I move:
"That the Homes for Incapacitated Persons Regulations, 1985 [S.I. No. 317 of 1985] made by the Minister for Health in the exercise of the powers conferred on him by section 2 of the Health (Homes for Incapacitated Persons) Act, 1964, be and are hereby annulled."
The problem about dealing with statutory regulations and statutory instruments is that we have only got a blunt instrument at our disposal. The blunt instrument is simply to refuse to approve the regulations or to annul the regulations, as it would be in this case, rather than refuse to approve them. Therefore, one has the difficult position of effectively being liable to be accused of throwing out babies and bath water together. Nevertheless there are — and I will go through them in some detail — important reasons why it would be better if these regulations were to be approved in an amended form. I cannot propose amendments. It is not my legal right to do so. This House cannot propose amendments, but the Minister could redraft the regulations and introduce new regulations without any great difficulty, in my opinion. It would do a lot to improve the quality of the service that is being given in private nursing homes.
It is important to realise that we are not talking about tiny minorities of people here. There are well over 5,000 people resident in private nursing homes, private hospitals and voluntary nursing homes. Of those well over 5,000 people over 80 per cent are over 65 years of age and close on 60 per cent are over 80 years of age.
That is quite a substantial number. That number of people represents almost one-third of all the people over 65 years of age in this age group who are in long term care. It represents 1 per cent of the total population over 65 years of age. It represents one-third of all the people who are over 65 years and in long term care. So we are talking about an important area of long term care for our elderly people, people who are, by and large, not particularly vocal, not particularly able to express themselves or to lobby on their own behalf. Therefore, we have a particular obligation to be sensitive to their needs and to be careful and conscientious in what we do for or on their behalf.
Of people who are in private nursing homes, the figures available to me would suggest that about 30 per cent of them are either bedridden or can do no more than sit in a chair. Close to 30 per cent of them are also defined medically as being in such a state of confusion as to need virtual constant attention and support to do anything.
I would not want to overstate at all the present level of State supervision. We have this provision for approved private nursing homes, but this approval is not really so much a stamp of approval that standards are of a particularly high standard as it is of a willingness to give statutorily to individuals a level of support by the State. Indeed, such approval of such private nursing homes has virtually ceased in recent years because of the state of public finances. But let it be said that in the Eastern Health Board area the majority of private nursing homes do not come under the heading to being approved. That does not mean that they have not been inspected; it does not mean anything about their level of standards. But a large number of them are not even subject to the level of inspection to meet approval. In my own area, in the Southern Health Board, there are only four approved private nursing homes for incapacitated people and there are 16 which are not approved.
It seems that apart from the regulations introduced in 1966 the most important obligation imposed on persons opening private nursing homes for private profit must be that they must notify the relevant health board. Conditions in these homes have been a matter of concern for a long time. The level of concern was indicated and came to a climax in the sixties and resulted in the passing of the 1964 Act, the Health (Homes for Incapacitated Persons) Act, 1964. This Act contained a number of provisions but, I want to quote from one because it describes the official philosophy for dealing with and regulating such homes. I am quoting from section 2 (1) of the Act of 1964, which says:
The Minister may, for the purpose of ensuring adequate and suitable accommodation, food and care for incapacitated persons while being maintained in homes and the proper conduct of homes, make such regulations as he thinks appropriate in relation to homes.
Without prejudice to the generality of subsection (1) of this section regulations under this section may —
There is a long list, not all of which I want to quote in detail but it states that the regulations may prescribe requirements as to the care of incapacitated persons, prescribe requirements as to the qualifications of the staff of homes, prescribe requirements as to the design, maintenance, etc. of homes, prescribe requirements as to accommodation, food, cleanliness, the description of the homes, and indeed there is a particular provision that people can be interviewed in private if complaints are being investigated.
The detail of the standards in those areas were to be prescribed by regulation. These regulations were finally published in 1966. If it was not such a serious matter the regulations would be almost laughable because they simply insert words such as "adequate" and "sufficient" and say no more than that. For instance in terms of the prescribed requirements as to the number and qualifications of the staff of the homes the regulations themselves simply say:
Sufficient and competent staff at all times having regard to the number of incapacitated persons.
"Sufficient and competent" being the detail that was elaborated on in the order. This arises in a number of cases. For instance, the prescribed requirements as to accommodation detailed in 4 (d) of the regulations is as vague as one could ask it to be. It says:
Sufficient supply of piped hot and cold water and suitable and sufficient sanitary and toilet facilities.
These words "sufficient" and "sufficient and adequate" surface again and again in the 1966 regulations. Consequently, what we were dealing with until recently were, by and large, words like "suitable" and "sufficient" and "adequate and sufficient", which were undefinable, and because they were undefinable they were, effectively, unenforceable except in conditions of extreme squalor. There were no real written down minimum standards.
In recent times it appears public controversy has been fuelled again. There have been a number of comments in the media. In 1983 the Bray and District Council of Trade Unions produced a report on conditions in their own area. The general concern was quite global. It had to do with suitability of buildings, the adequacy of nursing staff, in particular the number of nursing staff, the qualifications of nursing staff and the training given to nursing staff, the need for special equipment and facilities in such nursing homes and, by and large, the widespread allegations that such special equipment and facilities were usually lacking. We are talking about sanitary facilities, toilet facilities, washing facilities and such things. Many people alleged that these were singularly lacking in many of these private nursing homes. The absence of any programme of activity for people resident in these homes was widely adverted to, in other words, anything that would enable people to maintain their normal level of function, separate entirely from any programme of rehabilitation. There was almost a complete absence of such facilities.
The Eastern Health Board, in a report produced in July 1982 said the following:
Complaints which were made concerning unsatisfactory conditions in private nursing homes generally, generally refer to understaffing, overcrowding, inadequate heating, insufficient or poor food and unhygienic conditions or practices.
Consequently there was an increasing, widely recognised need for an improvement in the regulations of those private nursing homes which do not meet the proper standards. Nobody is suggesting that all private nursing homes for elderly incapacitated persons are inadequate but there seems to be a widely perceived view that there are some which do not meet the proper standards. There may be a considerable number which do not meet these standards but the powers which currently exist for regulation of such nursing homes are inadequate.
I welcome the Minister's indication that he proposes to introduce a scheme of licensing but that will require amending legislation. In his speech to the annual meeting of the Irish Private Hospitals and Nursing Homes Association on Friday, 9 March 1984 the Minister said:
I do not believe that the standards for accommodation and facilities for nursing homes, as set out in the 1966 Homes for Incapacitated Persons Regulations, are strong or detailed enough to ensure that the needs of people in the homes are properly catered for. I do not think that the monitoring arrangements which apply are adequate.
That would represent a fairly strongly worded statement from the Minister of what many people feel about such homes, that the powers are insufficient and the regulations are insufficiently detailed. The Minister produced regulations which were widely looked forward to. I believe there was a considerable level of consultation before they were produced although I would be interested to know if the National Council for the Aged, who have been given a commitment that they will always be consulted on matters of this nature, were, in fact, consulted before these regulations were promulgated.
There are many good things in the new regulations. There is a quite detailed provision for the keeping of proper and adequate records. There is an obligation on health boards to inspect all such nursing homes every six months, which is more than welcome. There is provision that facilities must be made for occupation and recreation. There is specific provision, for the first time, for lighting, that there must be overbed lamps and there must be provision for night lighting. These are simple things but very important if proper standards are to be maintained. There are specific minimum temperatures specified, 65 degrees fahrenheit in bedroom areas, 70 degrees fahrenheit in day areas, and that is also very welcome.
It is because in many other areas similar detail has not been listed that we find these regulations inadequate but where they are specified they are very welcome. A simple provision, for instance, that there must be a washhand basin in each room, which seems like minimal standards for people who are in institutional care, is also very welcome. Unfortunately, and in the light of the inadequate enforcement and the widely reported inability of health board officials to enforce the previous regulations, words like "suitable and sufficient" are still widely used in the new regulations. This is a matter of great regret.
Article 9 of the new regulations says:
In every home there shall be provided for patients maintained in the home suitable and sufficient care, suitable and sufficient accommodation, suitable, sufficient and nutritious food, properly prepared, cooked and served.
We have again these undefinable, unquantifiable and therefore immeasurable terms, "suitable and sufficient". Under Article 10 (1) (a) we have a provision that says:
suitable and sufficient equipment and facilities, having regard to the nature and extent of the incapacity.
Under subsection (b) we have the requirement that the home should be provided with suitable and sufficient lighting, heating and ventilation, with bed and bedding appropriate to the incapacity of each patient, with a separate kitchen, which is a useful provision. Article 10 (2) (a) specifies:
In every house there shall be provided adequate accommodation and space.
Here is the word "adequate" again. Words such as "adequate", "sufficient", "suitable" are undefinable, immeasurable, unquantifiable and therefore, unenforceable. Article (10) (4) states:
The responsibilities on a person carrying on a home shall be to provide a sufficient supply of piped hot and cold water. A sufficient number of toilets must be provided which are designed to provide access to wheelchairs. There should be a sufficient number of commodes, baths and showers.
Nobody is telling anybody what is a sufficient number or how you decide whether there is or is not a sufficient number. Words like "sufficient" and "adequate" and so on are all very well to use. They represent pious aspirations but they are not enforceable. It is by way of regrettable contrast I have to quote from proposals for draft regulations produced by the Eastern Health Board in 1982 where they suggested on accommodation standards as follows:
A single room should have a minimum area of 9.3 sq. metres and a shared room should have a minimum area of 7.4 sq. metres per bed.
They are the sort of minimum standards that are measurable and are, therefore, clearly enforceable and because of this they can be insisted upon. They specify that there should be one toilet per eight patients and not less than one bath for every 15 patients.
I am not in a position to judge whether one bath for 15 patients is adequate. I am in a position to state that, if you do not specify standards that are measurable, if standards are not specified that are quantifiable, there are no standards. As a result you have only opinions and the matter will end up in detailed controversy in courts. How can a health board official or an officer of the Minister's Department insist that standards are inadequate if there are not specified, quantifiable and measurable standards to be met? That, in my view, is the nub of the disappointment and dissatisfaction that many people have expressed to me about these regulations: that where they should be specific they are sadly, regrettably and painfully inadequate.
I find it ironic that where we are talking about facilities for elderly people, who are paying quite dearly for services, we use words like "adequate" and "sufficient" in terms of regulating the standards of their comfort, whereas the courts in a big city — New York — in a country that is not known for its commitment to the welfare state when they were defining what shelter should be provided for homeless people, basic minimum shelter, they insisted that the shelter should have at least the following: a minimum bed size — unspecified in our regulations — a minimum number of toilets — unspecified in our regulations — and a minimum area per person sleeping in a night shelter in New York. There is no such specific minimum for people in a nursing home being run for profit in this country.
I do not understand why it is necessary to leave words like "adequate" and "sufficient" in when competent authorities like the Eastern Health Board are able to work out precise minimum standards that they would regard as enforceable. It is not unusual or strange to specify quantifiable standards. We do it in respect of industrial safety, building regulations and planning permission. Members of the House have personal experience of the planning authorities setting regulations in great detail which people must observe. Why therefore do we have to leave these very vague and consequently unenforceable standards? It is a pity that what is obviously a well-intentioned improvement in standards — and quite dramatic in some areas in the levels of standards of care — will be spoiled by an apparent unwillingness to be specific in areas of basic care. It is because, having read the regulations and having listened to what people have said to me, that I believe the inadequacies of the regulations are so considerable that I therefore have to move that the regulations be annulled.