This amendment was accepted in the Seanad. Instead of having the legislation refer to only one "person", it now refers to the plural, "persons". Clearly there will be a number of different persons involved in the multidisciplinary team. Members of the Seanad felt the use of the singular term "person" was inadequate and we were happy to accept the amendment.
Nursing Homes Support Scheme Bill 2008: From the Seanad.
The Dáil went into Committee to consider amendments from the Seanad.
Seanad amendment No. 1:
Section 7: In page 13, subsection (5), lines 6 and 7, to delete all words from and including "by" in line 6 down to and including "Executive)" in line 7 and substitute the following:
"by persons (who may be employees of the Executive)".
Seanad amendment agreed to.
Amendments Nos. 2 to 5, inclusive, and 8 and 9 are related and may be discussed together.
Seanad amendment No. 2:
Section 17: In page 22, lines 31 to 34, to delete subsection (2) and substitute the following:
"(2)(a) Where the Executive has received a request for payment of ancillary State support and the Executive is satisfied that it is appropriate that payment of such support be made, the Executive shall make an order in accordance with this section.
(b) The Executive shall not make a payment in respect of ancillary State support prior to the making of an order by the Executive charging the interest in the relevant chargeable asset with the secured amount.”.
Amendments Nos. 2 and 3 ensure the legal basis is explicit and beyond doubt and that the Property Registration Authority can make and register the charge. These amendments were tabled after a submission was received from the Property Registration Authority. The provisions are to ensure there is legal certainty, which the authority felt was desirable.
Amendment No. 4 is to ensure that, in keeping with the policy in the legislation, money can be recovered. Amendment Nos. 5 and 9 ensure the order can be released when the money is paid. Amendment No. 8 ensures the format of the receipt, in addition to the format of the application, can be prescribed by regulation. These amendments, which all refer to charging orders, are technical and were suggested to us by the Property Registration Authority.
These amendments are all we are discussing today. Will there be an opportunity to vote on the Bill as a whole?
One can vote only on the amendments.
While some of these amendments may appear innocuous, issues arise in respect of some of them, certainly amendment No. 4 on the mortgage issue. If a mortgage pre-exists the mortgage holder's entry into a nursing home and there are payments still due, will it be the first debt to be paid? This is not clear. One could be left with a property whose mortgage value exceeds the equity value, particularly in the current climate. If a patient who enters a nursing home passes away three years later and 15% of the fee has been paid up front, what will occur if that patient's property was worth €450,000 on his or her entering the nursing home but is only worth €250,000 at the time of his or her death? How will the bill be calculated in this case?
With the Acting Chairman's permission, may I make a few broader points? I am deeply unhappy with the Bill. Many of the issues we raised have not been addressed, particularly that of independent financial assessment. Issues arise over the valuation of patients' houses and assets. A person's bank shares, stock or dividends could be assessed as valueless at the time he or she enters a nursing home.
The issue concerning the rights of siblings at the time of application has not been addressed. I refer to siblings who may have been living together all their lives. A sister in such circumstances may have decided to stay at home to mind the house. Such arrangements are not uncommon in Irish society.
Two issues arise over capping, one of which pertains to capping in respect of the scheme itself. If money runs out, what happens to the assessments? The medical assessment is not independent and this has not been addressed. The HSE is to provide care and assess people for care. Will the threshold move up and down? Although we discussed this before, it is important to highlight the matter.
Age Action Ireland is distinctly unhappy about this Bill and the manner in which it is less than clear on the position of those who are charged for being placed in a hospital bed for a long period because there is not a more suitable place for them in the community. The issues associated with geography and the National Treatment Purchase Fund have not been addressed, including the National Treatment Purchase Fund's absolute right to omit or admit a particular nursing home from or to the scheme, depending on whether the home can arrange a reasonable fee. Far too much power is being given to the HSE.
I received an e-mail only yesterday from a lady who has been living all her life with her cousin. They live as sisters but a cousin is not regarded by the legislation as a connected person. The lady, to whom the house is left, believes she may well end up in a nursing home and precede her cousin in death, thereby leaving the cousin seriously discommoded and disadvantaged.
There is still no cap pertaining to assets. The sop that the Minister made in an amendment on an earlier Stage, referring to circumstances in the event of sudden illness, was totally turned over by the caveats in section 8, which bound a person to his or her business in that he or she must have been involved, for the greater part of his or her working days, in that business before taking ill. He or she must continue to be bound to the business for the foreseeable future. As I stated on Report Stage, the requirement that one be bonded to the land or a business smacks of feudalism.
The definitions are characterised by laxity. "Sudden illness" is not defined. Is it a stroke or cancer? How is it defined? Is it of sudden onset and, if so, what does this mean? Is it the last element of a well-known illness, multi-infarct dementia? In this case a patient may be managing the illness but finally receives the small insult to the brain that changes his or her circumstances. I am deeply unhappy about all these issues and am of the view the Bill must be opposed. If this is only opportunity afforded me to do so I will vehemently oppose amendment No. 4 and unless some concessions are given on it amendment I will press to a vote.
I do not have difficulties with some of the technical amendments in this group but I have concerns about amendments Nos. 2 and 4. The time to debate this legislation is limited and we spent a great deal of time engaging with the Minister on the earlier Stages in the Dáil but this is our first opportunity to discuss these amendments from the Seanad.
The Minister said that these further amendments have been tabled at the suggestion of the Property Registration Authority. What legal advice has she received on them? I presume she sought and received legal advice because they raise tricky legal and constitutional issues particularly in respect of amendment No. 4. It states that the HSE "may" but the implication is that any court of competent jurisdiction can, in accordance with the legislation, award money to the HSE in respect of ancillary State support for properties which are subject to a mortgage.
I am not a legal expert — none of us here is — but that appears very complicated in respect of property rights and the Constitution. It is even more complicated for a family farm. On Committee Stage many members of the Oireachtas Select Committee on Health and Children raised concerns about the family farm and this legislation. The problem also affects the family home and property in general because property involves complicated family relationships. If one family member must go into long-stay care, whether in a public or private bed, it appears that this ancillary State support gets first call on any money available. I may not be interpreting this correctly but the legislation seems to intend that this money will be paid before anything else is paid or settled or anybody else receives his or her share of the property, or the mortgage is paid.
I am also concerned about amendment No. 2 because it states that no ancillary State support will be paid out until such time until the property has been lodged as security for the charges. I am not sure what legal and constitutional issues arise but generally speaking when there is a problem about property after a death people have equal rights to whatever money is available. This amendment seems to intend that the ancillary State support grant will have a greater right than others to recoup money.
We have expressed our general concerns about the Bill on its various Stages. We are particularly concerned about the cap on resources. What happens for example, if somebody qualifies for nursing home support who has also applied for ancillary State support and the process of claiming rights on the property commences but the money in the general part of the scheme has run out for that year? The person may not be able to exercise his or her right because it is curtailed by the lack of money.
What is the general policy on long-stay beds? There is a greater dependence on the private sector and a growing number of private nursing homes, many of which benefit from tax breaks. When the Select Committee on Health and Children dealt with the Estimates it learned that the 2008 target for long-stay public beds had not been reached. Under this legislation there will be a greater dependence on the private sector and I have a fundamental difficulty with that move. I would like an assurance that public policy on health care will be to maintain and grow the number of public long-stay beds in accordance with the 2001 strategy document, part of which commits to increasing not only acute hospital beds but also long-stay beds.
I share Deputy Reilly's concerns about assessing the value of the property and ensuring that it is fair. Property values go up and down and have varied widely in the past year. Will the Minister clarify how that will affect the ancillary State support grant when it comes back from the property?
These are our main concerns about these amendments but we have more general concerns about the Bill which we have already expressed. I would be slow to pass amendments such as these without being certain that those legal difficulties do not exist and that we are protecting the rights of the person who needs the long-stay beds and of all the family members who have an interest in the family property. I too am particularly concerned about amendment No. 4.
There seems to be some misunderstanding. Deputy Reilly's example could not happen. If one does not own the property there is no question of the HSE being in a position to make a charge against that property. If, for example, the property is 80% mortgaged that is a priority. At the time of registration the priorities are dealt with. At any time if somebody's financial circumstances change or the property values change that can be reassessed. For example, where dividends from bank shares form part of one's income and banks do not pay out dividends, as they have not done here recently, that would greatly affect one's income stream but that can be reassessed at any stage.
The Irish Farmers Association has genuinely and warmly welcomed the changes we have made. I met it recently and what applies to farms applies equally to other businesses. It is not exclusive to farms but the case was initially put forward because of concerns in the farming community and among its representatives.
In respect of the National Treatment Purchase Fund, we are going over the main provisions of the Bill. I am happy to do so. The National Treatment Purchase Fund was given the remit because it is independent of the HSE. An organisation independent of the organisation charged with supporting and providing public health services would be responsible for procuring from the private nursing home sector. It is generally acknowledged that it has a good track record in this regard.
To be able to participate in the scheme, which is voluntary, the nursing home must be approved from the financial cost point of view by the National Treatment Purchase Fund. The taxpayer will fund 70% to 80% of the cost of this care throughout the country and the purpose of these provisions is to ensure that we get high quality and reasonable value for money. The new regulations come into effect next week. The new independent inspectorate starts on July 1, which is next Wednesday, and from here on public and private nursing homes will be inspected on the same basis.
With regard to Deputy O'Sullivan's query on capacity, this year 790 new long-term beds and 317 replacement beds will come on stream. Much of the investment over the past two years has been to upgrade current facilities and, in many cases, substantially reduce the number of beds because as Deputies are aware, many of our long-stay facilities are 120 years old. They are former workhouses and totally unsuitable to the standards we are entitled to expect in 2009. A huge amount of the investment is in replacement, which often leads to a substantial reduction in the number of beds. That is important for the quality of life of the residents and so that we meet the standards that are now the law. Existing facilities have a number of years to meet those standards.
If it was not for the participation of the private nursing home sector and the provisions introduced by Deputy O'Sullivan's party colleague and former Minister for Health, Deputy Brendan Howlin, in 1993, when nursing home subvention for the private sector first came into operation here, we would have been in a very difficult situation because the vast majority of older people in long-term care — I believe the figure is 13,000 or 14,000 — are in facilities funded by private providers.
The concern of the State has to be the financial supports that we give and at present 90% of the care costs in the public sector is paid by the Exchequer or those for whom a bed has been procured in the private sector. Those who had to procure their own beds must pay on average 50%, 60% or 70% of the cost and that is grossly unfair and inequitable. The purpose of the fair deal is to bring equity to those situations.
I accept that some Deputies would prefer all of the care to be paid for, there are very few countries if any where long-term care is treated on the same basis as acute care. I know those who represent older people and some geriatricians have concerns about the fact that we will put a charge against the home of the older person where they have ownership or part ownership of the home. However, unless we do so we will not be able to introduce this equitable scheme and, as I stated, very few countries treat long-term care the same as acute care and if people live at home they have care costs.
Resources are capped and, as I stated on many occasions in this House and regardless of who is or has been in this position, there was never unlimited resources and there never will be. No country in the world has unlimited resources. The resources are capped but we believe the Estimates we have made to begin the operation of the scheme in the autumn of this year are realistic to cover the demand.
The people who speak to me must be different to those who speak to Deputy Reilly; we get more calls on this issue from family members of older people in care than on any other issue. This morning we received calls from people wondering when it will happen and when will it be passed.
Does the Minister receive calls from Age Action Ireland?
Yes and on Second Stage I acknowledged that it has some reservations about the charge on the home. However, at present people are forced to sell their homes and run down their assets to pay for their care. This ends all of that and creates an equitable situation. Perhaps in an ideal world we would love to do some things differently but this will provide a radical change to how long-term care is supported and it is an important measures. With regard to connected persons, on Committee and Report Stages in this House we made a change to include siblings so the sister relationship mentioned by Deputy Reilly will be covered under the definition of connected persons.
Specifically on the amendment, the property registration authority wanted to make it clear and put it beyond doubt that a charge can be made; it is a legal technicality and we took the advice of the Attorney General on the matter. The purpose of Seanad amendment No. 4 is to ensure there are no technicalities to prevent the HSE being able to have its money returned to it and the reference to "mortgage" is to the ancillary loan. There is no question of this loan, when it is registered, coming ahead of other mortgages on the House or whatever the case may be. Seanad amendments Nos. 5 and 9 are tidying up amendments to bring more closely together matters in various sections of the Bill. Seanad amendment No. 5 removes the reference to the release of charging orders from section 17(14) while Seanad amendment No. 9 ensures the relevant reference is reflected instead in section 28. It is a technical legal tidying up arrangement.
Why was it necessary to include Seanad amendment No. 4? I assume that if a debt is owed to anybody that he or she is free to go to court and have the debt paid in so far as it can be paid. In her initial contribution the Minister stated that it is the policy that loans be repaid; of course it is the policy that loans be repaid. However, it is also the policy in the banking sector that loans be repaid but many people are not repaying their loans at present and it is costing the taxpayer a fortune as a result. There should not be any need to include a stronger ability to get the money back in the case of elderly people in long-stay beds as than to get money back from people who borrowed from banks in any other way.
What is the effect of the words, "as a simple contract debt in any court of competent jurisdiction"? Does it mean that somehow or other the HSE has a prior claim on money to anybody else who might have a claim with regard to a deceased person? Perhaps I did not express it very well but that was one of the questions I asked in my initial contribution. There seems to be a stitching-in of the HSE getting its money before anybody else who may be as equally entitled or equally in need of the money when somebody is deceased. I am concerned that other people may have an equal right but a greater right is being conveyed on the HSE which, generally speaking, one cannot do with regard to property rights.
I appreciate the Minister commenting on the NTPF but the problem is whether there is an appeals process or an independent arbitrator in a case where there is no agreement on a fee between a nursing home and the NTPF. There is no cap on the assets or no recognition for a case where one of two or three siblings who have lived together on a farm for all their lives goes into care for ten years and accumulates a bill of €300,000 and to pay it the farm must be sold. The value of the farm may have increased or decreased, we have seen huge variations in land prices.
There is no regard for somebody with a rightful expectation of inheriting the farm, for example a nephew who worked on it. The same goes for business, as this is not just related to farming, where the relevant elderly people live over the business and a nephew or niece runs the business below, have an expectation and is remunerated by the people concerned with that in mind. Many stories have been recorded in well-written novels in this country of the disappointment and hardship people suffer when expectation is not met. This could turn into a nightmare for some people. If the Minister were able to offer some comfort on the issue, the Fine Gael Party would be less inclined to object to it.
I am not able to give the Deputy any comfort or expectation. I recently met a nursing home owner who, having cared for an elderly gentleman for a number of years without payment, lived on the expectation that, on the death of the said individual, the nursing home would be able to reclaim its charges. The home owner later discovered, however, that the person in question left his farm and property to an animal welfare organisation, if memory serves me correctly. I cannot legislate for expectation.
I am more concerned about cases involving relatives who work on the individual's farm.
The Deputy makes a legitimate point. This is the reason we introduced exclusions for farms and businesses. We are trying to encourage the early passing on of businesses and farms to a younger generation. This has been the policy of the farm organisations for many years and it is the reason they welcomed the five-year rule on when one starts to tick the financial box against a farm or business. This cannot happen, however, if a person suddenly falls ill at a relatively young age, can no longer run the farm, requires someone else to run it on his or her behalf and needs care. A person aged 45, 55 or even 60 years cannot reasonably anticipate such an eventuality and an exception has been made for such circumstances.
On Deputy O'Sullivan's point, the relevant provision has been introduced to ensure the Health Service Executive is able to get its money back through contract law, irrespective of whether the mortgage is secured. That is not to say the HSE will have a prior claim. Priority is decided at the time the loan is advanced and registered. For example, a mortgage on a property will clearly have first priority. Moneys owed elsewhere that are registered will be the next priority and so forth. The priority is decided at the point of registration and the HSE claim does not supersede other entitlements.
I emphasise that the scheme is voluntary. The HSE will advance an interest-free loan, known as the ancillary State support, to pay for care. It is capped at three years and, in the case of a couple, the maximum payable is 7.5% of the value of the property. The property's value can be reassessed at any stage if it is in the interests of the care recipient or their representatives to do so and I have no doubt revaluations will occur. When the legislation was being drafted it was assumed property values would increase, whereas the opposite has occurred.
Seanad amendment agreed to.
Seanad amendment No. 3:
Section 17: In page 23, subsection (7), line 13, to delete "of such land." and substitute the following:
"of such land, and the Property Registration Authority shall on application being made to it register such order affecting the land concerned.".
Seanad amendment agreed to.
Seanad amendment No. 4:
Section 17: In page 23, lines 14 to 17, to delete subsection (8) and substitute the following:
"(8) Any amount paid by way of ancillary State support, whether or not it is the subject of a mortgage arising by reason of this section, may, without prejudice to any other power in that behalf, be recovered by the Executive as a simple contract debt in any court of competent jurisdiction.".
Seanad amendment put.
The Committee divided: Tá, 67; Níl, 58.
Tá
- Ahern, Dermot.
- Ahern, Michael.
- Ahern, Noel.
- Andrews, Barry.
- Andrews, Chris.
- Ardagh, Seán.
- Aylward, Bobby.
- Behan, Joe.
- Blaney, Niall.
- Brady, Áine.
- Brady, Cyprian.
- Brady, Johnny.
- Browne, John.
- Byrne, Thomas.
- Calleary, Dara.
- Carey, Pat.
- Collins, Niall.
- Conlon, Margaret.
- Connick, Seán.
- Cregan, John.
- Cuffe, Ciarán.
- Cullen, Martin.
- Curran, John.
- Dempsey, Noel.
- Dooley, Timmy.
- Finneran, Michael.
- Fitzpatrick, Michael.
- Fleming, Seán.
- Gogarty, Paul.
- Grealish, Noel.
- Hanafin, Mary.
- Harney, Mary.
- Hoctor, Máire.
- Kelleher, Billy.
- Kenneally, Brendan.
- Kennedy, Michael.
- Kirk, Seamus.
- Kitt, Michael P.
- Kitt, Tom.
- McEllistrim, Thomas.
- McGrath, Mattie.
- McGrath, Michael.
- Mansergh, Martin.
- Martin, Micheál.
- Moloney, John.
- Moynihan, Michael.
- Nolan, M. J.
- Ó Cuív, Éamon.
- Ó Fearghaíl, Seán.
- O’Brien, Darragh.
- O’Connor, Charlie.
- O’Dea, Willie.
- O’Flynn, Noel.
- O’Hanlon, Rory.
- O’Keeffe, Batt.
- O’Keeffe, Edward.
- O’Rourke, Mary.
- O’Sullivan, Christy.
- Power, Seán.
- Ryan, Eamon.
- Sargent, Trevor.
- Scanlon, Eamon.
- Smith, Brendan.
- Treacy, Noel.
- Wallace, Mary.
- White, Mary Alexandra.
- Woods, Michael.
Níl
- Bannon, James.
- Barrett, Seán.
- Broughan, Thomas P.
- Burke, Ulick.
- Byrne, Catherine.
- Clune, Deirdre.
- Connaughton, Paul.
- Coonan, Noel J.
- Costello, Joe.
- Crawford, Seymour.
- Creighton, Lucinda.
- D’Arcy, Michael.
- Deasy, John.
- Deenihan, Jimmy.
- Doyle, Andrew.
- Durkan, Bernard J.
- English, Damien.
- Enright, Olwyn.
- Feighan, Frank.
- Ferris, Martin.
- Flanagan, Charles.
- Flanagan, Terence.
- Gilmore, Eamon.
- Hayes, Tom.
- Higgins, Michael D.
- Hogan, Phil.
- Kehoe, Paul.
- Lee, George.
- Lynch, Ciarán.
- Lynch, Kathleen.
- McCormack, Pádraic.
- McEntee, Shane.
- McGinley, Dinny.
- McGrath, Finian.
- McHugh, Joe.
- Morgan, Arthur.
- Neville, Dan.
- Noonan, Michael.
- Ó Caoláin, Caoimhghín.
- Ó Snodaigh, Aengus.
- O’Donnell, Kieran.
- O’Dowd, Fergus.
- O’Shea, Brian.
- O’Sullivan, Jan.
- Penrose, Willie.
- Perry, John.
- Rabbitte, Pat.
- Reilly, James.
- Ring, Michael.
- Sheehan, P. J.
- Sherlock, Seán.
- Shortall, Róisín.
- Stagg, Emmet.
- Stanton, David.
- Tuffy, Joanna.
- Upton, Mary.
- Varadkar, Leo.
- Wall, Jack.
Tellers: Tá, Deputies Pat Carey and John Cregan; Níl, Deputies Paul Kehoe and Emmet Stagg.
Seanad amendment agreed to.
Seanad amendment No. 5:
Section 17: In page 24, lines 5 to 10, to delete subsection (14) and substitute the following:
"(14) Where an order under this section made in electronic form purports to have been made by an authorised person it shall be presumed by the Property Registration Authority that such electronic document was made and transmitted by the person by whom it purports to have been made and transmitted.".
Seanad amendment agreed to.
Seanad amendments Nos. 6, 7 and 10 are related and may be discussed together.
Seanad amendment No. 6:
Section 21: In page 28, subsection (5), lines 38 to 40, to delete all words from and including "having" in line 38 down to and including "section." in line 40 and substitute the following:
", having regard to—
(a) the expressed wishes (if known) of the relevant person concerned, and
(b) the circumstances of the relevant person concerned,
the court may appoint a person to be a care representative in accordance with this section.".
A number of amendments were made which related to representatives for applicants of diminished mental capacities. Section 21 of the Bill provides for the appointment by the Circuit Court of care representatives. A care representative is required if a person of diminished mental capacity wishes to apply for ancillary State support. Amendment No. 6 amends section 21 of the Bill. It obliges the court to have regard to the wishes of the person who is the subject of the application when appointing a care representative.
The amendment represents a further safeguard within the scheme for the person. It is also consistent with the guiding principles contained in the proposed mental capacity legislation. The reference to "medical practitioner" is included so that the proprietor of a nursing home is ruled, on the basis that it would constitute a conflict of interest. It was decided in the Seanad to add the medical practitioner who did the care assessment for similar reasons.
I welcome these amendments. They add to the Bill. It is only right and proper that persons of diminished capacity should still have a say in indicating who they feel might be best positioned to represent them when they become of that state of mind. In other words, a person's wishes may have been expressed before he or she was no longer compos mentis. The definition of “compos mentis” is to understand the value of one’s property, the consequences of one’s action and the implications for oneself.
Even though a person may not have such understanding, he or she may still have a sense of who is best fit to represent them, given a lengthy relationship over many years before a sad occurrence happens. I have no issue with the second part. The Minister is correct and the Seanad was wise to add the term "the medical practitioner who has carried out the assessment". The less room for a conflict of interest the better. I have no issue with these amendments.
These amendments are sensible and we all want to ensure a person would, if possible, have his or her wishes fulfilled. This is the appropriate way to do it. It is a good idea to have the medical practitioner as a person whose views can be considered reliable in this regard. Many people — Deputy Reilly may not be able to say this because he might be accused of a conflict of interest — tell their GPs a lot of things they might not tell anybody else. They open their hearts at times to their GPs. Registered medical practitioners can include other practitioners. Often they will be appropriate persons who can best interpret the wishes of the persons concerned. I have no problem with these amendments.
Seanad amendment agreed to.
Seanad amendment No. 7:
Section 21: In page 29, subsection (12), lines 27 to 30, to delete paragraph (i) and substitute the following:
"(i) a person, other than a person who is—
(i) the proprietor of a nursing home in which the relevant person resides or is likely to reside, or
(ii) one of the registered medical practitioners who examined the relevant person and prepared a report referred to insubsection (18) in respect of such person, and who appears to the court to have a good and sufficient interest in the welfare of the relevant person.”.
Seanad amendment agreed to.
Seanad amendment No. 8:
Section 28: In page 40, subsection (4), line 3, to delete "An application undersubsection (3)” and substitute the following:
"A receipt undersubsection (1) and an application under subsection (3)”.
Seanad amendment agreed to.
Seanad amendment No. 9:
Section 28: In page 40, between lines 4 and 5, to insert the following subsection:
"(5) Where an application undersubsection (3) is made to the Property Registration Authority in electronic form which purports to have been made by an authorised person it shall be presumed by the Property Registration Authority that such electronic document was made and transmitted by the person by whom it purports to have been made and transmitted.”.
Seanad amendment agreed to.
Seanad amendment No. 10:
In page 54, lines 1 to 4, to delete subsection (1) and substitute the following:
"47.—(1) Subject tosubsections (2), (4) and (9), a specified person may act on behalf of another person in relation to any matter under this Act, including, but not limited to, any application, appeal, review or the giving of consent under section 7 (13), where that other person is not of full mental capacity.”.
Seanad amendment agreed to.
Seanad amendments reported.