An Leas-Cheann Comhairle

We now move on to amendment No. 5 in the names of Deputies Yates and Garland. Amendment No. 58 is related. It is proposed to take amendment No. 5, to amendment No. 26 and amendment No. 58 together for discussion.

Mr. Yates

I move amendment No. 5, to amendment No. 26:

In the first line of subsection (6) (b) (i), to delete "it is of opinion" and substitute "it has reasonable cause to believe".

This matter was discussed the previous day and I do not see any point in having a long debate because there are other points we must reach between now and 6.30 p.m. On the last day this matter came down to an issue of legal interpretation as to which was the fairer or more effective set of words. Deputy Garland and I were of the view and the laymen in this House who did not have legal experience were of the view that the words "it is of opinion" left a broad range of possible opinions to those health board officials who would be operating this legislation. We are dealing with circumstances where people will be deregistered under the provisions of the new section 4 (6) (b). Therefore, to substitute the words, "it has reasonable cause to believe" that something was amiss or that something was wrong and that they had not satisfied the regulations, would be fairer than to say that someone in the health board was of the opinion, albeit casual, unsubstantiated or whatever. The Minister's response the previous day was that to meet what we were seeking, his words were preferable. The legal advice I have available to me does not suggest that. I would hope at this stage that the Minister, having had time to reflect on it, would consider rewording his amendment.

Mr. Garland

I have nothing to add to what Deputy Yates has said. It is also my amendment but he has spoken for me on this matter. I will not waste the time of the House repeating what he said.

Dr. O'Hanlon

It is a question of interpretation. My legal advice is that the words in the Bill are stronger and as such should not be amended. If we were to accept the amendment it would increase the discretionary power of the health boards. I doubt if this is what is intended in the amendment. The legal advice available to me is that the wording in the Bill is stronger.

Question, "That the words proposed to be deleted stand part of the amendment" put and declared lost.

Amendment declared lost.

Mr. Yates

I move amendment No. 6 to amendment No. 26:

In the fourth line of subsection (6) (b) (ii), to delete "an" and substitute "a serious".

This amendment was not discussed the previous day and I consider it important. Subsection (6) (b) (ii) deals with "the applicant or the registered proprietor, as the case may be, or the person in charge or, as the case may be, proposed to be in charge of the home has been convicted of an offence under this Act"— I have no problem with that —"or the Act of 1964"— I have no problem with that —"or of any other offence...". This could be very vague. One could argue that if someone had a parking or a speeding offence technically in the opinion of the health board personnel they would not be a fit person to run the nursing home. Any offence must relate to either the Act in question or be a serious offence that would render that person unfit to carry on a nursing home. We are all capable of committing offences, unwittingly or otherwise, but I feel the wording is too broad and needs to be tightened up as it could cause difficulties for people. The section needs to be re-worded.

Mr. Howlin

I strongly support the amendment. Surely it is the Minister's intention to prohibit those who are clearly unsuitable, such as those guilty of an offence in a nursing home or a crime of violence against individuals, from obtaining a licence. I do not think it is the Minister's intention that any offence would lead to disqualification and I would welcome his comments on his matter. This side of the House is strongly of the view that we should resist the inclusion of this subsection.

Mr. Garland

I wish to state that I support the amendment.

Dr. O'Hanlon

The parliamentary draftsman has advised that it is difficult to distinguish, in drafting legislation between serious and not so serious offences which might disqualify a person from being a registered proprietor or person in charge of a nursing home. The amendment I have proposed in the redrafted section 4 will delete the words "in the opinion of the board" and "unsuitable". This section, as amended, will encourage a board to reach an objective decision about a person's fitness as a nursing home proprietor or a person in charge. An objective decision must be made and must be justified on the basis of the facts. As a safeguard, an aggrieved person has a right of appeal to the District Court against an unreasonable decision of a health board.

The inclusion of the word "serious" could cause more problems than it would solve. We all know that the type of offence referred to in this section is very serious, such as murder, fraud or grievous bodily harm. The difficulty lies in the gradations of involvement a person may have in a crime and the type of sentence imposed. Most of the populace have not been convicted of any offence and it is only fittng that where the person proposing to run a nursing home has a conviction, the matter should be taken into account. I have no doubt that the health boards will act in a responsible manner and such offences as parking fines and other instances will not cause any problems.

Mr. Howlin

I am surprised the Minister has it as his intention that any conviction will be taken into account — this is what he stated — even though undue weight might not be put on it. I do not think it is either fair or reasonable that the most trivial of unrelated offences should be taken into account. Perhaps the amendment in the name of Deputy Yates does not meet the exact requirements of the situation but I think the Minister knows what Deputies on this side of the House are about. A person will have the right to appeal to the District Court but can one imagine someone who wishes to run a nursing home going to the District Court to vindicate that right and expecting to attract business thereafter having dragged his name in public through the District Court? I do not think that is a reasonable view to take.

On a previous amendment the Minister referred to the rights of an individual. We are now back discussing the rights of an individual in this regard and the Minister's proposal is far too draconian. If the Minister does not see his way to accepting the amendment, which does not meet all the fears of this side of the House, perhaps he would agree to look again at this section and dissolve its draconian nature somewhat and come back with a more suitable amendment on Report Stage. I appeal to him to do that and to re-think the proposal that each and any offence should be taken into account. That is far too strong a position to take on this issue.

Mr. Yates

I am fascinated by the Minister's response. In the first instance, his interpretation does not matter because this will be a matter for the CEO of a health board or a District Court judge to determine. I do not think the law should be so unclear on this matter. The Minister said that as far as he was concerned the type of offence referred to in this Bill is murder, fraud or grievous bodily harm. I ask him to indicate how he came to that assumption. If someone is up for not paying his television licence fee — even though the revenue from these licences could go anywhere by the end of the week — would this be considered a serious offence and preclude a person from registering? If someone, God forbid, had one too many to drink at a Christmas party and subsequently was taken off the road and breathalysed, would this be considered a serious offence? The health boards will have to act as Pontius Pilate in deciding on these matters. Perhaps the CEO in the North Western Health Board will take an entirely different view from the one adopted by the CEO in the Eastern Health Board and regard failure to have a licence for a dog as sufficient in deciding whether a person is a fit person.

Mr. Howlin

Solomon as opposed to Pontius Pilate.

Mr. Yates

This matter is open to any conjecture one wishes to put on it. I am not arguing that my amendment is the answer but my intention is obvious. If we are going to go beyond the scope of the offence listed in the related Acts on the administration of nursing homes we must clearly state what type of other offence we are talking about. If the Minister intends to restrict it to murder, fraud or grievous bodily harm, so be it, but that is not what the Bill says. We need to determine whether we are talking about drink driving or licences for dogs and televisions or whether we are talking about a serious offence. The Minister should get more legal advice in this matter and try to wrap it up so that the uncertainty is taken out.

An Leas-Cheann Comhairle

I gather at this stage that Deputy Yates is not enthusiastic about pressing the amendment.

Mr. Yates

That depends on whether the Minister will give further consideration to the matter.

Dr. O'Hanlon

I accept the point made by Deputy Yates but I think the type of offence referred to in the Bill is very clear. As I said, we have removed the words "in the opinion of the board" from the Bill and as a result have strengthened subsection (6) (b) (ii). The section states: "... any other offence that is such as to render the person unfit to carry on or, as the case may be, to be in charge of the home? I do not think there is any person who believes that a health board, even given the lack of uniformity Deputy Yates refers to, would decide that a person who failed to pay his television licence fee is unfit. It is quite clear that the offence they are guilty of must render them unfit to carry on or as the case may be to be in charge of a home. If we were to add in the word "serious" we would only compound the difficulty and one would have to decide what constitutes a serious offence. Members of this House may feel that a person convicted of certain offences should not be in charge of a home but these may not be considered serious in the legal sense. We will have another look at the wording of the section but I believe it is as strong as we can make it in legislation.

Mr. Yates

I do not want to labour the point but it is not a frivolous one but quite serious, and I will be retabling the amendment on Report Stage. I am withdrawing it here on the understanding that the Minister will come forward with a better amendment than my own.

Amendment, by leave, withdrawn.

Amendment No. 7 to amendment No. 26 not moved.

Mr. Howlin

I move amendment No. 8 to amendment No. 26:

In the second line of subsection (8) (a) (i), after "registration" to insert "reasonable".

The subsection reads that a health board may at the time of registration or subsequently attach to the registration conditions in relation to the carrying on of the nursing home concerned and such other means as it considers appropriate having regard to its functions under this Bill. My intention is to insert "reasonable"— they may attach reasonable conditions. It is self-evident that it would be unacceptable for anybody, health board or other, to impose conditions on a nursing home which would be unreasonable. The Minister should have no difficulty in accepting my simple amendment to ensure it is understood that it is the intention of the Oireachtas that conditions that would be attached to any such registration would be of a reasonable nature. That should be spelled out clearly in legislation rather than left to the discretion of health boards.

Mr. Yates

Perhaps we could take amendments Nos. 8 and 9 together. They are broadly on the same point.

An Leas-Cheann Comhairle

If that is the wish of the House we could do so. Is it agreed to take amendments Nos. 8 and 9 to amendment No. 26 together for discussion? Only No. 8 has been moved.

Mr. Yates

I appreciate that. I reiterate the point Deputy Howlin made that as it stands conditions can be set out in relation to any matter, the parking conditions, lighting conditions, anything at all, depending on how obnoxious or pedantic the officials might be. The point here is that we would have uniformity. We would know what this means. The purpose of legislation is to be precise, to put matters beyond doubt. There is no point in legislation that will create as many doubts as it resolves. To attach different conditions is an "open sesame" to anything that might be concerned with a nursing home and could cause many problems. That could include, for instance, conditions relating to a mortuary attached to the premises. We do not know what might follow from this. There is no one better than a programme manager to say to the unfortunate nursing home manager, "I can read you section 4 of the Act, Sir, which says that clearly I am entitled to put down whatever different conditions I like, whether you consider them reasonable or not. This is the law." Therefore, I suggest that we insert either "reasonable" or "directly relevant to the care of dependent persons". We all have the same objective in this House which is to protect elderly people while not exposing people to excessive bureaucracy. That is a balance we are trying to achieve. Therefore, either amendment No. 8 or amendment No. 9 or both should be accepted by the Minister.

Mr. Ferris

By the reasonable Minister.

Dr. O'Hanlon

I do not think it necessary to insert the word "reasonable". It is a statutory obligation on the health boards to behave in a reasonable manner.

Mr. Howlin

Why not spell it out?

Dr. O'Hanlon

It is there and they have got to behave in a reasonable manner.

Mr. Howlin

The Minister is not being reasonable.

Dr. O'Hanlon

I am being more than reasonable today.

Mr. Howlin

He has not accepted anything.

Dr. O'Hanlon

We have accepted a good deal today. We are very reasonable. I know the nursing homes are concerned about the implications of the conditions that may be attached, but any home that has a difficulty with a requirement can discuss it with the officials of the board. I believe that, as in the case of other legislation, the boards concerned are responsible for implementing the law as it relates to them. The boards are amenable to discussion with, for example, people setting up food outlets and having to comply with the hygiene regulations. The boards are reasonable in going out to talk to people to help find an agreed solution. I do not think it necessary to include the word "reasonable" in the Bill. I do not know what effect it would have legally, but it appears the wording is quite precise and Deputy Yates said it should be precise. I believe there is a statutory obligation on the boards to be reasonable at all times.

Mr. Ferris

Let me intervene to coax the Minister further on the question of reasonableness. If he cannot legislate in the way we want to legislate, then in laying down regulations as he will be required to do under the legislation will the Minister be very specific on how reasonably he wants these people to operate and will there be guidelines to be applied nationally? Otherwise we will have different interpretations of this section by different health boards and different officers. As will be seen from the debates we have had on the various sections, we are all the time worried about the different interpretations of different health board officers, programme managers etc. One of the ways to overcome that is to have a set of regulations to be agreed and published by the Minister which would be guidelines for the officers in interpreting the Bill.

Mr. Howlin

What the Minister has really said is, "If you do not like the judgment, have a discussion with the judge." I am beginning to get the impression that the Minister decided this afternoon to approach this Bill by simply not giving an inch to Opposition amendments no matter how constructive they are. Members on this side of the House today have approached the debate very constructively and reasonably. To refuse to add the word "reasonable" which he accepts should be in the Bill in concept, on the basis that it is understood already, is unreasonable. I am inclined to become unreasonable myself when all we get from the Minister are generalisations and no positive attempt to make this stage a real Committee Stage the health spokespersons here have worked on, by way of building a better Bill. It is important to put these two amendments into the Bill. They will allay the fears of those engaged in trying to run nursing homes. They will give clear indication as to what the Oireachtas means to health board officials who will apply these regulations. There should be no difficulty for the Minister in accepting the approach on this side of the house in these two amendments above all because they are so innocuous.

Mr. Yates

The Minister did not reply on amendment No. 9. He might take the opportunity because we cannot come back to it.

An Leas-Cheann Comhairle

We are discussing Nos. 8 and 9 together.

Mr. Yates

Yes, but the Minister did not refer to amendment No. 9.

Dr. O'Hanlon

I do not intend to accept this amendment. Subsection (8) (a) (i) provides that conditions attached by a health board to registration must be related to the operation, purpose and function of a nursing home. It provides that "A health board may — (i) at the time of the registration or subsequently attach to the registration conditions in relation to the carrying on of the nursing home concerned and such other matters as it considers appropriate having regard to its functions ...". Subsection (8) (a) (ii) simply allows for different conditions to be attached by health boards to the registration of different nursing homes as proposed if necessary.

Deputy Howlin has been here since we commenced at 3.45 p.m. and I have told the House regarding four different amendments proposed to this Bill that I would have a look at them before Report Stage. I would like to remind the House that I sat on those benches there for four years when a Labour Minister for Health stood here and not once in the four years did he accept any amendment. We have accepted amendments to this Bill from the Opposition the last day we were both here on Committee Stage. Not alone did the then Minister not accept an amendment, he did not even say he would look at what we were proposing. At least we stand on our record here.

(Interruptions.)

Mr. Byrne

There was a big majority in the House.

Dr. O'Hanlon

I agree with the suggestion made by Deputy Ferris in relation to this amendment of Deputy Yates. The regulations will be very precise and will cover the point made, but I am prepared in the code of practice I have referred to with 68 paragraphs and a number of subsections, to insert something to cover the points made in regard to the reasonableness of health boards.

An Leas-Cheann Comhairle

Is it reasonable of the Chair to assume there is nothing worthwhile left to be said on these two amendments?

Mr. Howlin

I am afraid so.

Amendment, by leave, withdrawn.

An Leas-Cheann Comhairle

How stands amendment No. 9?

Mr. Yates

I shall be seeking to resubmit it on Report Stage.

Amendment No. 9 to amendment No. 26 not moved.

Mr. Yates

I move amendment No. 10 to amendment No. 26:

In the last line of subsection (8) (b), after "concerned." to insert "Any such conditions attaching to a licence shall have due regard to the financial cost involved and their practical effect.".

This also relates to conditions attaching to the licence. Again we are trying to achieve some form of balance. I came across one case where the health board and the director of community care were trying to get the owner of a private nursing home to extend the property, which was a semi-detached building. The only way the health board wanted him to expand was by acquiring the adjoining semi-detached building, not by any other form of extension. Bureaucrats and technocrats by their nature do not have any regard to financial considerations and often solutions which would have the same net effect are not acceptable to officials. Some regard should be paid to financial cost. Of course certain developments must be carried out, regardless of cost, but some element of awareness should be brought into health board thinking. Perhaps this would be better dealt with in the code of practice and if the Minister will undertake to include some reference to it in the code or practice I will reconsider this amendment.

Dr. O'Hanlon

I am agreeable to that. It comes under the term "reasonableness" in the earlier arrangement. I will include something in the code of practice to take account of the point made by Deputy Yates.

Amendment, by leave, withdrawn.

Mr. Yates

I move amendment No. 11 to amendment No. 26:

In the fourth line of subsection (10) (a), to delete "it considers necessary" and substitute "is relevant to the application".

This deals with the information a health board may request from an applicant in the process of registration. It is suggested that the information that can be requested is any information they consider necessary. I do not know what that means. It could mean any information. It could relate to past financial history, personal family details, the persons who might be living in the house and all sorts of private matters. It would be more prudent to substitute the words "relevant to the application", so that matters extraneous to the application would not be brought into common internal health board memoranda.

Dr. O'Hanlon

I do not intend to accept this amendment. The health board may ask an applicant for registration or a registered proprietor for information for the purpose of their function under the Act. I do not accept that the words "considers necessary" should be deleted. The section requires the health board to act in an objective manner by requesting information related to their function under the Bill only. Only information relevant to the running and management of the nursing home could be requested.

Mr. Yates

That last sentence is an assertion and an assumption; it is not a fact. As things stand, the health board can consider any information necessary. This is important in the straightforward context of protecting people in nursing homes. I am sorry the Minister is so rigid in this respect. These are not major points but it is an improvement in wording which would achieve a better balance and fair play. We are trying to balance good administration and the rights of the individual. I do not believe it is fair to give a blank cheque by specifying any information which an official considers fair. We do not have that in other codes. I regret the Minister's narrow view.

An Leas-Cheann Comhairle

Is Deputy Yates happy to live with his regrets?

Mr. Yates

In view of the time constraints, yes.

Amendment, by leave, withdrawn.

An Leas-Cheann Comhairle

Amendment No. 12 in the name of Deputy Yates. Amendment No. 12a is an alternative. It is proposed to take amendments Nos. 12 and 12a together for discussion. Is that satisfactory? Agreed.

Mr. Yates

I move amendment No. 12 to amendment No. 26:

To delete subsection (11).

Dr. O'Hanlon

My amendment No. 12a is designed to clarify the section. It clearly states that the health board are proposing to refuse to register the nursing home.

Mr. Yates

I very much support what the Minister is doing. According to the Bill as drafted it had to be done retrospectively. I withdraw my opposition to subsection (11) on that basis.

Amendment, by leave, withdrawn.

Dr. O'Hanlon

I move amendment No. 12a to amendment No. 26:

In the sixth line of subsection (11), to delete "of its refusal" and substitute "that it proposes to refuse".

Amendment agreed to.

Mr. Yates

I move amendment No. 13 to amendment No. 26:

To delete subsection (12).

The Private Nursing Homes' Association are opposed to this, with particular reference to subsection (12) (b). Perhaps the Minister would outline what is intended in subsection (12).

Dr. O'Hanlon

I am sympathetic to the intention of this amendment which is to facilitate the transfer of nursing homes. However, to delete subsection (12) would not be satisfactory. The section provides for the re-registration of nursing homes in a number of circumstances, such as the death of a registered proprietor or the transfer of ownership of a nursing home. I have already proposed an amendment to section 4 (12) which would remove the reservations which nursing home owners had about the absence from the Bill of a method of prior clearance by a health board for a prospective buyer of a nursing home as a suitable registered proprietor. As a result of my amendment the prospective owner will be able to apply for a declaration in advance of the purchase of the nursing home that he is a suitable person to carry on a nursing home.

Mr. Howlin

I think it would be appropriate to discuss amendment No. 14 in this context.

An Leas-Cheann Comhairle

Tempus fugit.

Mr. Howlin

There is fear in relation to the death of a proprietor and the taking over by a new owner. The will would have to go through probate and there might be some difficulty in establishing clear ownership. To allow only two weeks before registration would lapse is very limited. We have not time now to discuss this issue but I would ask the Minister before Report Stage to look at the issue of death and transfer of ownership, together with the implications.

Dr. O'Hanlon

I will look at it. We all want to achieve the same balance. Where nobody is in command I believe it is very important in the interests of people in the nursing home that a short period of time should be allowed. We will look at the points raised.

An Leas-Cheann Comhairle

As it is now 6.30 p.m., I am required to put the following question in accordance with an order of the Dáil of this day: "That the amendment as amended proposing the insertion of a new section before section 4 is hereby agreed to and that section 4 is hereby deleted."

Question put and agreed to.

Sitting suspended at 6.30 p.m. and resumed at 7 p.m.

SECTION 5.

An Leas-Cheann Comhairle

In the absence of Deputy Yates, I call on Deputy Howlin to move amendment No. 1 to amendment No. 28.

Mr. Howlin

I move amendment No. 1 to amendment No. 28:

In the third line, to delete "the District Court" and substitute "the Minister for Health".

We discussed this issue on the last occasion. This amendment proposes the removal of the appeals mechanism from the District Court and giving it to the Minister. The notion put forward originally by Deputy Yates was that the District Court was not a suitable place for the hearing of appeals — it is a judicial setting and primarily one where matters of a criminal nature are adjudicated upon. It would be more appropriate that an appeal against registration, which would be a matter of deciding the suitability of an applicant to run a nursing home, would be best kept within the health field rather than going into a judicial setting. The argument put forward — Deputy Yates will be able to elaborate on this — was that the Minister would be a far more appropriate authority to deal with such appeals; it should be taken out of the judicial sphere, the Minister should be able to make an adjudication on health grounds alone and not, so to speak, throw the whole issue into a queue with criminal cases, motoring offences, etc., and the expertise should lie primarily in the Minister's office to make a proper and fair adjudication on the matter on the grounds of health.

Mr. Yates

I apologise for my delay in reappearing and thank my colleague, Deputy Howlin, for moving the amendment in my name. As Deputy Howlin rightly said, this amendment proposes to give the Minister for Health a role in the appeals process. The appeals process should be looked at in the context of trying to involve the minimum expense on a person and to have uniformity. The argument that there may be a lack of uniformity between health boards could apply also to District Courts. Therefore, by giving the Minister a direct role in the appeals process, he could have an overseeing role in the actual operation of the Act without being unduly involved. I look forward in anticipation to the Ministers acceptance of this amendment.

Mr. Sherlock

I support amendment No. 1 to amendment No. 28. I agree that it is a matter which should more appropriately be dealt with by the Minister for Health and his Department rather than by the District Court.

Dr. O'Hanlon

It is more appropriate that the appeals by nursing home proprietors should be made to the District Court rather than to the Minister. The District Court is easily accessible and offers a speedy and inexpensive remedy in the event of a difference of opinion between a health board and a nursing home proprietor. The knowledge that a nursing home proprietor may appeal a health decision to a District Court will impose a very strict discipline on the manner in which the health board reach their decision. The health boards will have to justify their decisions on objective grounds and, if necessary, demonstrate their objectivity in court. I feel strongly that the advantages of this system will outweigh any reservations which nursing home owners may have about appeals being heard in the District Court.

Mr. Yates

I am disappointed at the Minister's reply. I do not know if the Minister has ever appeared in the District Court in a personal capacity. I have never been in a District Court but I was in a Circuit Court once in relation to a local authority case — it related to water extraction in County Carlow. The majority of ordinary people are afraid of going to court. They do not want to be lined up with criminals or to be put in the dock, as it were. On top of that there is the question of expenses. Once a case has to be heard in a District Court the average person will have to employ a solicitor. Such people incur substantial expenses just because they are not familiar with the courts.

District Courts are a lottery — some District Court judges are eccentric while others are normal in all respects. Litigation can involve a great deal of delay. I know from experience that it can take up to two years for a case to be heard in the High Court. I know the same delays do not exist in regard to the Circuit Court and, to a lesser extent, the District Court. However, if a District Court justice is not available — this issue was raised on numerous occasions by the select committee on the Child Care Bill — or the court is closed for the month of August, what will be the time limit in regard to appeals and what way will they be affected? In order to reduce expense, bring more certainty to the issue and to help people who do not like going to court because it is not a criminal matter I ask the Minister to reconsider this issue on Report Stage. It is not a major point but in its operation it would give the Department far greater control. I do not believe it would become politicised if it was handled by the Minister. I have confidence that it would be handled fairly by the Department. I would ask the Minister to reconsider it so that we can go on to deal with other sections.

Mr. Howlin

I would like to raise one or two other matters in relation to this amendment. Deputy Yates spoke about our discussions in the Child Care Committee. One of the things we spoke about at some length was the competence of the District Court. Quite clearly in adjudicating on matters like this a certain competence is required that is not necessarily a judical competence. We felt that there are areas which should be the preserve of those who are expert in them and who have some training and background in them. This is one area which would be best dealt with by the Minister's own office, by the staff who drafted this Bill, the people who would be charged with over-viewing the implementation of this legislation around the country. There are a variety of District Court justices who would not have any particular training in this area, making arbitrary judgments. I do not think that is necessarily the best way of going about it.

Deputy Yates referred to the fear people have of court cases. On a previous amendment the Minister said that the majority of people in this country have never been convicted of an offence or indicted. That is true, thank God. In fact I would say the vast majority of people have never been inside a court and many would be discouraged by the very notion of going into court. On a previous amendment I said that when one has made an application and been refused the very last thing one wants is to have the matter decided in open court because by virtue of the whole proceedings one is a defendant when one appears in the District Court and conclusions can be drawn from that. Many people would be quite reluctant to take that option. For all those reasons, I think the amendment put forward by Deputy Yates is an improvement on the procedure envisaged by the Minister. Perhaps the Minister would think again about it.

Dr. O'Hanlon

My own view is that the more appropriate way is through the District Court. First, we are talking about a very tiny number of cases in which there would be a difference of opinion. If one looks at the performance of the health boards over the last 20 years in areas where they issue licences of one kind or another it is very rarely that an applicant took an action against a decision of the health board on the basis that they had been unfair in their deliberations.

There are a number of points. Certainly we want to be fair to the nursing home owners and at the same time we have an obligation to the people who use the nursing homes. I take the point made about the fear of the District Court. I have had plenty of experience of it in my professional capacity in general practice and I was a regular visitor there.

Mr. Yates

Was the Minister in and out of them the whole time?

Dr. O'Hanlon

I was in and out of them in a professional capacity in the old days when general practitioners had to go into court and give evidence of observations of people who were alleged to have been drunk in charge of bicycles, motor cars and all sorts of things, so I know the inside of them very well. I take the point that most people have a fear of going in there. Nobody, however, has any greater fear than the health boards who will be questioned on the objectivity they used in making a decision. Against that background, I believe that it will ensure that the health boards will take their obligation in regard to objectivity very seriously. Again, it is not something that will arise very often. It would arise in a very tiny minority of cases. I think the health boards will be very objective in their decision making. I believe this is the more appropriate route to go both in the interests of the people who use the nursing homes and in the interests of the proprietors to ensure that the greatest objectivity will be adhered to by the health boards.

Mr. Yates

Sections 5 and 6 are being taken within this hour. Section 6 deals with all the regulations for standards in nursing homes. To facilitate progress I will withdraw the amendment but I may wish to resubmit it on Report Stage because I feel quite strongly about it.

Dr. O'Hanlon

When an appeal is pending the home will still be treated as registered, so if there is a delay in the District Court sitting the home would still be registered.

Mr. Yates

That actually is number two.

Amendment, by leave, withdrawn.

Mr. Yates

I move amendment No. 2 to amendment No. 28:

In the eighth line, to delete "21 days" and substitute "one clear month".

I would like the Minister to clarify this point. Someone would appeal within 21 days. If the District Court hearing is not available within 21 days what is the position? Does the appeal lapse? Does it have to be registered with the court clerk or what is the procedure? I feel an extra week or so should be allowed and one clear month would be prudent. We allow this length for An Bord Pleanála hearings and things like that.

Mr. Garland

I would just like to say that I support Deputy Yates's amendment.

Dr. O'Hanlon

I will look at that in the light of what Deputy Yates says and come back on Report Stage. My own understanding is that 21 days is a reasonable period to make an appeal and once the appeal is lodged it does not mean that the appeal has to be heard or that the court has to hear the appeal. If we were changing it upwards I would perfer to have it based on a number of days rather than a month because a month is not as definitive. If it is necessary to increase it to 28 days we will come back to it on Report Stage.

Amendment, by leave, withdrawn.

Dr. O'Hanlon

I move amendment No. 28:

In page 6, lines 33 to 43, to delete subsection (1) and substitute the following subsection:

"(1) A person, being the registered proprietor or, as the case may be, the person intending to be the registered proprietor, of a nursing home, may appeal to the District Court against a decision of a health board to refuse to register the home, to refuse to give, or to revoke, a declaration under section 4 (4), to remove the home from the register or to attach a condition, or to amend or revoke a condition attached, to the registration of the home and such an appeal shall be brought within 21 days of the receipt by the person of the notification of the decision under section 4 and that court may, as it thinks proper, confirm the decision or direct the health board, as may be appropriate, to register, or to restore the registration of, the home, to give, or to withdraw the revocation of, a declaration under section 4 (4)*, to withdraw the condition or the amendment to or revocation of a condition, to attach a specified condition to the registration or to make a specified amendment to a condition of the registration.".

Amendment agreed to.

Dr. O'Hanlon

I move amendment No. 29:

In page 6, lines 48 to 51, to delete subsection (3) and substitute the following:

"(3) A decision of the District Court under this section on a question of fact shall be final.".

This amendment is not materially different from what was in the original draft of the Bill. Its purpose is to clarify the role of the District Court as being confined to matters of fact. Appeal on a point of law may be taken to the Circuit Court or the High Court.

Mr. Sherlock

On a point of information, why does the Minister find it necessary to put in the word "fact"? The District Court deals with facts.

Dr. O'Hanlon

I suppose it is a drafting recommendation. As the Deputy rightly points out, the District Court deals with fact and if it is a matter of a point of law the appeal can be to a higher court. It is a recommendation of the draftsmen that it should go in in that form.

Amendment agreed to.

Dr. O'Hanlon

I move amendment No. 30:

In page 7, lines 1 to 11, to delete subsection (4) and substitute the following:

"(4) Where a notification of a decision specified in subsection (1) (other than a decision to refuse to register a nursing home which was not registered or deemed to be registered at the time of the relevant application for registration) is given under section 4, then—

(a) during such period from such notification (not being less than 21 days) as the health board concerned considers reasonable and specifies in the notification, and

(b) if an appeal against the decision is brought under this section, during—

(i) the period from the end of the period aforesaid until the determination or withdrawal of the appeal or any appeal therefrom to the Circuit Court under subsection (3) or any appeal from the determination of that court, and

(ii) such further period (if any) as the Court concerned considers reasonable and specifies in its decision,

the nursing home concerned shall—

(I) be treated for the purposes of section 3 as if the appeal had been upheld, and

(II) if the appeal was against a decision of the health board to refuse an application under paragraph (a) of section 4 (12)* for registration, be treated as if the registration had attached to it any conditions attached to the relevant registration that had ceased by virtue of subparagraph (i) of the said paragraph (a).".

This is the substitute amendment to amendment No. 30 that was tabled. Amendment No. 30 deals with section 5 appeals and the substitute amendment rectifies a problem in the Bill drawn to my attention by the National Council for the Elderly. The council pointed out that when a nursing home was refused registration the Bill did not provide for a period of grace for health boards and relatives to make alternative arrangements for patients. The substitute amendment provides that a district court which turns down an appeal by a nursing home proprietor against a health board refusal to renew registration may specify a period in which the home can continue to operate. This is to ensure that the health board and the relatives can make alternative arrangements for patients in the nursing home.

Mr. Yates

I move amendment No. 1 to amendment No. 30:

In the second line of paragraph (a) of subsection (4), to delete "21 days" and substitute "one clear month".

I have no difficulty with the substance of the Minister's amendment but I suggest the substitution of one clear month for 21 days. The points I raised in connection with earlier amendments apply to this one.

Dr. O'Hanlon

It will be a matter for the District Court to decide the time and I have no doubt that will depend on the size of the nursing home and where a patient is to be placed. My interpretation is that the Deputy is asking that the period from such notification would not be less than 21 days. Under the terms of my amendment more than 21 days would have to be allowed for the movement of patients. I do not have any hangup about the period and I will have a look at the issue between now and Report Stage. The difficulty I see about inserting 28 days is that we are talking about a home that has not been, for one reason or another, licensed. In other words, it is not a suitable place for elderly people. If we accept the Deputy's amendment would we be keeping the people in such a home one week longer? We will look at this issue between now and Report Stage.

Mr. Howlin

I wonder if there is any need to put the words "not being less than 21 days" in brackets. Is there any good reason for specifying a period?

Dr. O'Hanlon

We will look at this between now and Report Stage and try to come forward with a reasonable period. We do not want to keep people in a home that is not suitable for one reason or another.

Amendment, by leave, withdrawn.

Amendment No. 30 agreed to.

Section 5, as amended, agreed to.

SECTION 6.

Mr. Sherlock

I move amendment No. 31:

In page 7, subsection (1), line 15, to delete "may" and substitute "shall".

Subsection 1 states:

(1) The Minister may, for the purpose of ensuring proper standards in relation to nursing homes, including adequate and suitable accommodation, food and care for dependent persons while being maintained in nursing homes, and the proper conduct of nursing homes, make such regulations as he thinks appropriate in relation to nursing homes.

The amendment places a lot of responsibility on the Minister. A high standard will be required if we adopt it. There is a good case for substituting the word "shall" for the word "may". It should be obligatory on nursing homes to provide proper standards.

Acting Chairman (Mr. M. Barrett)

The same principle applies to amendments Nos. 31, 34 and 70 and, by agreement, the House will discuss them together. Agreed.

Mr. Yates

I agree with Deputy Sherlock's amendment. If we are determined to protect the clients of nursing homes there should be no difficulty about accepting the amendment because it does not involve a charge on the Exchequer. It is the Minister's intention to protect those people and, therefore, he should stipulate that the Minister shall make such regulations as he thinks appropriate. It is vital that the word "shall" is included.

Mr. Howlin

Section 6 is important in that it deals with the regulations in relation to standards in nursing homes. The Minister has indicated that he will draw up the regulations and I have no doubt that they will cover the issues listed by him because the team involved in drafting the Bill will be responsible for the preparation of the regulation. There should be an imperative put into the section.

Dr. O'Hanlon

The word "may" is used in all similar legislation. It was used in the last legislation on nursing homes. Indeed, it was used in the regulations on nursing homes introduced in 1986. Draft regulations, to be implemented on the passage of the Bill through the Houses of the Oireachtas, have been drawn up. They have already been circulated with a request for comments to be in before the end of this month. The draftsman has worded it in that way and it is not necessary to include the word "shall". The present wording is used in legislation of this nature and is acceptable.

Mr. Sherlock

On amendment No. 34 there are lengthy subsections — from (a) to (k) in section 6 prescribing requirements. It is not good enough for the Minister to say that "may" is the term normally used in such legislation and it is not sufficient argument for rejecting the simple amendment which proposes to delete "may" and to substitute "shall". This legislation is of vital importance in relation to the standards and conditions in such homes. I appeal to the Minister to accept the amendment.

Dr. O'Hanlon

I have a difficulty with the word "shall" in regard to amendment No. 34 but I will be happy to look at amendment No. 31 before Report Stage. The word "shall" might put an obligation on health boards which might not be necessary. It could mean that they might have to provide training for members of staff who could already be trained. We will have to look at this very carefully in regard to both amendments but, as I said, if it was included in amendment No. 34 it might impose a cost factor on a health board. If we inserted "shall" in amendment No. 31 it would get over the concern raised by the Deputy — I do not believe there is a difficulty — and I am satisfied that the legislation and regulations governing nursing homes are quite satisfactory. Indeed, the former Deputy Desmond, when he was Minister for Health, introduced very good regulations in 1986.

Mr. Howlin

He was a good man.

Dr. O'Hanlon

There will be no lack of commitment to ensure that the necessary regulations are brought forward. I presume there is a very good reason for drafting legislation in this way but I do not want to impose unnecessary obligations on health boards, especially in relation to finance which might be better spent in some other way.

Mr. Howlin

There is no argument about the fact that the Minister will be introducing these regulations. However, I am alarmed about the areas covered under the subsection although I know he will do what is required under subsection (1). The Minister said it might be too onerous a burden to draw up regulations in regard to every aspect but I understand that the same people who drafted the legislation will draw up the regulations. They did not put this into the Bill to take up space, they did so — and we agree — because they are areas which should be encompassed by regulations. If we are enacting them because we feel they should be there, then regulations should be drawn up to make them enforceable in regard to each nursing home. I am at a loss to know why "may" could not be "shall" in each case. However, I do not have any great fears about it and I am sure the Minister will not disillusion me in that regard. I hope he will copperfasten my confidence in him by his actions.

Mr. Sherlock

I understood the Minister's comments in regard to amendment No. 31. However, I appeal to him to look again at amendment No. 34. I do not want to refer to any particular requirement under the section but (d) prescribes requirements in relation to accommodation, including the amount of space in bedrooms and wards, washing facilities and sanitary conveniences provided in nursing homes. Is the Minister saying it is not mandatory to say that such conditions are complied with? That is why we need the word "shall".

Dr. O'Hanlon

The regulations are already in place and further regulations in regard to this Bill have already been drafted and circulated. They lay down fairly strict conditions in terms of the physical standard of the building and indeed of the staffing. I am satisfied that the word "may" is appropriate because, as I said already, successive Ministers have ensured that regulations appropriate to the need at the time were in place. I am prepared to accept amendment No. 31 if Deputy Sherlock withdraws amendment No. 34, although we will look at that amendment before Report Stage. I do not want to lock the health boards into something that may be meaningless. If we accept the second amendment now we would be putting an obligation on the boards to train people who might already be trained and who would not be available to do anything else during that period. We will include the word "shall" in amendment No. 31 and we will look at amendment No. 34 before Report Stage.

Amendment agreed to.

Mr. Howlin

I move amendment No. 32:

In page 7, subsection (1), line 15, after "may", to insert "following consultation with the relevant caring and professional organisations,".

This amendment is of significance but not absolutely crucial. What I am requesting is that when the Minister is drawing up the regulations he will do so in consultation with the relevant caring and professional organisations. If the Minister has difficulty in defining that, if that is too loose a term for him to accept, I will accept his assurance that he will table a tighter definition on Report Stage, perhaps reading: "following consultation with the relevant caring and professional organisations as he sees fit". I want to ensure that the people with the professional knowledge, used to dealing in the area — whether it be nutrition, basic lighting, people who have dealt with the elderly, who are geriatricians — would be consulted in drawing up the relevant regulations so that we would have the best regulations, in the light of the most up-to-date knowledge available, for the comfort and caring of the elderly. That is the objective of my amendment.

Mr. Yates

My amendment No. 33 is almost identical with amendment No. 32. From what the Minister has said it would appear he has consulted, by way of inviting submissions and so on. Therefore, he should not have any difficulty with the substance of these two amendments. We should endeavour to reach a consensus. It is not that, at the end of the day, the Minister would automatically accept the view of these organisations but that they would at least afford him the courtesy of engaging in some consultation with him. I would contend that the word "may" expresses it no more strongly than it should be in this instance; not that he "shall" consult but that he "may" consult. For those reasons I would ask the Minister to accept amendment No. 32 or No. 33.

Dr. O'Hanlon

I do not propose to accept the amendment because it is unnecessary in that we have already circulated the draft regulations to be implemented following the enactment of this Bill. We have been in consultation with the health boards and with the Irish Private Nursing Homes' Association in their preparation. Indeed other interested parties have been sent copies of the draft nursing home and boarding-out regulations. If there are other groups Deputies feel should be consulted, if they will inform us of them we will certainly ascertain what contribution they might make to these regulations. We will be generous in such consultation. Like everybody else, we want to draw up the best possible regulations in the the interests of all people who will be seeking access to nursing homes. However, we have already consulted a number of interested parties in relation to the provisions of the Bill, as they stand.

Mr. Howlin

In the light of what the Minister says, I will withdraw amendment No. 32.

Amendment, by leave, withdrawn.

Amendments Nos. 33 and 34 not moved.

Mr. Sherlock

I move amendment No. 35:

In page 7, subsection (2), between lines 25 and 26, to insert the following paragraph:

"(b) prescribe requirements as to the maximum fees which may be charged for the care of dependent persons while being maintained in a nursing home,".

It is reasonable to include a provision, that there be a maximum fee which may be charged. Otherwise the question of fees would be left quite open and could lead to abuse.

Dr. O'Hanlon

I do not think it would be appropriate to prescribe fees which a private nursing home, or for that matter any private business, might charge. The market is and will be the regulator of nursing home fees. There is no limit to the number of nursing homes which may be registered. Therefore, no monopoly will arise in respect of the nursing homes which are in business. The amendment is unnecessary and might well be detrimental to the future of nursing home care in this country. Therefore, I do not propose to accept it.

Mr. Yates

This is an important subject. One view of this Bill, is that its provisions will create a certain exclusivity among certain types of nursing homes that will come into being only after the enactment of the Bill. Such eventuality should be avoided. I do not believe it is right to legislate in this area. That being said, the Department of Health should take an active interest in monitoring fees charged by nursing homes in the same way as, say, the VHI would take an active interest in fees being charged by consultants, general practitioners or whoever. There is an element of negotiation involved, indeed an element of cost control, where sanction is required. I would not like to see members of the public being ripped off by nursing homes. We must remember we are dealing with a very vulnerable sector of the community, perhaps people who will have adopted a nursing home as their second home, having sold their residence. It is important that some mechanism — other than legislation — be put in place; perhaps comprising part of the consultation there should be guidelines for levels of fees. I have in mind particularly medical card holders whose relatives may be at their wits end trying to gain access to residential care for them where such is required. Those people should be afforded some protection.

The market is a regulator but there will be certain circumstances in which the market, as a regulator, will not apply. For example, there might be only one nursing home located in a rural area and somebody who might want to be located near their relatives could not travel, say, to the other end of County Cork to a nursing home there.

Perhaps in the regulations, rather than in the legislation, the Minister might endeavour to introduce some element of cost consciousness so that there would be no question of there being current affairs television programmes about nursing homes and their cost.

Mr. Howlin

I, too, am anxious about the level of fees that may be charged because there is not a comprehensive spread of nursing homes countrywide. I have less faith than Deputy Yates has in the market serving as a regulator or being a regulatory force.

Obviously we are talking primarily about commercial institutions, not State-owned or controlled institutions, in respect of which all we are endeavouring to do is lay down a code of practice or standards to ensure that people would be reasonably comfortable in nursing homes. Has the Minister any plans to monitor the fees charged by different nursing homes so that health boards would be aware of the level of fees being charged within their areas — what would be the norm, what would be extraordinarily high or low. Then we would have some reference points in ascertaining what are the real costs, what is good value and what is not. Then, in the future, we might ascertain whether amending legislation is required whereas if such data is not available we would be at a distinct disadvantage. I would ask the Minister to consider requiring health boards to ensure they are aware of the level of fees being charged by different nursing homes, that part of the submissions would be the requirements that such data be provided to health boards so that we would know the spread of fees obtaining at any given time.

Dr. O'Hanlon

Certainly, the Department would be interested in the level of fees charged. The first point I want to make is that I do not think it should be included in legislation. Nonetheless, I agree with the sentiments expressed by Deputies Yates and Howlin.

In the next section there is a provision that the Minister may make regulations to prescribe the amounts to be paid by health boards by way of subvention. Obviously, in association with that requirement, the health boards would monitor charges in each of the nursing homes in their areas. Therefore, fees will be monitored and that information will be available, but whatever mechanism is used I would prefer that we would not write it into the legislation.

Mr. Sherlock

If the Minister states that it is desirable — although he did not use the word desirable — to have uniformity, how does he propose to enforce it? Did the Minister say that it could be written into the legislation? Perhaps I missed that point?

I have formed my views from examples I have seen in my own division — that is a very wide area — and there is a vast difference in the charges between one place and the other. In circumstances where it is urgent for families to have their relatives accommodated in a nursing home, it is necessary in some cases that I am aware of for people to pool their resources. This does not last for very long and it applies mainly where people are waiting to be accommodated in a health board institution. I feel it is necessary that there be a maximum charge and I ask the Minister to reconsider the matter.

Dr. O'Hanlon

First, it would not be appropriate that the Minister should write into legislation the fees that a private institution should charge for services. That is one part of the issue. Second, the health boards will be in a position, depending on the circumstances, to subvent patients who are in nursing homes, having regard to the patient's own means and the degree of disability. Against that background, the health boards will be monitoring the charges in private nursing homes where subvented patients are placed and they would be aware of what is going on. In my view the marketplace will ensure the fees are kept at a reasonable level. However, that information will be available.

Amendment, by leave, withdrawn.

Acting Chairman

Amendment No. 36 is in the name of Deputy Sherlock. Amendment No. 44 is related and amendment No. 46 is an alternative so we can discuss them together by agreement. Is that agreed? Agreed.

Mr. Sherlock

I move amendment No. 36:

In page 7, subsection (2), between lines 25 and 26, to insert the following paragraph:

"(c) prescribe requirements as to the recreational and therapeutic facilities provided in nursing homes,".

I am very confident of getting agreement on this amendment. In amendment No. 36 I am seeking to prescribe requirements for the recreational and therapeutic facilities provided in nursing homes. People may require recreational facilities. One cannot say that all the conditions in a nursing home are all right when the bed, the sanitary facilities, the dining facilities and so forth are satisfactory because more than that is required. This amendment is seeking that provision be made for recreational and therapeutic facilities.

Mr. Garland

Amendment No. 46 is in my name, so is it in order for me to speak now?

Acting Chairman

I have also called Deputy Yates's amendment No. 44, so I will call Deputy Yates and I will call you after that.

Mr. Yates

On a point of order, Sir, if we are to conclude section 6 in four minutes is it the position that unless I move amendments Nos. 39, 42, 43 and 45 they cannot be submitted on Report Stage, or can they be reported if they are not debated?

Acting Chairman

They can be resubmitted.

Mr. Yates

In amendment No. 44 I have tried to outline some of the facilities that are important to elderly people such as chiropody, physiotherapy, dental and ophthalmic care. I am not saying that the nursing home should provide these services but they should have an input by linking in with health board services. These services greatly affect the quality of life of someone who is elderly and dependent. I firmly believe that a great many of the amendments tabled to section 6 — although we will not get time to debate them — are very important and I ask the Minister and his officials to give particular consideration to them. I will not be able to move amendment No. 45 on brochures. This amendment also includes reference to the price etc. I know I am out of order, Sir, but it is very important.

Section 6 as it stands is not comprehensive enough. If we are drawing up regulations, now is the time to specify the legal bones and framework of them. What is in the section is all right but there are substantial gaps.

On amendment No. 37, which we will not reach, I believe that insurance cover for injury to the person is not sufficient but the person's belongings should also be covered. I know I am strictly out of order but I would ask that this whole section be given a great deal more study.

Mr. Garland

I will be brief as I dealt with this matter at some length on Second Stage. Old people need some form of recreation or stimulation to function properly. They are no different in that respect from other people. I would like to see a section that would include provision for the recreational needs of patients such as day rooms with games, newspapers and regularly organised social functions. I hope this amendment might suffice.

Dr. O'Hanlon

I do not think these amendments are necessary, indeed the existing 1985 regulations already require nursing home owners to provide facilities for the occupation and recreation of patients and suitable and sufficient equipment having regard to the dependency of the persons maintained in the nursing home. What is important is that in the new draft regulations we go a lot further than that because proprietors will be obliged to provide opportunities for patients to participate in activities appropriate to their interests or capacity and exercise choice to the extent that such freedom does not infringe on the rights of other patients; and also to provide information concerning current affairs, local matters, voluntary groups and community resources and events. I believe that the points raised by Deputies Garland and Howlin are adequately covered in the draft regulations. On the point raised by Deputy Yates I believe we could include it in the code of practice but if we write it into the Bill we may be defeating the purpose that Deputy Yates wants to achieve. We want to allow for flexibility in meeting future demands and it might be better, therefore, to have it in the code of practice.

Mr. Yates

Would it be in order, Sir, to allow some discussion on section 6 for five minutes?

Acting Chairman

I am afraid that cannot be allowed because the order was made today.

Mr. Yates

Do I take it that all amendments up to amendment No. 48 will be taken now? Is that the position?

Acting Chairman

That is the position.

Mr. Yates

I very much regret that. I ask the Minister and his officials to give detailed consideration to amendments Nos. 36 to 48 because I am not satisfied that they have been given such consideration. They deal with everything from the manner of inspections, the services that must be provided, written and oral notice, and I certainly intend to resubmit them for Report Stage

Mr. Howlin

There is a number of important amendments to this section and I hope the Minister will take some of them on board. Some are of a very simple technical nature — for example, the right of patients to have interviews in private — and are very reasonable. I am sure the Minister, on reflection, would like to take these amendments on board. I am sorry we have not had time to deal with them.

Dr. O'Hanlon

We will consider them before Report Stage.

Question, "That the amendments set down by the Minister for Health to section 6 be hereby made and that section 6, as amended, be agreed to", put and agreed to.

SECTION 7.

Mr. Yates

I move amendment No. 49:

In page 9, subsection (1), line 8, before ", the health board" to insert "which shall be completed within 30 days of receipt of an application".

This is the most controversial section of the Bill so far as I am concerned. It deals with the question of subventions. We will be calling more than a voice vote on this because I am totally unhappy about the way health boards have treated the whole question of subventions. It varies from health board to health board. Some give no subvention and the Eastern Health Board, who are the most generous, were in a stop-go situation last year. "Morning Ireland" dealt with the matter on several days in a row.

This amendment deals with the period of processing of a claim for a subvention. It is not unusual for some months to pass before a decision is made in such cases. I will quote from a letter of 22 January 1990 from a nursing home, which will give some idea of the position. It states:

The reason for this is best explained by quoting an example (one of very many) of an old age pensioner in this home whose application for a subvention was made in May 1989 and who is still awaiting a decision from the Eastern Health Board. This lady's total income (including old age pension) is £89 a week and she owns no capital or property. Such abuse of power can only be avoided if the new legislation makes it mandatory for the health board to take decisions within a specified period of time.

If the Minister decides to reduce the level of State geriatric care, if there are fewer county homes, welfare homes and health board geriatric institutions — they are being closed all over the country — it is unacceptable that people should have to go to private nursing homes and be treated in a humiliating fashion. This is not only a case of bureaucracy. People are desperate. On £89 a week they cannot pay for care in a nursing home costing £120 a week. The lady referred to in the letter from which I quoted is probably a spinster with no next of kin, whose brothers and sisters have died or are in equally poor circumstances. This is a political issue so far as I am concerned.

Amendment No. 50 proposes to substitute the word "shall" for the word "may". In the 1964 Act the word "shall" was included but in this Bill it has been changed to "may". There will certainly be a vote on this amendment if it is not accepted.

Mr. Howlin

I share Deputy Yates's view that this is a very important section. Basically we are talking about who can gain access to nursing homes. We can have the finest nursing homes in Europe and provide for standards of the highest quality but if people cannot afford them we are wasting our time. We have to be aware that there are various categories of people who have no option but to go into a nursing home because there is nobody to care for them. I dealt at great length in my Second Stage contribution on the financial aspects of this matter. There are many elderly people living alone and elderly persons caring for spouses or infirm relatives because there is nowhere for them to go.

Brownswood Hospital, in Deputy Yates' home town — which was previously a geriatric hospital is now a private nursing home, and Gorey District Hospital which was previously under the auspices of the South-Eastern Health Board is now a community-based hospital and is not available to all. The number of beds available to the elderly from the health board's perspective has decreased dramatically since 1987. I can quote the figures, as I did in the debate we had here in February, should the Minister require it. The option for many people is to avail of private nursing homes. That is a good option for some but it is no option for those who simply cannot afford such care. We are wasting our time tonight if we do not provide in this section a framework that will enable all those who need it to avail of proper nursing home care in their twilight years.

The financial implications in this section are crucial and fundamental. The first amendment in the name of Deputy Yates is not the most controversial amendment of this section but it is a very important one. People who make application for health board subvention should at least receive an answer within a reasonable time. We could all quote cases into the record of the House of inordinate delays in simply getting a response to a simple request from a health board for subvention. It all boils down to the fact that health boards have not got the money and that, therefore, they drag their heels and elderly people are left in a state of discomfort, to put it midly, and in some cases in dire circumstances waiting for a decision. Sometimes they have gone to their graves before a decision is made to provide them with adequate nursing home care.

Mr. Sherlock

I rise to support the amendment. I am sure the Minister will know what I am talking about when I refer to the fact that he has much correspondence from certain parties in my county relating to the amounts paid to some of the nursing homes. It is not sufficient to provide in the legislation that "if the health board is 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, it may ...". The provision would be strengthened by the substitution of the word "shall" for the word "may". More private nursing homes are coming into existence as a result of the difficulty presented by people not being able to get accommodation in health board institutions. People are assessed by the geriatrician of the health board and are told that it could take eight or nine months before a bed becomes available. This means they have to avail of private accommodation.

An Leas-Cheann Comhairle

Has Deputy Sherlock strayed into some other amendment?

Mr. Yates

He strayed back again.

Mr. Sherlock

Where a subvention is being paid, the process should be completed within a prescribed time. I want to stress as strongly as possible the need for such subvention and for payment within a reasonable time.

Mr. Browne

(Carlow-Kilkenny): I would like the Minister to clarify the position of subvented beds. Having been a member of a health board for a number of years, I was always led to believe that the beds were subvented regardless of the means of the applicant. In other words, if a nursing home had ten subvented beds it did not matter to the health board who occupied them. This was very unfair in that someone who could well afford to pay the full amount was allocated a subvented bed. In County Carlow those who are in the nursing home are unofficially barred from being considered for admittance to the hospital under the aegis of the health board. It is considered that if they went into the nursing home they can afford to pay. They go into the nursing home because of an emergency and because relatives who cannot afford it must get them into some nursing care. I am keen to hear what is the position in relation to subvented beds because based on this discussion it means that people can apply.

Dr. O'Hanlon

Subject to your direction, I am not sure whether we are dealing with amendment No. 49——

An Leas-Cheann Comhairle

We are dealing with amendment No. 49.

Dr. O'Hanlon

Many points were raised which we could deal with further on in the section.

Mr. Yates

May I ask——

An Leas-Cheann Comhairle

While a little latitude is important it has been to the disadvantage of the debate. On the other hand, it has been noted here that little by little if often leads to other topics.

Mr. Yates

From previous experience I have had with other legislation when you arrive at the next amendments you find they are out of order. Can you confirm whether amendments Nos. 50, 51 and 52 will be in or out of order?

An Leas-Cheann Comhairle

Deputy Yates is excellent at anticipating that amendments Nos. 50 and 51 are both out of order.

Mr. Yates

Therefore, we would need to be fairly liberal in our comments on amendment No. 49 in view of the fact that when we go beyond that amendment we are trapped.

An Leas-Cheann Comhairle

The Deputy can take it that even if it is out of order, in that it cannot be formally moved, that does not deprive Deputy Yates, or any other Deputy with the same imagination, when speaking on the section to deal with that which they hoped might be dealt with in the amendment.

Mr. Yates

I hope it will be——

An Leas-Cheann Comhairle

I should not be encouraging the Deputy to circumvent.

Mr. Yates

——understood that when we are voting against the section that we are voting in favour of amendments Nos. 50 and 51 and not against the section per se but we are forced to do that because of procedures.

An Leas-Cheann Comhairle

Earlier, the Deputy spoke about presumptions and assumptions. They are a matter for the interpreter — himself or herself.

Mr. Howlin

In anticipation that amendment No. 50 — which I share with Deputy Yates — and my amendment No. 51, are out of order, they are important——

An Leas-Cheann Comhairle

Amendment No. 52 is also out of order.

Mr. Howlin

We have three sections to deal with in the hour. Without these amendments the section is effectively gutted and I give notice that the Labour Party will be opposing this section for those reasons.

Dr. O'Hanlon

I do not intend to accept this amendment. While I accept that health boards should not delay unduly I would be happy to include something in the regulations or in the code of practice, but I do not think it would be appropriate to write it into the Bill. In the vast majority of cases the health boards process claims fairly expeditiously. I take the point raised by Deputy Yates that he is aware of a case where that did not happen.

Mr. Yates

It will be interesting to see how mandatory the code of practice will be because this will be the acid test. In my view the procrastination and the bureaucracy that has been shown in processing some of these cases is unacceptable. I instanced a case where application was made in May and they still did not have an answer in January. That is totally unacceptable. The reason I am not pressing this amendment to a vote is that I will be able to resubmit it on Report Stage and we will be able to rehash the general issues again. We will have a full debate on the section. I do not want it to be said that we are voting against the section for the wrong reasons.

An Leas-Cheann Comhairle

It is obvious to the Chair that Deputy Yates is not a poker player.

Amendment, by leave, withdrawn.

Question proposed: "That section 7 stand part of the Bill."

Mr. Howlin

I appeal to the Minister to look again at this section. This section is the meat of the Bill. If we cannot enable people to avail of nursing homes, particularly the most vulnerable and the poor, then we are wasting our time trying to make regulations. What are we doing? We are making regulations for those who are wealthy enough to be able to afford them and excluding a whole category of people who simply do not have the financial resources to avail of nursing home care. I had hoped there would be a devolved responsibility on the health board to maintain those people who are means tested and are determined by the health board not to be in a position to maintain themselves. What will happen now? The looseness of the phraseology in the section leaves it to the health board to possibly subvent — they may subvent somebody whom they determine is unable to pay any or part of the cost of the nursing home. It is totally unacceptable that that would be the position.

Clearly the same position will arise as in the case with dental treatment and all the other aspects of care where there will be a patchwork service throughout the country where some health boards provide it very effectively while others do not, where the delivery of service would be excellent in some regions and awful in other regions. The bottom line is that there will be no statutory responsibility devolved on health boards to provide for those who are unable to provide for themselves in their twilight years. This is compounded by the fact that the Minister has, by direct policy decision since 1987, taken many thousands of public beds out of service. The number of geriatric beds available to the general population is substantially fewer than it was in 1987. When people are clamouring for a service and when others are willing to provide that service it is wholly unacceptable that the Minister would not require health boards to provide this money to all those who need it.

I put it to the Minister that it is the mark of a civilised society that we would make adequate provision for all our elderly. It has been a hallmark of this society in particular and something that is unique among western civilised nations that we have regard for the elderly. Generally, we do not abandon our elderly as is often the case in some European societies. The enactment of this Bill will not help this process. If they do not have the resources themselves — those who have no relatives left, those whose spouse is elderly and unable to look after them and those left with no other option — they will not be able to get into a nursing home.

There is also the spectre of those who are actually in a nursing home who cannot continue to maintain themselves because of changed circumstances. What will happen to those? What we see here is a wishy washy section that enables health boards, at their discretion, to subsidise to some degree those who, it is determined, do not have the resources to look after themselves. That is unacceptable. I appeal to the Minister not to allow this Bill to be effectively gutted and made useless by the inclusion of this watery, ineffectual section as it stands and to give some commitment that he will look at it again between now and Report Stage. In the interim I want to inform the House that the Labour Party will oppose this section because it does not provide an adequate and comprehensive service to all elderly people who need it.

Mr. Yates

This section is the most important for the practical daily lives of those who are residents in and those managing and running nursing homes. It is all very well to talk about a graded level of subvention. This is the concept behind this section. We would all support the idea that the level of subvention should be higher for an Alzheimer's patient who requires a more demanding type of nursing. That is fine in theory but the reality is that no new homes have been approved since 1980. Therefore none of the patients in those homes can receive one penny by way of subvention. The present level of subvention, at a maximum of £45 per week, bears no relationship to the actual cost. What we are doing in this Bill is going backwards. Section 54 of the 1953 Health Act places a legal obligation on the health boards to provide financial assistance to people in nursing homes but now the word "shall" is being taken out and replaced with the word "may". The section will now read "... it may, if the person enters or is in a nursing home, and subject to compliance by the home with any requirements made by the board for the purpose of its functions under this section, pay to the home such amount in respect of such maintenance as it considers appropriate having regard to the degree of the dependency and to the means and circumstances of the person".

The National Council for the Aged in a major report on the elderly dealt with the question of subvention and highlighted the hardship caused for people as a result of the shortfall between the income of the person, by way of their pension and the health board's subvention, and the fee charged by the nursing home. In some cases the shortfall may be as high as £40 a week. This problem is compounded by the fact that supplementary welfare is not payable to those maintained in an institution. Therefore, this is a retrograde step.

It is also true that the health boards have failed to discharge their responsibilities under the 1953 Act to provide institutional assistance for persons unable to provide it for themselves. They are obliged to provide such institutional assistance where it is necessary and proper to do so. The truth of the matter is that the Minister does not want to implement that provision and this is totally unacceptable. I note from today's newspapers that the Private Nursing Homes Association have said that it is impossible to take in patients because they cannot afford to pay. I would not mind if the Minister was taking an active policy decision that these people should be cared for in State institutions but he has closed that door, as many of those have felt his scalpel or hatchet during the past three years.

Where are these people to go? We are aware that only 4 per cent of the elderly require residential care. We are also aware that the number of people over 70 and 80 years of age is on the increase. Having regard to the fact that it may be another 20 years before we deal with similar legislation, we should bear in mind that this is the most defenceless and most frail group in society who simply do not have the vim and the vigour they once had. What are we doing? We are going to remove the word "shall" and replace it with the word "may" and water down their rights. I tabled amendments to ensure some element of progression but these were ruled out of order. I suggested that 70 per cent of the approved weekly costs would be met, with the remainder being met by way of their pension and so on.

I am bitterly disappointed. Subvented beds are not available and have not been available for some time. The reality is that people go before the geriatric assessment committees and are told by the geriatric placement nurse that they are being put on a waiting list. Before one can gain access to St. John's Hospital or Haughton's Hospital, New Ross, in my constituency, someone has to die. People have no hope of getting a subvented bed even though some of them are living in appalling conditions in the community. There is no doubt that in the long run it would be far cheaper, from the point of view of the Exchequer, to grant a subvention of either £70 or £80 per week than to maintain a geriatric bed at £220 a week on average.

We are throwing people to the wolves. Our intention to improve quality and standards and the regulations will be set at nought if access is denied, and access is being denied, to the most defenceless and poorest within our community. It is totally unacceptable that we should try to legislate for a two-tier system. In other words, if someone has enough money, perhaps inherited from a late husband, they can afford to go into a nursing home for which we have set down standards, and if one cannot gain access, tough luck. This is a very serious matter and I appeal to the Minister to remove the word "may" and maintain the status quo by reinserting the word “shall”. I am sure when the heads of the Bill were circulated the Department of Finance saw the opportunity to change the wording. It is incomprehensible how the Department of Health allowed this to happen and it is totally unacceptable.

Mr. Sherlock

I indicated earlier that the inclusion of the word "may" weakens the section considerably. As regards sections 26 and 54 of the 1970 Health Act, the amount payable is arbitary and the effects of this have already been referred to in this debate. The health boards have resorted to subterfuge to contain costs, with the result that great hardship and distress have been caused for those in need of long stay services and those providing them. In such circumstances, the elderly may be offered a subvented bed a long distance from their homes or their families in the belief that they would receive a subvention. It has been reported that in some cases people who had been receiving a subvention for some time for no apparent reason saw this being withdrawn.

Nursing home owners are trying to provide and run a viable, cost effective operation of good quality but have experienced delays in the payment of subventions, their removal or the imposition of extra conditions with a demand for higher standards and facilities at the same time. We need these facilities and now have to depend on this system, given the failure of the health board and the Department of Health to provide care. The Department of Health should ensure that the necessary resources are made available to enable the health boards to provide such care. It is not good enough to leave this matter to the discretion of the health boards in assessing who is in need of care and what the means test should consist of.

We are all aware that when there was a reduction in the number of staff in our hospitals a few years ago there was a furore, but now things are being done in a more subtle way. People are now means-tested for benefits to which they are entitled. I feel the same will happen with regard to the subvention payable by health boards if the word "may" is not deleted from the Bill and the word "shall" substituted. We need strong legislation to compel the health boards to provide subventions. As Deputy Howlin said, the way we care for the elderly and sick is the hallmark of our society. We have an opportunity in this Bill to ensure this by making provisions for the payment of subventions to nursing homes.

Mr. Browne

(Carlow-Kilkenny): Thug an tAire an chluas bhodhar dom an t-am deireanach seo so cuirfidh mé an cheist arís air. “Subvent the beds”. I was at the cutting edge — if that is not a bad phrase to use in this House — having sat on the health board where we certainly had no such thing as an application for a subvented bed from an individual patient or even from a hospital, despite the lovely buildings that went up. There was no question of any subvented beds I would say for the last five years. Are beds subvented for individuals, is it a total amount or is it up to different health boards? We are discussing subvented beds here and as one who had dealt with them I say that they are much more fiction than fact at the moment in our part of the country. They do not exist. You could not apply for one.

Mr. Ryan

In dealing with the major problem of subvention and providing for people in need we looked forward to this section, now we find it envisages a continuance of the two-tiered health service. The elderly in our society and their families had looked forward to this Bill and particularly to this section to help them along the road and to bring them some sort of future. The State has a statutory obligation to provide health care for people, provided the facilities are there. In relation to our senior citizens elderly people and medical card holders, while the statutory obligation is there it is there provided you can get access to our institutions whether State or health board. Unfortunately, that depends very much on the subvention. In this section we are deprived of an opportunity either in the legislation or through regulation to give some definite commitment from the Oireachtas here to the people out there whom we were looking forward to assisting. For most of the private institutions the charge could be £200 per week.

A medical card holder who is entitled to care cannot get into a public hospital. Perhaps he is getting £50, £60 or £80 a week from social welfare. What are we getting for such a person at the moment? Perhaps £40 or £45 at the maximum. Who is going to care for him? We had looked forward to this section of the Bill for some hope for such people. We can all talk about our constituencies. In my constituency a daughter and a son are trying to rear families on their own and to get the £40 or £50 per week to bring a little dignity into the last days of their mother's life. Because they cannot produce that money and have to look after and educate their children there is the possibility that their mother will be evicted — I do not like to use that word because we use it in another area — from the hospital and sent home. Where in our Constitution are we providing for such people? We had hoped through this section to provide under regulation, if necessary, the subvention to maintain persons in institutions.

An Leas-Cheann Comhairle

Let me interrupt you gently to remind you that the case in respect of section 7 has been well made and maybe requires no repetition, bearing in mind the time constraints upon us and, as I see it, the inevitability of a vote on this section, unless Deputy Ryan is absolutely convinced he is going to change the Minister's heart in some few minutes.

Mr. Yates

Hope springs eternal.

Mr. Ryan

A vote will not go on the basis of what the Minister is saying——

An Ceann Comhairle

I do not remind the Deputy on the basis of a vote but on the matter of repetition. We have had a series of similar presentations and maybe we can economise on them.

Mr. Ryan

I feel I have to make a case for many people who had hoped in this section to see a positive response from the Minister. I ask the Minister to elaborate on the phrase "having regard to the degree of the dependency", is it physical dependency or financial dependency? We have people in nursing homes who are well able financially to look after and provide for themselves. At the same time medical card holders, people in need who depend on that extra £10, £20 or £40, whatever is necessary to provide for their care in those institutions, are being deprived of that. The Minister might take on board not only my view but the views of all Opposition spokespersons when he is framing the regulations.

Dr. O'Hanlon

I do not understand how Deputies maintain this section of the Bill is going backwards. The section is an improvement on what is there already and it is a new provision which implements one of the recommendations of the working party who prepared the report The Years Ahead — A Policy for the Elderly. Reference has already been made to the difficulties in various health board areas around the country where section 54 of the Health Act, 1970, has not been implemented, or at least no new nursing homes have been approved under that section since 1980. That is going back a long time. Various Governments have been in power since 1980 and the Minister for Health has responsibility for implementing that legislation, but no Minister for Health since 1980 has approved new beds under that section of the 1970 Act. The Eastern Health Board have implemented another section of the Act, section 26, under which they can give a subvention to individuals in hospital beds and they have been doing that.

What is important about this section is that, first, we will not be depending on the Minister for Health of the day to subvent the beds. It will be a matter for the health board to assess each patient and decide, having regard to (1) the patient's needs and (2) the degree of dependency, what the subvention should be. The idea behind this section and its main thrust is to ensure the resources — which everyone accepts are limited — are targeted at the very people Deputy Ryan was talking about, the people who need them, having regard to the level of dependency and the degree of nursing required. We are contemplating several categories — mild, moderate and heavy and possibly a fourth subvention category for those suffering from dementia, Alzheimer's disease. There is an obligation on the health board to provide support for the elderly in need. Only a very small percentage of the elderly find their way into long-term residential care. The vast majority of the elderly live in their own homes or live with their families. Families are, of course, the great carers in Irish society. Deputy Howlin has already referred to the fact that we in Ireland look after our elderly people extremely well. The beds closed by the South-Eastern Health Board were district hospital beds.

Mr. Howlin

The Minister cut their money and they had no option.

Dr. O'Hanlon

Other health boards faced the same problem and did not go in that direction.

Mr. Howlin

The Minister is slandering the health board.

Dr. O'Hanlon

The health board made that decision.

An Leas-Cheann Comhairle

Deputy Howlin knows that on Committee Stage he will have ample opportunity to congratulate or attack the Minister in any way he likes.

Mr. Howlin

I am defending the members of the health board, the majority of whom are members of the Minister's party.

An Leas-Cheann Comhairle

Deputy Howlin knows that it is not in accordance with the high principles of the House or with his own high standards that he should interrupt the Minister.

Dr. O'Hanlon

The beds closed by the South-Eastern Health Board were district hospital beds and were funded as such by my Department. They were not geriatric beds. I had a most enjoyable day with Deputy Browne in Carlow when we reopened one of them. It is a credit to the local community. We were in a position to provide some funding from the national lottery, not only in Bagenalstown but also in Kilrush where the health board have 22 patients and a voluntary group have 48 patients in residence in the hospital. There have been some improvements in areas where beds were closed but they were district hospital beds, not beds for the elderly.

Under this Bill there will be no diminution of resources for the care of the elderly. The Government showed their commitment to the care of the elderly by providing £5 million in the budget. I stated on Second Stage that persons at present being subvented will continue to be subvented.

Mr. Ryan

At what rate?

Dr. O'Hanlon

At the rate they are being subvented, but there is no reason a person or a relative cannot apply for the new subvention rate. There will be no diminution of resources. The existing subvention to patients will continue but I retained £500,000 from the £5 million allocated by the Government in the budget for implementing this Bill in the current year in respect of subventions for patients. This is a major improvement. Deputy Browne said that since 1980 no new beds have been subvented in any health board area. Not alone will patients who are in those beds continue to be subvented under the old rate but there will be no objection to their applying for the new rate. The sum of £500,000 is being allocated in the current year and will be targeted at people in accordance with this section, that is, people depending on their own income and means, in the light of their degree of physical dependency.

Mr. Howlin

Who will decide that?

Dr. O'Hanlon

The health board will decide that. To some extent it is being done already under section 26 of the 1970 Health Act by the Eastern Health Board.

Mr. Howlin

How will the Minister distribute the £500,000?

Mr. Yates

As usual the Minister has tried to disguise what he is really at. I am most disappointed that he has made no reference to willingness to change the word "may" to "shall". Under section 54 of the 1953 Act it is provided that a health board shall provide financial assistance to those who cannot afford to pay for their stay in a private nursing home. In this section we are changing from the word "shall" to "may".

During Second Stage debate on 9 November 1989 the Minister said:

I wish to stress that any person in receipt of a subvention at present under section 54 will not be affected by the Bill in any way. These subventions will continue to be paid as long as the person is in the home. However, no new applications will be accepted for section 54 subventions when the provisions of this Bill take effect.

We can see what the Minister is at. The £500,000 is a mirage, a sop. It works out at £100 per week for one year for 100 extra pensioners. It goes nowhere. We are talking about a single non-contributory old age pensioner with nil means in receipt of about £50 a week. How is that person to survive when the cheapest nursing home costs about £110 a week and costs can range up to £220 per week? A person either goes into a nursing home or goes on to a waiting list for a State or health board geriatric home. That is the choice. The Minister is diminishing their rights. There is no point in being aspirational about light, medium and heavy grading in relation to subventions unless one is prepared to say it means £45, £75 and £90 per week. It means no such thing. If a person is lucky enough to live in the Eastern Health Board area tonight he or she has a chance of subvention; after tonight nobody in the country has a guaranteed right to a subvention, even meeting the criteria. I am not talking about satisfying the assessment criteria to get a bed in one of these nursing homes. All that has to apply irrespective of the financial aspects. This is most unfair.

To say that the report on the care of the elderly or any other report vindicates what the Minister is doing is simply unfair. This is a very retrograde step and it is undeniable that it comes on top of taking about 3,000 long stay beds out of the system nationally over the past five years or so, under a number of Governments. This is no way to treat our elderly, who will increase between now and the end of the century by 7 per cent as a proportion of our population.

It is tragic that this is happening. In responding to all the specific points made the Minister did not give any justification for the use of the word "may" instead of the word "shall". What the Minister is doing is deplorable and is a retrograde step. One has only to look at today's newspapers to see that the Private Nursing Homes Association believe the present level of subvention, which is not available for 60 per cent of the population, is totally inadequate. People have to wait from May to January to get their claims processed. I ask the Minister to give a commitment to this House that he will substantially re-examine section 7 of the Bill to at least ensure that we do not go backwards, as outlined on page 17 of his Second Stage speech and in the 1953 and 1970 Health Acts.

Mr. Browne

(Carlow-Kilkenny): The Minister stated clearly that nothing has happened in regard to subvention since 1980. Many demands were made by this side of the House from 1982 to 1987 for money to be spent on the health services. The Minister is supposed to provide money for these services but nothing has happened in this area for the past three years. If an old person in my constituency wants to apply for subvention can I tell him that the subvention is available now or will be available shortly or are we talking about something that may happen sometime?

Mr. J. Bruton

I wish to refer to a problem which affects the health board area in which both I and the Minister live, that is, the North Eastern Health Board. In practice no private nursing homes in that health board area are subvented. This is false economics and results in long waiting lists to get into the county homes in the North Eastern Health Board region. These homes cost in the region of £220 per week whereas the subvention would be probably a quarter or little more of that amount if it was made available by the North Eastern Health Board. The result of this is that many people are remaining in acute beds in hospital because they cannot be discharged. No private nursing home will take these people because no subvention is available in a private nursing home and the waiting lists for the county homes are so long that they have no possibility of getting into them.

We have very bad economics in this area in the sense that many people are staying on in acute hospitals where the cost may be £300 to £400 per week, a few people are staying in the county home which costs £220 per week and many people are living in intolerable conditions at home where both they and their families are suffering. Essentially the limited State resources which are available — one must recognise the resources are limited — are being misapplied in the sense that they are either going towards a very expensive facility or they are not going at all to the families concerned.

I realise that health boards are local authorities and have certain discretion in the matter but I hope the Minister will be able to ensure that there will be a uniform policy of subventing private nursing homes so that they can deal in a cost effective way with this acute human problem. Something needs to be done about the policy of the North Eastern Health Board which to my mind is plain and simply mistaken.

Mr. Ryan

The Minister said that an additional £500,000 would be made available for this scheme. Will he confirm whether there will be defined criteria across the health boards in relation to the increased subvention? Is the Minister talking about an extra £10, £20 or will it be up to the maximum amount? Will this amount be defined right across the board or will it be left to each health board to decide the amount? It will be totally unacceptable if it gets to the stage where a local representative has to make representations on behalf of an individual. The present level of subvention is totally unacceptable. It is necessary to define the criteria so that people will know what they are entitled to and that there is a possibility of a further increase so that they can retain a bed in a particular institution.

I asked the Minister if the word "dependency" in section 7 related to physical or financial dependency or both. I should like him to comment on that point.

Dr. O'Hanlon

I agree with Deputy Bruton about uniformity even if his colleague, Deputy Yates, does not so agree.

Mr. Yates

I spent the whole evening talking about uniformity——

Dr. O'Hanlon

Deputy Yates complained that when this new legislation, which will target the resources towards the people who most need them, is in place applications under section 54 will no longer be accepted. Surely the Deputy agrees with his colleague, Deputy Bruton, who favours uniformity throughout the country so that the resources are targeted towards those who need them.

Mr. J. Bruton

The Minister should deal with the point I made and not play games with the level——

An Leas-Cheann Comhairle

The Minister should be allowed to reply without interruption. He did not interrupt anyone.

Mr. J. Bruton

If the Minister was replying to the points made there might be some point in that.

An Leas-Cheann Comhairle

Before commenting on what is being said, Deputy Bruton will have to wait until the Minister has completed his reply. The Deputy will be entitled to comment on the Minister's reply then but he is not entitled to interrupt him as he commences his reply.

Mr. Yates

The Minister knows his health board is the worst.

Mr. J. Bruton

The Minister is acting the comic.

An Leas-Cheann Comhairle

I might say to the Minister that if he did not look so invitingly to Deputy Yates and Deputy Bruton and addressed the Chair he would not be interrupted by the Chair.

Dr. O'Hanlon

Because I have some good news for Deputy Bruton, I thought it would be appropriate to look in this direction but I take your point, a Leas-Cheann Comhairle. What Deputy Bruton is suggesting for the North Eastern Health Board is what will happen with the introduction of this legislation; money will be available in the North Eastern Health Board area and it will be targeted towards those in need on the basis of their means——

Mr. Yates

It becomes discretionary.

Dr. O'Hanlon

——and depending on the level of care they need. Obviously some people need a much higher level of care and a much higher standard of staffing than others. This legislation will do what Deputy Bruton has proposed.

Before I resume my seat I think it is only right that I should follow on from the paragraph of my Second Stage speech quoted by Deputy Yates which stated that no new applications under section 54 would be accepted when the new legislation took effect. The following paragraph of my Second Stage speech, which was before the budget, states, and I quote:

I would like to give an assurance that the overall level of financial support for people cared for in nursing homes will not diminish as a result of this Bill. This provision is not about saving money; it is about enabling health boards to target their available resources most effectively and to respond flexibly to the changing demands of dependent people for whom they have responsibility. This is the approach which the new subvention arrangements provide for.

Mr. Yates

The Minister knows what "targeting the resources" is the code language for.

Dr. O'Hanlon

Yes, I do. The Deputy also said that 3,000 long-stay beds had been closed.

Mr. Howlin

I will give the Minister the accurate figure in a minute.

Dr. O'Hanlon

I challenge the Deputy to say where those beds were lost; I think he was one or two noughts out.

Mr. Howlin

I am glad the Minister quoted that paragraph from his speech. When I quoted one sentence from his speech in my Second Stage contribution he denied he said it, and I had to read it out for him at that time. The Minister has found that sentence and he knows it was in his speech.

I want to ask the Minister a relevant question in regard to this section. He said he is holding back £500,000 to help subvent beds. How is that £500,000 to be distributed? Is he going to distribute it on a per capita basis to each health board? Is he going to do it on the basis of applications from each health board on the number of subventive beds they seek to provide or on the basis of direct application to his Department by individuals? How is the Minister going to distribute that £500,000 around the country? I ask the Minister to give me a direct reply to those questions.

An Leas-Cheann Comhairle

Deputy Sherlock has indicated that he would like to put a question. I would remind the House that we must put the question at 9 p.m. Perhaps the House could give this an additional minute or two. Is that agreed? Agreed.

Mr. Sherlock

In the length of time available to me I would appeal to the Minister to agree to come back on Report Stage with an amendment to the section that will make the necessary provision. I will give the reason I ask this. It becomes more serious as we go along. In the previous debate on this issue I mentioned section 1 which I said was very specific in that it defined a dependent person as one with a physical infirmity or a physical injury, defective disease or mental infirmity. Old age does not fit into that category. We have a situation where people are in beds in acute hospitals because there is no accommodation for them. There are people who are being accommodated in the private nursing homes and their families are paying, which they can ill afford to do in the circumstances. We have the worst situation we could have in this State when elderly people now feel they are being neglected. There was a hope that something would be done for them in this Bill but the fact is they are being neglected and will be left to die because no provision will be made for them. Beds have been closed down in every health board area in this country. Only yesterday at a health board meeting people from Killarney came into the Southern Health Board appealing to the health board to reopen the beds that had been closed in 1988 and 1989.

Mr. Browne

(Carlow-Kilkenny): I am beginning to think my name should be Green rather than Browne because every time I get up the Minister sits down and takes no notice of what I ask him.

Mr. Yates

When the Deputy is here long enough he will get used to that.

Mr. Browne

(Carlow-Kilkenny): Let me ask the Minister could I honestly fill in a form for a person in the South Eastern Health Board at the moment and say there will be subvention for beds from now on?

Dr. O'Hanlon

Deputy Browne himself pointed out that no new beds have been subvented in any health board area since 1980. The answer is we cannot do that. In 1990 what we are trying to do is to get this legislation implemented as rapidly as possible to improve the situation.

On the question raised by Deputy Howlin about how the money will be divided, certainly it will be divided on the basis of need, but that will be decided when the legislation is passed and we are in a position to implement it.

Mr. Howlin

The Minister is not telling me.

Dr. O'Hanlon

The question raised by Deputy Sherlock about old age is an important one and we dealt with it earlier. We had a reasonable debate on the concept of old age not being included in the Bill. The reason is that the concept of old age is going out of fashion internationally. We did agree with Deputy Sherlock, if my memory serves me correctly, that we would look at the section to ensure that there was nobody who was not included in it and if old age was the only terminology we could come up with that it would go in, but we will have a look at that.

The final point is that more resources will be made available. This section in the Bill is certainly an improvement on the situation as described by Deputy Browne and others and it will improve people's position considerably and will do what I am sure everybody in this House wants to do, that is target the resources at the people who need them.

Question put: "That section 7 is hereby agreed to, that section 8 is hereby deleted, that the amendment set down by the Minister for Health to section 9 is hereby agreed to and that the said section, as amended, is hereby agreed to."

The Committee divided: Tá, 71; Níl, 61.

Tá

• Ahern, Dermot.
• Ahern, Michael.
• Andrews, David.
• Aylward, Liam.
• Barrett, Michael.
• Brady, Gerard.
• Brady, Vincent.
• Brennan, Mattie.
• Briscoe, Ben.
• Browne, John (Wexford).
• Burke, Raphael P.
• Calleary, Seán.
• Callely, Ivor
• Fitzgerald, Liam Joseph.
• Fitzpatrick, Dermot.
• Flood, Chris.
• Gallagher, Pat the Cope.
• Geoghegan-Quinn, Máire
• Hillery, Brian.
• Hilliard, Colm.
• Hyland, Liam
• Jacob, Joe
• Kelly, Laurence.
• Kenneally, Brendan.
• Kirk, Séamus.
• Kitt, Michael P.
• Kitt, Tom
• Lawlor, Liam
• Lenihan, Brian.
• Leonard, Jimmy
• Leyden, Terry.
• Lyons, Denis.
• Martin, Micheál.
• McCreevy, Charlie.
• McDaid, Jim.
• Clohessy, Peadar
• Connolly, Ger.
• Coughlan, Mary Theresa.
• Cowen, Brian.
• Cullimore, Séamus.
• Daly, Brendan.
• Davern, Noel.
• Dempsey, Noel.
• Dennehy, John.
• de Valera, Síle.
• Ellis, John.
• Fahey, Frank.
• Fahey, Jackie.
• McEllistrim, Tom
• Morley, P. J.
• Nolan, M. J.
• O'Connell, John.
• O'Dea, Willie.
• O'Donoghue, John.
• O'Hanlon, Rory.
• O'Keeffe, Ned.
• O'Leary, John.
• O'Toole, Martin, Joe.
• Power, Seán
• Quill, Máirín.
• Reynolds, Albert.
• Roche, Dick.
• Smith, Michael.
• Stafford, John.
• Treacy, Noel.
• Tunney, Jim.
• Wallace, Dan.
• Wallace, Mary.
• Wilson John P.
• Woods, Michael.
• Wyse, Pearse.

Níl

• Allen, Bernard.
• Barrett, Seán.
• Belton, Louis J.
• Boylan, Andrew.
• Bradford, Paul.
• Browne, John(Carlow-Kilkenny).
• Bruton, John.
• Bruton, Richard.
• Byrne, Eric.
• Carey, Donal.
• Connor, john.
• Cosgrave, Michael Joe.
• Cotter, Bill.
• Creed, Michael.
• Crowley, Frank.
• Currie, Austin.
• D'Arcy, Michael.
• Deenihan, Jimmy.
• De Rossa, Proinsias.
• Doyle, Joe.
• Dukes, Alan.
• Durkan, Bernad.
• Farrelly, John V.
• Ferris, Michael.
• Finucane, Michael.
• Flanagan, Charles.
• Gilmore, Eamon.
• Gregory, Tony.
• Higgins, Jim.
• Hogan, Philip.
• Howlin, Brendan.
• Kavanagh, Liam.
• Kenny, Enda.
• Lee, Pat.
• Lowry, Michael.
• McCormack, Pádraic.
• McGahon, Brendan.
• McGinley, Dinny.
• McGrath, Paul.
• Mitchell, Gay.
• Mitchell, Jim.
• Moynihan, Michael.
• Nealon, Ted.
• Noonan Michael.
• (Limerick East)
• O'Brien, Fergus.
• O'Shea, Brian.
• O'Sullivan, Gery.
• O'Sullivan, Toddy.
• Owen, Nora
• Pattison, Séamus.
• Quinn, Ruairí
• Rabbitte, Pat
• Reynolds, Gerry.
• Ryan, Seán.
• Shatter, Alan.
• Sheehan, Patrick J.
• Sherlock, Joe.
• Spring, Dick.
• Taylor, Mervan.
• Taylor-Quinn, Madeleine
• Yates, Ivan.

Tellers: Tá, Deputies V. Brady and Clohessy: Níl, Deputies J. Higgins and Howlin.

Question declared carried.

SECTION 10.

Mr. Yates

I move amendment No. 58:

In page 9, subsection (1) (a), line 38, to delete "is of opinion" and substitute "has reasonable cause to believe".

This amendment has already been debated and, on the basis of what was discussed earlier, I will withdraw it.

Amendment, by leave, withdrawn.

An Ceann Comhairle

Amendment No. 59 in the name of the Minister was discussed with amendment No. 2.

Dr. O'Hanlon

I move amendment No. 59:

In page 9, subsection (1) (a), line 41, to delete "holder of the licence in respect" and substitute "registered proprietor".

Amendment agreed to.

An Ceann Comhairle

Amendment No. 60, in the name of the Minister, was also discussed earlier with amendment No. 2.

Dr. O'Hanlon

I move amendment No. 60:

In page 10, subsection (1) (c), line 3, to delete "person carrying on" and substitute "registered proprietor of".

Amendment agreed to.

An Ceann Comhairle

Amendment No. 61, in the name of the Minister, was also discussed with amendment No. 2.

Dr. O'Hanlon

I move amendment No. 61:

In page 10, subsection (1) (d), lines 13 and 14, to delete "holder of the licence in respect" and substitute "registered proprietor".

Amendment agreed to.

An Ceann Comhairle

Amendment No. 62, in the name of Deputy Yates, was discussed with amendment No. 48.

Mr. Yates

Amendment No. 48 was not discussed. We did not reach it and it fell by default as it was at the tail end of our session before 8 o'clock.

Mr. Yates

I move amendment No. 62:

In page 10, subsection (2) (b), line 30, after "notice" to insert "in writing".

This amendment would make the section more explicit by requiring notice to be given to a person in writing because it is very important that any ambiguity or subsequent grievances are avoided. It is not a substantial change but it would bring order to the procedures and operations of this Bill by health board personnel. Therefore, I ask the Minister to accept this modest, but sensible, amendment.

Dr. O'Hanlon

This amendment is unnecessary because, in the circumstances envisaged in the section, notice that a nursing home management order would be sought would normally be made in writing. A health board can only take over the temporary management of a nursing home either with the consent of the owner or on foot of a court order. This course of action would only be taken in cases of serious breaches of the regulations and it is not necessary to stipulate that notice of the intention of a health board to take such a step should be in writing. In this situation, it would be normal for written notification to be given.

Mr. Yates

If it is normal the Minister should have no objection to it being obligatory. I do not want to make a meal of this but it is not asking a lot of the Minister to accept it.

Dr. O'Hanlon

As I said, such an amendment is not necessary. The health board could only take over a nursing home with the consent of the owner or on foot of a court order.

Amendment, by leave, withdrawn.

Dr. O'Hanlon

I move amendment No. 63:

In page 10, subsection (2) (b), line 30, to delete "person carrying on the" and substitute "registered proprietor of the nursing".

An Ceann Comhairle

This amendment was discussed earlier with amendment No. 2.

Amendment agreed to.

An Ceann Comhairle

We come to amendment No. 64 in the name of Deputy Yates. Amendment No. 65 is an alternative and I suggest, therefore, that they be discussed together by agreement. Is that agreed? Agreed.

I note that amendment No. 65 is virtually identical to amendment No. 64 and, therefore, a decision on amendment No. 64 should suffice. If Deputy Howlin insists on a separate decision he may have it.

Mr. Yates

I move amendment No. 64:

In page 10, subsection (2) (c), line 35, after "home" to insert "provided an opportunity has been given for the person to comply with the regulations".

This amendment relates to subsection (2) (c) whereby a management order may be made from time to time in respect of a particular nursing home. This is more than a condition in the establishment of a nursing home in relation to registration. It may be an order given from time to time to, say, put in a new drain, to improve hygiene or whatever it might be. If it involves a physical dimension it is reasonable that an opportunity should be given, prior to it being made an order, for the person to comply. Therefore, in terms of getting a balance and being reasonable, I ask the Minister to accept the amendment.

Mr. Howlin

As you rightly said, my amendment is virtually identical to amendment No. 64 in the name of Deputy Yates. It is to allow a proprietor a reasonable opportunity to state his case before a management order is granted. It is a sensible provision — one which the proprietors sought — and it does not impinge on the rights of individuals. If my amendment is accepted subsection (2) (c) would contain an additional sentence: "for the purposes of this section no management order shall be sought by the health board until the person carrying on the home has been given a reasonable opportunity to comply with the regulations". I dealt with breaches of the health regulations and it is normal practice for notice to be served and a reasonable time given to somebody to comply with regulations before a management order is taken, which is a drastic step. In some instances it is obviously an appropriate step but a reasonable opportunity should be afforded to the owner to comply with the regulations before this severe step is taken.

Dr. O'Hanlon

A health board would not normally seek a nursing home management order unless the regulations had been seriously breached. It would be a very serious step for a health board to take and could only be granted with the consent of the owner or the District Court. A nursing home management order is not the first line of action for a health board to take if the regulations have been breached. It is usual — and has been the practice to date — for the health boards to discuss the situation with the owner. A management order would be more suited to a crisis where there was an immediate threat to the wellbeing of the patient being cared for and where the proprietor was unable or unwilling to do anything about it. Prior to seeking an order the board would already have given a nursing home owner an opportunity to remedy the situation and, therefore, the amendment is unnecessary. The important point is that the management order must be with the approval of the owner of the premises or the District Court. Before going to the District Court I have no doubt that the health board would approach the owner and look for his or her consent to a management order because it is only applied in very serious breaches of the regulations. We must have balance and ensure that we protect the interests of patients. We must also respect the rights of owners of such premises.

Mr. Howlin

What would be the reaction of a management if they felt that the application for such an order was unjustified? Would they have to state their case in court? Is that the only option open to them? Would they not have any appeal mechanism in the health board to put a stay on such an application pending, literally, putting their house in order?

Dr. O'Hanlon

It would be up to the relevant health board to state the case as to why such an order was necessary. I do not think any health board would wish to seek a management order unless there had been some very serious breach of the regulations. Obviously it would create an additional burden on them which they would want to avoid if at all possible. Therefore, I do not think any health board would be rushing off to the court seeking a management order. If there was a serious breach, initially, they would discuss it with the owner of the premises; if it was something that could be rectified it would be and if it was something that could not be rectified then they would discuss with the owner the question of a management order. Should that prove to be unsuccessful then they might resort to the District Court.

Mr. Howlin

If the Minister feels that the normal procedure would be to have such discussions in advance of an application to the court, why is he reluctant to incorporate that provision in the Bill, so that it would be a requirement? We are talking about officials who, perhaps are sometimes over-zealous — we have all come across them — who might take a precipitate step. This is an endeavour to have natural justice apply, not only understood to be applied but required to be applied under the provisions of the Bill. If the Minister feels it would be the normal practice to have such discussions would he not think it appropriate to have that requirement incorporated in the Bill, so that there would be a requirement that such discussion, such lee-way — short and all as it might be — would be afforded the management of the relevant nursing home? Probably it would happen very rarely but it could happen that one could come across an over-zealous health board official who might feel a pre-emptive strike might be in order whereas natural justice would indicate a more appropriate course.

Mr. Yates

I might make two supplementary points to those already made by Deputy Howlin and myself. If these amendments were accepted by the Minister, or if he brought in this clause himself, an important factor would arise. The District Court justice would have to satisfy himself — before granting the management order — that the relevant health board had given the person an opportunity to comply with it. That would be a factor as part of their consideration of the case. If the requirement is not included the district justice would have to adjudicate on the bare case put forward by the relevant health board. I contend it should be part of the criteria that the district justice will have to decide not only whether a management order should be granted but whether he could say to the health board: "Hold on a minute. I will adjourn this case for two months because I do not believe they have been afforded an adequate opportunity". That is a significant point in favour of its inclusion in the Bill.

The second point is that not only must we remember the circumstances outlined by Deputy Howlin in which there could be a particularly zealous official but also circumstance in which, to all intents and purposes — if it goes to the District Court — the damaging publicity in the local papers would mean that nursing home, in terms of attracting new clientele, would be finished. One cannot say, "Go to the court and let the court decide". That might finish the business. It might not be worth talking about thereafter. Therefore, referral to the District Court constitutes a very serious step indeed. On those two points — not only the question of fair play but if this were incorporated in the Bill, it would form part of the justices criteria to ascertain, on balance, whether the owner has been given an opportunity to put his house in order as well as establish whether or not his house was in order — regardless of whether a management order in granted and it will be almost a fait accompli if it reaches the District Court. This is not a matter of mere semantics but could be a very important element in ensuring fair play.

Dr. O'Hanlon

I agree with what Deputy Yates says about it constituting a fairly major step to go to the District Court. For that reason I believe a health board would be very reluctant to do so, and would only do so in the most extraordinary circumstances in which there had been a very serious breach of the regulations. I believe they would give the owner an opportunity to comply with the regulations.

Inserting one or other amendment into the Bill might well defeat the objective we all want to achieve. What I do not want to do in this Bill is begin writing in extra amendments which will dilute one of its prime purposes, which is to protect the interests of patients in a nursing home. If we were to insert either of those amendments it could well be that, in a crisis — perhaps in a serious crisis in which the owners disappeared — the hands of the health board and the courts would be tied behind their backs, because they would be unable to provide a management order for the nursing home. We must be very careful when inserting amendments.

While I understand the Deputies' points, I believe their amendments are unnecessary. First, I am satisfied that a health board would move to the District Court only in the most critical of circumstances, that first they would discuss the circumstances with the owner. Remember it is in the interests of a health board that a nursing home would operate efficiently and effectively rather than their having to take responsibility for it. I could not foresee them rushing to seek a management order, rather they would seek the owner's consent and then go to the District Court. My concern is that, if we start putting further obligations on the health boards, they might find themselves in a crisis situation in which they would be unable to take the necessary action to protect the interests of the patients, which is what we all want to do.

Amendment, by leave, withdrawn.

Amendment No. 65 not moved.

Section 10, as amended, agreed to.

SECTION 11.

An Ceann Comhairle

We come to amendment No. 66 in the name of the Minister. I observe that amendment No. 68 is consequential on amendment No. 66. I might suggest that we discuss amendments Nos. 66 and 68 together. Is that satisfactory?

Mr. Yates

Agreed.

Dr. O'Hanlon

I move amendment No. 66:

In page 10, subsection (1), line 42, to delete ", at the expense of the board,".

This amendment is to clarify that a health board may undertake to pay part or all of the boarding-out costs. It was considered that the original phrasing suggested that a health board would pay all of the costs associated with a boarding-out arrangement, which was not the intention of the section. The purpose of this amendment is to clarify the meaning of the section.

Mr. Yates

The Minister has put a rather benign interpretation on this. On first reading I was certainly opposed to amendment No. 66 because it does not determine who will decide in what circumstances all or part of the boarding-out costs will be paid. This lack of clarity is usually a recipe for CEOs to negative any intention.

I might draw the Minister's attention to the report of the National Council for the Aged, entitled Home from Home, an excellent report on boarding-out schemes for older people in Ireland. It was produced in 1985. It was stated in that report that boarding-out certainly was worthy of consideration, that it should be further promoted and had been successful in a number of cases in so far as it allowed people to remain in their community and not moved elsewhere. It also allowed them to go to bingo sessions, to attend Mass, to go to the shops. They were part of the community when they were boarded-out. They were not, as it were, put away in some residential centre. It was contended that it was cheaper than the full-time cost of a nursing home and filled a policy vacuum. In the survey undertaken, one of the striking aspects was that only 144 people, elderly and non-elderly, are at present facilitated in eight boarding-out schemes, with a total of 63 carers, often in very rural areas. Therefore, boarding-out is a totally under-utilised option which should be given some element of financial support, if not preferential financial support.

I feel very strongly this matter needs to be dealt with. Amendment No. 74 in my name also deals with eligibility for assistance and covers the same point as the Minister's amendment No. 68 which states "may provide for the payment of all or part of the costs". I am very anxious that the criteria for eligibility for financial payments would be generous. In fact I would not be against payment being 100 per cent of the cost in view of the fact that 100 per cent of the cost of boarding out is less than two thirds of the cost of a nursing home, in other words we are talking about the same amount of money, as boarding out is so much cheaper.

For all those reasons I would like the Minister to clarify the following: how he envisages the payments for boarding out will work; the policy shift between what was originally proposed in the section prior to ministerial amendments Nos. 66 and 68 and if there is a shift, as we have seen in earlier sections, in the financial intent?

Mr. Howlin

We have had some discussion on the concept of boarding out and we are all favourably disposed to it as an option that health boards should make available to people for whom it is suitable. It is not extensively used at present but certainly there is a place for it in the scheme of things

Alarm bells ring when there is a change, as proposed by the Minister in this section. The section as originally drafted stated:

A health board may in accordance with regulations under this section make and carry out, at the expense of the board, an arrangement for the boarding out in a private dwelling....

The Minister is now saying that was a misunderstanding and that he did not really want to make it a requirement on the health board but would rather allow the health board to make a determination as to the means of an individual whether they will make a payment or not. We are again back to the core argument we had in section 7. We are now back to "may" and the health boards which are already under great financial pressure are given an authority which they "may" or "may not" exercise. I have not the slightest doubt that there will be people who could avail of this option just as I argued there were people who could avail of the option of private residential nursing homes, who will not be able to avail of it unless the health board subvents them to the full extent of the cost.

If the Minister's amendment is accepted we will have a vagueness in the section about the criteria that will be used for determining the amount of funding that will be available and whether health boards will consider the concept of boarding out as suitable, and perhaps they will not fund anybody in their health board area. Has the Minister views on this? Will he clarify whether there will be consistency right across the country and that the health boards will be required to provide funding for those who want to avail of boarding out, who are suitable for boarding out and have no resources other than being dependent on the health board to fund them. Clearly, if this legislation is amended in the way the Minister envisages, it will not place an obligation on the health boards to make such provision. It is aspirational and I am terribly nervous about leaving things as vague as they would be if the section is amended.

If we accept there is a role for boarding out and that it is a good idea for people who are mobile, healthy and able and who have no other dependants and want to be boarded out with a family so that they can be maintained in the community and basically take part in family life, it is important that resources would be put in place to enable that to come to pass. Although the report referred to by Deputy Yates says this is a good idea, the actual numbers involved are extraordinarily small so far.

For many of the same reasons that I opposed section 7 of the Bill, I also oppose the changes the Minister wants to bring about in this section. I am not saying that everybody who presents himself for boarding out should be subvented 100 per cent of the cost by the health board, however the Minister's alternative is too vague. I appeal to him to think again about it and to clarify his thoughts on how he will ensure that all those who are suitable for boarding out, and want to avail of it but cannot afford it will have that option open to them? Is it his intention that that option will be available to them? How will he bring this to pass? Clearly, if this amendment is carried it will not be achieved, for that reason I will oppose the Minister's amendment No. 66.

Dr. O'Hanlon

Section 11 is based on a report of the National Council for the Aged, which Deputy Yates referred to and it is updated by the recommendations of the report The Years Ahead. The Bill provides for the first time a statutory framework for boarding out and I am sure will encourage a greater use of this facility.

I want to make it clear that there is no change in our intention in relation to payment. All existing schemes provide for a contribution from the person boarded out and in effect we are building on the status quo. A typical contribution at present would be in the region of £20 from the person who is being boarded out with another £25 coming from the health board. This is a reasonable arrangement because for the most part the elderly people receive the old age pension.

The amendment is really only a drafting amendment and is intended to clarify what was the intention. For example, section 11 (1) states:

A health board may in accordance with regulations under this section make and carry out, at the expense of the board, an arrangement for the boarding out in a private dwelling...

It could be construed that the health boards were expected to pay everything but equally, it could be construed that the board were obliged only to pay part of it, so it is not as clearly defined as we would like and we have tabled an amendment purely to clarify the position. It is a drafting amendment and there is no change in our approach or there is no change in what was intended.

Mr. Sherlock

Are amendments Nos. 66, 67 and 68 being taken together?

An Ceann Comhairle

No, amendments Nos. 66 and 68 are being taken together.

Mr. Sherlock

This is a new concept and one would want to be very wary of it. In my experience quite recently, when the local authority were allocating houses in a particular area the management decided that one such dwelling would be retained for the purpose of accommodating the health board. I am a member of a health board and I am also a member of the community care committee of the health board. I attend meetings in which I have an interest but at no time did I ever hear a debate on how this new concept was to be applied and whether those in institutional care were to be taken out and given an opportunity to live in a place other than a home or institution. Secondly, it should be stated whether this accommodation would be inside or outside the functional area. If it is outside the area it would mean the person would be far removed from his locality and his relatives. This provision should not be implemented without there being an investigation as to how the system will operate, what accommodation will be provided and so on. I am very wary of the amendments.

Mr. Yates

From my knowledge, only a limited number of health boards operate this system and I do not think the Southern Health Board are one such board. I hope Deputy Sherlock will not say this is a bad system because the Southern Health Board do not operate it. In the case of a person who is, say, 70 years of age and is relatively healthy but has bad arthritis and cannot live alone in the community, it is essentially a good thing that that person can stay in his home and have his meals provided, his bed made and so on. In Dublin the nursing home may be only five minutes drive away, whereas in rural areas it could be 20 miles away and therefore the people lose contact with their community. The boarding out system is totally under-developed in this country. In Belgium, for example, the system has been developed very successfully. I would go further and say that the system should be encouraged even on a pilot basis. That is why I propose a new section 12 in amendment No. 75. It proposes that a health board shall promote the option of boarding out for dependent persons, as an option between institutional care and subvention in a nursing home.

I have my doubts when the Minister says this provision is just technical. Amendment No. 71 deals with the amounts of payments by the health boards to persons in respect of boarding out and the fixing of the maximum number of persons who may be boarded out; obviously there has been some element of rethink about the financial cost involved and someone has given advice. I think we might be able to nip this in the bud. Sometimes the Minister's first thoughts might be his best and most generous thoughts. I would be inclined to press this matter a little more firmly.

Mr. Howlin

I am at least as suspicious as Deputy Yates in regard to this matter. Generally I take what the Minister says at face value — as the Minister knows I am a very trusting individual — but it is the vagueness of the section if it is amended as proposed by the Minister that concerns me. Basically he is taking out all the key requirements, the "thou shalt" as it were, and is replacing them by a new framework of "maybes". I do not think the health boards will have adequate resources to do what the Minister proposes in this section. I would like the Minister to clearly state his attitude in relation to the funding of people who are boarding out, if he accepts that boarding out is a good idea, that it should be a definite aspect of the geriatric care provided by health boards and that there will be many individuals who will need full maintenance in a boarding out environment. Will he ensure that all those who require full maintenance will get it and what concrete mechanisms will he put in place to ensure that that is provided?

Dr. O'Hanlon

The philosophy of this Minister and the Government is that ideally people should be able to live out their lives in their own homes and, where necessary, there should be support systems in place by the health boards. Indeed this is happening to an increasing extent as witnessed by the improvements following this year's budget. Where people cannot live out their lives in their own homes — I have often referred to this matter — the great carers in Irish society are their families who are also entitled to some support. Again that was recongised in the budget and a number of these people qualify for the new carer's allowance which is being implemented by my colleague, the Minister for Social Welfare, Deputy Woods. The health boards have obligations to ensure support systems. There is a community care systems in place and it is being developed. Naturally we would like to see it developing more rapidly but certainly it is going in the right direction.

I referred earlier today during Question Time to my desire to see more places available for respite care whereby the elderly would be placed in care for a few weeks, perhaps during the summer, so that the carers would be able to go on holiday. These are very desirable developments. The vast majority of our elderly either live in their own homes or with their families and that is something we should cherish. It is what the elderly want and indeed what each of us would like when we are old.

If, for one reason or other, people are not able to live in their own homes or with their families, the next recourse is to living in the community. The local authorities provide homes for the elderly in the community and that is very desirable. Boarding out has taken place to a limited extent. As I have said, it is very desirable that the elderly who are unable to live in their own homes or who have no families to look after them are able to live in their own community, and boarding out is ideal for people to whom it is suited. Obviously some people are dependent in the sense that they need nursing home care, while others are able to look after themselves but for one reason or other cannot continue to live in their own homes. I would be very supportive of boarding out for the persons I have described.

As regards the subvention, at present the elderly pay £20 out of their old age pension and the health boards pay £25, and I think that is a fair balance. Where none of these facilities are available to an elderly person for one reason or other — perhaps because of their infirmity — long-stay residential care in a nursing home or in one of the State's homes for the elderly would be appropriate but that should be a last resort because most of us would want to live in our own community and with our own people for as long as possible. We are fully supportive of boarding-out. It is important that we should and I am glad that for the first time we are legislating to put a proper structure on the boarding-out facility. The amendments I am proposing are purely drafting amendments to make more clear what was envisaged in the original text of the Bill. If Deputies read the original text — I do not want to go back over it again — they will see that it could be construed in one or two different ways. Is it not clear and in order to spell out what we envisage we are proposing these amendments.

Amendment put and declared carried.

An Leas-Cheann Comhairle

We now come to amendment No. 67 in the names of Deputies Yates and Garland.

Mr. Yates

I move amendment No. 67:

In page 10, subsection (1), lines 43 and 44, to delete "whether situated within or outside" and substitute "situated within".

This raises the question of whether boarding-out will be done by the health board within their jurisdiction or whether they will board-out elsewhere. It strikes me as being sensible that each health board should look after their own jurisdiction. I am open to a contrary argument but I think the amendment is sensible.

Mr. Howlin

Obviously in any divide, whether it is a county divide or a regional divide, one may have people living on the periphery and it might be appropriate that somebody would be boarded out in a neighbouring village which may transgress the line of a health board region. It is probably sensible to allow a person being boarded out — if the person so desires and if it is the most appropriate and most suitable thing to do — the scope to move across a county line or a boundary if that is in the best interest of the person being boarded out.

Dr. O'Hanlon

I agree with Deputy Howlin. I have already outlined how we would like to see the care of the elderly proceed and people living in their own community. It would be wrong if in this legislation we were to preclude a board from providing financial assistance to somebody who, for one reason or another, might be boarded outside their area.

Amendment, by leave, withdrawn.

Dr. O'Hanlon

I move amendment No. 68:

In page 10, subsection (1), line 45, after "applies" to insert "and the arrangement may provide for the payment of all or part of the costs of the boarding out by the board".

Amendment put and declared carried.

Mr. Sherlock

I move amendment No. 69:

In page 10, subsection (1), line 45, after "applies" to insert "subject to the consent of the person concerned".

The section which the amendment proposes to amend is section 11 (1) which reads:

A health board may in accordance with regulations under this section make and carry out, at the expense of the board, an arrangement for the boarding out in a private dwelling, whether situated within or outside the functional area of the board, of a person to whom this section applies.

I think it is reasonable to insert after "applies" the words "subject to the consent of the person concerned".

Mr. Howlin

Hear, hear.

Mr. Sherlock

I think that is a reasonable amendment. I will not say anything further.

Mr. Yates

Notwithstanding all I have said in favour of boarding-out, of course I would not envisage any circumstance where it would be done against the wishes of the person. Therefore, it is important that this is done in a positive way so that there could not be allegations. I am aware that there are people in nursing homes who do not like the idea of boarding-out. To stop this getting off on a wrong footing I support this amendment.

Dr. O'Hanlon

This amendment is not necessary because the Bill already provides for this in section 11 (5) in the definition of "person to whom this section applies" that it is the person who consents to be so boarded out. This subsection encompasses the aim of the amendment.

Mr. Howlin

Can the Minister say that again?

Dr. O'Hanlon

Perhaps I should read subsection (5):

In this section "person to whom this section applies", in relation to a health board, means a dependent person whose usual place of residence is in the functional area of the board and who, in the opinion of the board, ought, having regard to his means and circumstances, to be boarded out under this section and who consents to be so boarded out.

That takes care of the point raised by Deputy Sherlock.

An Leas-Cheann Comhairle

I assume the point the Deputy is concerned about is already provided for.

Mr. Sherlock

I accept that.

Mr. Yates

I would like to raise a small point in relation to what we said about a person within or outside the health board area. Surely subsection (5) — which the Minister has just read out — is contradictory. The only person to whom it can apply is the person whose residence is within the functional area of the health board. That is as restrictive as what I was not allowed to put in.

Dr. O'Hanlon

That refers to the normal place of residence being inside the health board area. It does not preclude the health board from boarding them out outside the health board area.

Mr. Yates

Someone in the South-Eastern Health Board could be boarded out in the Eastern Health Board area and the South-Eastern Health Board would pay for it.

Amendment, by leave, withdrawn.

Amendment No. 70 not moved.

Dr. O'Hanlon

I move amendment No. 71:

In page 11, subsection (2), to delete lines 3 to 5 and substitute the following:

"(iii) the making of payments, and the amounts thereof, by health boards to persons in respect of the boarding out with them of persons under this section,

(iv) the fixing of the maximum number of persons who may be boarded out in a single dwelling under this section, and".

The purpose of the amendment is to allow the regulations which govern boarding-out to provide for a maximum number of persons who may be boarded out in any one household. The draft boarding-out regulations which have been circulated provide for a maximum of four persons in a household and also that the number to be accommodated in shared rooms must not exceed that agreed with the health board. The aim is to preserve the home-from-home quality of boarding-out.

Amendment agreed to.

Mr. Howlin

I move amendment No. 72:

In page 11, subsection (3), line 21, to delete "a person is" and insert "two persons or less are".

I am seeking clarification because I am not sure what is the Minister's intention in subsection (3) which states:

A dwelling in which a person is boarded out under this section shall be deemed, for the purposes of this Act, not to be a nursing home.

Does that mean once a person is boarded-out, it does not matter how many there are in the nursing home it would not be deemed to be a nursing home and it would not come under the regulations we have enacted here or is it that only one person can be boarded out. Either interpretation would be extreme. If a person is boarded out in a house, no matter what other activities are going on in the house, it could not come within the scope of the regulations; in other words, there could be a house operating as a nursing home which would take in someone to be boarded-out in a section of it. If say, it was a family home with an extension that was a nursing home would it be precluded from being encompassed under the terms of this legislation? Alternatively, if two people were boarded out to the house — or four as envisaged in the Minister's regulations — would that not come under the terms of this legislation? I am seeking clarification on that point and perhaps the Minister would set me straight at this late hour.

Dr. O'Hanlon

Boarding out is intended as an approach for the frail, elderly persons who cannot live completely independently and it enables them to live in their own community. I have proposed an amendment to subsection (5) which will clarify the role of boarding-out as not catering for dependent persons. In the draft boarding out regulations the maximum number of persons who can be maintained in a household is four; normally it would be one to two persons, as is the case at present. By setting the maximum a little higher it permits flexibility where necessary. I believe it must remain a flexible approach.

Mr. Howlin

Do I understand that where the subsection says "a person" it can apply to any number of persons? Subsection (3) states:

A dwelling in which a person is boarded out under this section shall be deemed, for the purposes of this Act, not to be a nursing home.

If more than one person is involved is it deemed to be a nursing home or is the phrase "a person" a legal phrase that encompasses any number of persons?

Dr. O'Hanlon

It is a legal phrase in legislation.

Mr. Yates

I was asked to put down a similar amendment. Nursing Homes have expressed a fear that four, five or six people will be boarded out in private dwellings where the people concerned will provide the same services as those provided in nursing homes but under the heading of boarding out and therefore will be exempt under this Bill. The nursing homes want the number restricted to two at most. The Minister has mentioned a figure of four, so I think the matter needs to be clarified. There is an element of competition here.

Mr. Howlin

The Minister has indicated that "a person" is a legal phrase which can mean any number of people.

Dr. O'Hanlon

It is used in legislation.

Mr. Howlin

Deputy Yates has expressed a fear that people will resort to subterfuge to evade the impact of the legislation, in other words, people will be cared for not in nursing homes but in boarding out homes.

Mr. Yates

May I suggest to the Minister that he consider inserting the words "four people or less" on Report Stage?

Mr. Howlin

I have suggested two persons.

Mr. Yates

If it is the Minister's intention to stipulate that four persons will be the maximum, he should provide for this in legislation so that we do not end up in a position where there will be nursing homes and boarding out homes.

Dr. O'Hanlon

I will examine that suggestion before Report Stage. It should be made quite clear that there is a definition of what constitutes a nursing home and what constitutes boarding out. It comes down to a question of the dependency of the person concerned and their needs. Naturally, we want to ensure that the premises where people are being boarded out does not become a cheap nursing home. That is not our intention and the differences in the requirements and criteria with regard to admission to a nursing home and boarding out in a private dwelling are clearly defined. Draft boarding out regulations have been circulated.

Mr. Howlin

Given that the Minister has agreed to look again at the section I will withdraw the amendment.

Amendment, by leave, withdrawn.

Dr. O'Hanlon

I move amendment No. 73:

In page 11, subsection (5), line 27, to delete "dependent".

Amendment agreed to.

Mr. Yates

I move amendment No. 74:

In page 11, subsection (5), line 31, after "boarded out." to insert "Nothing in the operation of this section shall affect a person's eligibility for assistance under section 7 of this Act.".

The undertones to this amendment are the same as those underlying the previous amendment. Nursing homes have expressed a fear that if more and more people are boarded out fewer people will seek access to nursing homes. Therefore I suggest that nothing in the operation of this section should affect a person's eligibility for assistance under section 7 of the Bill. Furthermore, a person who has been boarded out should not be precluded from being considered by the geriatric assessment team in the area if they wish to gain access to a nursing home. This would safeguard the rights of those who at one time were happy to be boarded out but who are no longer so happy.

Dr. O'Hanlon

I do not think this amendment is necessary because there is nothing in the Bill which would preclude a person who has been boarded out from being assessed subsequently for a nursing home subvention. There are no preconditions attached to an application for subvention under section 7 of the Bill.

Mr. Howlin

While I fully accept there is nothing in the Bill which would preclude a person from being assessed it is important to allay people's fears and to make things clear — that is what we should be about in forming legislation — that this positive statement be included. I ask the Minister to think again and I am sure he would have no objection to including it. He has already indicated that it is not necessary — a phrase we have heard frequently tonight — but I would ask him in this instance to think again as it is necessary to state positively that someone who has been boarded out has the option to change should they so wish. I ask him to include the amendment as it is an excellent one.

Mr. Yates

The Minister has used the phrase "is not necessary" many times but with respect that is only his opinion. A CEO might well say to Mrs. Murphy that he has met his obligations by providing her with boarding out accommodation while the person who may say to the director of community care that he would prefer to go to a nursing home might be told in reply that the director of community care has discharged his responsibilities. Therefore it is important, without interfering with the services being provided, that the position be made quite clear and that this amendment which would draw a demarcation line between the two, be inserted. I intend to press the Minister on this point because, at worst, it does not infringe on what he is trying to do while at the same time the health boards, to whom the Bill will be circulated and who will seek to implement it in a few months' time, would know exactly where they stand.

Dr. O'Hanlon

There is a general principle that it is wrong to put sections in legislation if there is no need for them. If the Deputy has found anything in the legislation which would preclude the board from giving assistance or preclude the person from applying for assistance under section 7 of the Bill then I would certainly be glad to look at it but there is nothing in the legislation which precludes a person from applying for a subvention under section 7. Indeed, a very good boarding out scheme is already in place in County Mayo where the board assume full responsibility for ensuring that accommodation is available for the person no longer considered suitable for boarding out.

There is also the question of the category of person suitable for boarding out and the category of person who should have a nursing home place available to them. There is an obligation on the board to ensure that they are not grant aiding a person in a boarding house who ought to be in a nursing home and if a person is a dependent person, within the meaning of this Bill, there would be an obligation on the health board to find a place for them in a nursing home rather than in a boarding house. That person would be fully entitled to apply for a subvention under section 7 of the Bill. Therefore I see no reason why we should consider inserting this amendment in the Bill.

Mr. Sherlock

I have listened to the points made for and against inserting the amendment and while I do not want to adjudicate on the matter it seems reasonable that we should make provision that nothing in the operation of this section should affect a person's eligibility for assistance under section 7. Subsection (5) states that the person to whom this section applies, in relation to a health board, means a dependent person whose usual place of residence is in the functional area of the board, and who, in the opinion of the board, ought, having regard to his means and circumstances, to be boarded out under this section and who consents to be so boarded out. It is good that such a reference is contained in the Bill. There is a danger where a person does not give his consent that somebody will get fairly thick and say that they have discharged their obligations and for this reason I support the amendment.

Mr. Yates

The Minister asked me to indicate if I found any provision in the Bill under which someone who has been boarded out would lose their rights under section 7 of the Bill. I remind him of the first sentence in section 7 (1) which reads: "Where, following an assessment by a health board of the dependency of a dependent person and of his means and circumstances, the health board is of opinion that the person is in need of maintenance in a nursing home...". The health board could well argue that the assessment of the dependency of the person meant the person was suitable for boarding out and not suitable for going into a nursing home, that it is entirely at the discretion of the health board and that the health board would be quite within their rights to say, "This assessment led us to section 11 which entitles us to press this for you". Therefore, you could have a dispute. In those circumstances it could well be necessary to have a statement to the effect that section 11 of the Bill provides that boarding out does not take one iota from a person's right to be considered for a nursing home. This is more than an academic exercise and it is very necessary to put it in. Time is running out rapidly. Therefore I suggest, Sir, that you put the question, unless the Minister is prepared to reconsider in view of the strong arguments put to him.

Dr. O'Hanlon

No, I am not prepared to reconsider. In his last contribution the Deputy is suggesting that if this amendment was inserted it would provide the opportunity for the person to transfer from a boarding house to a nursing home. That is not the case. The Deputy stated that the board might decide that the person should remain in the boarding house. If the board made that decision, then being eligible for assistance under section 7, whether written into the Bill or not, would not improve the person's position. The person would have to be eligible for the nursing home before section 7 could come into play.

Mr. Yates

If some genius, some cost control manager in the health board said, "It is only £25 a week to put someone on boarding out and the subvention is £50 a week; we could save £X00,000 by switching people from nursing homes to boarding out," this would be the greatest thing that ever happened and it would make financial sense from that person's point of view. It could well be argued that there would be a cost implication in one option over another. Putting forward a positive option on boarding out would not take from someone's established right to a nursing home subvented bed.

Dr. O'Hanlon

The amendment would not redress that situation if it were to come about, but there is an obligation on the board to have regard to this legislation and a person who should be in a nursing home cannot be placed in a boarding house. That will be the legislation when this Bill is enacted. The health boards will be the first to have to obey the legislation and I have no doubt they all will do so.

Amendment put and declared lost.

Section 11, as amended, agreed to.

NEW SECTION.

Mr. Yates

I move amendment No. 75:

In page 11, before section 12, to insert the following new section:

"12.—A health board shall promote the option of boarding out for dependent persons, as an option between institutional care and subvention in a nursing home.".

I have already argued in favour of this. It is a positive assertion in favour of boarding out, and health boards should be so aware. I hope it is necessary.

Dr. O'Hanlon

A number of boards already have boarding out schemes in operation. I have referred to the Western Health Board. The inclusion in the Bill of the provisions concerning boarding out will allow health boards to use the boarding out option more extensively. It is a form of support for the frail elderly as recommended in The Years Ahead — A Policy for the Elderly. It is an option which can be used by health boards as they consider appropriate. Boarding out is not an option between institutional care and subvention in a nursing home. It is an option of care to maintain a frail but elderly person in a domestic environment and in the person's own community. I do not consider this amendment should be accepted.

Mr. Howlin

Not for the first time today I agree with the Minister. Boarding out is a good option but it will not have a huge impact around the country. I would be reluctant to allow legislation to have enshrined in it an obligation on health boards to promote a particular option. Many people simply will not suit boarding out. It should be available as an option for those who want it, who feel it is desirable and can fund it, but I favour the Minister's view that we should not enshrine the positive promotion of it in the legislation.

Amendment, by leave, withdrawn.

Section 12 agreed to.

SECTION 13.

An Leas-Cheann Comhairle

Amendment No. 76 in the name of An tAire. Amendment No. 77 is related, so we will take amendments Nos. 76 and 77 together for discussion. Is that agreed?

Mr. Yates

Agreed.

Dr. O'Hanlon

I move amendment No. 76:

In page 11, subsection (1), line 39, to delete "an" and substitute "a summary".

It clarifies that prosecutions for offences under the Bill taken by the CEO of a health board are summary offences only.

Mr. Yates

Agreed.

Amendment agreed to.

Dr. O'Hanlon

I move amendment No. 77:

In page 11, subsection (1), line 41, after "situated" to insert "or, as the case may be, the health board by which the arrangement for the boarding out to which the offence relates was made and carried out".

Amendment agreed to.

An Leas-Cheann Comhairle

Amendment No. 78 in the name of Deputy Yates. Amendment No. 79 is an alternative so we take amendments Nos. 78 and 79 together for discussion. Is that agreed?

Mr. Howlin

Agreed.

Mr. Yates

I move amendment No. 78:

In page 11, subsection (3), line 49, to delete "purporting" and substitute "delegated or appointed".

I am so anxious to say a few words on amendment No. 82 and time is running out, so I just formally move this amendment. Deputy Howlin has one similar.

Mr. Howlin

It is just a tightening up of the words. The argument has been made. I propose to delete "purporting" and substitute "delegated". The word "purporting" is very vague; "delegating" is clear, so we know who is in charge. It is a sharper use of words. I support the amendment in the name of Deputy Yates if mine is not reached.

Dr. O'Hanlon

The wording in the Bill is standard wording in a number of Acts at this time. If one were to delete "purporting" and substitute for it "delegated" or "appointed" it would place undue pressure on health boards to show that a person acting on behalf of the company was delegated or appointed in that capacity.

Mr. Howlin

In this regard, is whoever is met first assumed to be purporting to be in charge? It is very loose and vague if action is going to be taken. "Delegated" is clear. You know that the person is delegated in the charge. I do not want to put undue onus on the health boards, but is the Minister satisfied and can he assure us that the present wording is adequate?

Dr. O'Hanlon

Yes, I am satisfied that the present wording is adequate. As I said, it is the wording used in a number of Acts and to my knowledge there has never been any indication that it did not do what it was proposed it should do in the legislation.

Mr. Yates

I am happy. I wish to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Howlin

I move amendment No. 79:

In page 11, subsection (3), line 49, to delete "purporting" and substitute "delegated".

Question, "That the word proposed to be deleted stand", put and declared carried.

Amendment declared lost.

Section 13, as amended, agreed to.

Section 14 agreed to.

Amendments Nos. 80 and 81 not moved. Section 15 agreed to.

NEW SECTION.

Mr. Yates

I move amendment No. 82:

In page 12, before section 16, to insert the following new section:

"16—The dependent persons as defined under this Act and their relatives shall have the right to make any complaint relating to their care or standards of facilities in a nursing home, as defined in this Act, to the health board for that area. The health board shall investigate such complaints, advise the complainant of the outcome and make any conditions of the licence as is necessary to avoid a repeat occurrence of any such valid complaint.".

I feel very strongly about this amendment. Fundamental to this Bill, and I intend to press this matter, is that it is wrong that we should have "Today Tonight" programmes and current affairs programmes highlighting the problems in this area. It is very important that a set procedure be put in place as part of this Bill whereby relatives, patients and elderly dependent people have an opportunity to complain. A set procedure for the processing of complaints is fundamental to the working of this Bill and I would ask the Minister to accept the amendment. If not, I intend to press it.

Mr. Howlin

I strongly support the amendment and ask the Minister to accept it.

Mr. Sherlock

I, too, support the amendment. The dependants are entitled to redress of any grievance.

Dr. O'Hanlon

The question of complaints about standards of care is covered in article 8 in the draft regulations dealing with nursing homes. These regulations have recently been circulated. The regulations provide as follows:

The registered proprietor and the person in charge shall take into account a comment or complaint about conditions in the nursing home by a patient or the person acting on the patient's behalf and all complaints must be satisfactorily resolved without reprisal to any patient.

A patient in a nursing home or a person acting on the patient's behalf may make a complaint concerning a nursing home to the health board by which the nursing home has been registered and the health board shall investigate the complaint and report the outcome.

It is covered in the regulations as appropriate.

Mr. Yates

The regulations can be changed at the stroke of a pen without reference to the Dáil. It is so fundamental it should be part of the legislation.

Mr. Sherlock

Would the Minister be prepared to circulate the regulations?

An Leas-Cheann Comhairle

Deputies will appreciate that I must proceed in accordance with the order which requires that I put the following question:

That the amendment set down by the Minister for Health and not disposed of is hereby made to the Bill; in respect of each of the sections undisposed of, that the section is hereby agreed to; that the Title as amended, is hereby agreed to; and that the Committee reports that it has gone through the Bill and has made amendments thereto, and has amended the Title to read as follows:

An Act to make further provision in relation to nursing homes for dependent persons and, for that purpose, to provide for the registration by health boards of such homes, to provide for the boarding out by health boards of dependent persons and to provide for connected matters.

Amendment put.

The Committee divided: Tá, 72; Níl, 64.

Tá

• Ahern, Bertie.
• Ahern, Dermot.
• Ahern, Michael.
• Andrews, David.
• Aylward, Liam.
• Barrett, Michael.
• Brady, Gerard.
• Brady, Vincent.
• Brennan, Mattie.
• Briscoe, Ben.
• Browne, John (Wexford).
• Calleary, Seán.
• Callely, Ivor.
• Clohessy, Peadar.
• Connolly, Ger.
• Coughlan, Mary Theresa.
• Cowen, Brian.
• Cullimore, Séamus.
• Daly, Brendan.
• Davern, Noel.
• Dempsey, Noel.
• Dennehy, John.
• de Valera, Síle.
• Ellis, John.
• Fahey, Frank.
• Fahey, Jackie.
• Fitzgerald, Liam Joseph.
• Fitzpatrick, Dermot.
• Flood, Chris.
• Gallagher, Pat the Cope.
• Geoghegan-Quinn, Máire.
• Hillery, Brian.
• Hilliard, Colm.
• Hyland, Liam.
• Jacob, Joe.
• Kelly, Laurence.
• Kenneally, Brendan.
• Kirk, Séamus.
• Kitt, Michael P.
• Kitt, Tom.
• Lawlor, Liam.
• Lenihan, Brian.
• Leonard, Jimmy.
• Leyden, Terry.
• Lyons, Denis.
• Martin, Micheál.
• McCreevy, Charlie.
• McDaid, Jim.
• McEllistrim, Tom.
• Morley, P. J.
• Nolan, M. J.
• O'Connell, John.
• O'Dea, Willie.
• O'Donoghue, John.
• O'Hanlon, Rory.
• O'Keeffe, Ned.
• O'Leary, John.
• O'Rourke, Mary.
• O'Toole, Martin Joe.
• Power, Seán.
• Quill, Máirín.
• Reynolds, Albert.
• Roche, Dick.
• Smith, Michael.
• Stafford, John.
• Treacy, Noel.
• Tunney, Jim.
• Wallace, Dan.
• Wallace, Mary.
• Wilson, John P.
• Woods, Michael.
• Wyse, Pearse.

Níl

• Allen, Bernard.
• Barrett, Seán.
• Belton, Louis J.
• Boylan, Andrew.
• Bradford, Paul.
• Browne, John (Carlow-Kilkenny).
• Bruton, John.
• Bruton, Richard.
• Byrne, Eric.
• Carey, Donal.
• Connor, John.
• Cosgrave, Michael Joe.
• Cotter, Bill.
• Creed, Michael.
• Crowley, Frank.
• Currie, Austin.
• D'Arcy, Michael.
• Lee, Pat.
• Lowry, Michael.
• McCartan, Pat.
• McCormack, Pádraic.
• McGahon, Brendan.
• McGinley, Dinny.
• McGrath, Paul.
• Mitchell, Gay.
• Mitchell, Jim.
• Moynihan, Michael.
• Nealon, Ted.
• Noonan, Michael.
• (Limerick East).
• O'Brien, Fergus.
• O'Shea, Brian.
• Deenihan, Jimmy.
• De Rossa, Proinsias.
• Doyle, Joe.
• Dukes, Alan.
• Durkan, Bernard.
• Farrelly, John V.
• Ferris, Michael.
• Finucane, Michael.
• Flanagan, Charles.
• Gilmore, Eamon.
• Gregory, Tony.
• Higgins, Jim.
• Higgins, Michael D.
• Hogan, Philip.
• Howlin, Brendan.
• Kavanagh, Liam.
• Kenny, Enda.
• O'Sullivan, Gerry.
• O'Sullivan, Toddy.
• Owen, Nora.
• Pattison, Séamus.
• Quinn, Ruairí.
• Rabbitte, Pat.
• Reynolds, Gerry.
• Ryan, Seán.
• Shatter, Alan.
• Sheehan, Patrick J.
• Sherlock, Joe.
• Spring, Dick.
• Stagg, Emmet.
• Taylor, Mervyn.
• Taylor-Quinn, Madeleine.
• Yates, Ivan.

Tellers: Tá, Deputies V. Brady and Clohessy; Níl, Deputies J. Higgins and Howlin.

Amendment declared carried.

An Ceann Comhairle

May I ask when it is proposed to take Fourth Stage?

Dr. O'Hanlon

Next Tuesday, subject to agreement between the Whips.

Report Stage ordered for Tuesday, 12 June 1990.