Seanad Éireann debate -
Thursday, 12 Jul 1990

Vol. 126 No. 2

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

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

Mrs. Honan

I would appeal to the Minister even at this late stage to look at the terms "may" and "shall". Where a subvention is unreasonably withheld from a person who qualifies, the word "shall" would be effective. Could the Minister find some way that would satisfy those Senators who have deep reservations about this legislation — I am one of them — because of our long experience in health boards? It is not my style to put the gun to the head of a Minister of any Government on matters of health because health should be above politics.

If the Minister cannot accept the amendments that have been discussed, would he now indicate that subvention will not be unreasonably withheld?

Mr. J. Ryan

I would like to support Senator Honan's recommendation to have an intermediary word in the section rather than "may" or "shall", seeing that the word "shall" could cause a charge on the Exchequer. I have grave misgivings as have many of the Senators who signed the amendment, about the lack of emphasis involved in "may". As I said on Tuesday evening, it would be a sad situation if a case, having been investigated and proved to be bona fide, a subvention was withheld because the inclusion of "may" in section 7 would allow the health board to opt out of their responsibility. I support Senator Honan but I appreciate that at this stage the Minister can do very little. However I would hope that in response to the pleas of many Senators he will accept an amendment on Report Stage. He may be able to offer some hope to us now in that regard. The operative word "may" is weak. The people we are concerned about are vulnerable. Therefore I hope the Minister will consider an amendment on Report Stage.

Mr. O'Reilly

I do not propose to labour the issue, but I want to make the point that I agree with the two previous speakers on this issue. It is important that there should be no ambiguity or opportunities to opt out. Like Senator Ryan I hope there would not be in the Bill any clause that would allow a health board not to comply fully with their obligations.

I very genuinely congratulate Senator Honan for the non-partisan approach she is taking to this important question, and it is an important question. Basically, I believe the Minister, in conjunction with the draftspersons, could arrive at some formula to deal with this matter.

Minister for State at the Department of Health (Mr. N. Treacy)

I would like to reassure Senators that section 7 of the Bill dealing with subventions is not about saving money. The Minister for Health in the Dáil and I in this House have given a commitment that there will be no diminution in the amount of funding for nursing home subvention as a result of this Bill. On the contrary, there will be additional funding made available to implement this Bill. At least £500,000 of the £5 million made available by the Government this year to develop services for the elderly has been set aside to implement this Bill in anticipation that it will be passed by this House. That commitment has already been made as far back as the Book of Estimates last year and the budget in January. The new subvention rate will be higher than the existing rate.

What this section does is allow health boards to target these additional resources at people whose level of dependency and income is such that they require nursing care which they cannot afford. The health board will be able to pay a subvention to any home registered by a health board. At present they can pay the subvention only to a small number of homes approved by the Minister for Health.

I have not heard any Senator defend the present unsatisfactory position. I would ask Senators to reflect on the suggestion that there should be a statutory obligation on health boards to pay a nursing home subvention. Health boards have a statutory obligation to provide care and maintenance for any person who cannot provide that care and maintenance for themselves under section 54 of the Health Act, 1953. This Bill does not affect that statutory obligation in any way. In fact, it clarifies the health board's power to meet that obligation by arranging for the care of dependent persons in nursing homes. Health boards must retain the flexibility to meet the needs of dependent persons in other ways in their own hospitals or homes or by making services available in people's homes. The health board should not be obliged to meet the needs of dependent people in one particular way rather than another.

I understand the concern of some Senators that health boards, having assessed a patient as suitable for a subvention in a nursing home, may delay the payment of the subvention without offering alternative care in the meantime. The Minister for Health has already given a commitment in the Dáil that the code of practice which is being prepared to ensure consistency in the implementation of the legislation will lay down the maximum period of time which any person who has been assessed as suitable for a subvention will have to wait for payment of that subvention. I believe that this concern will be adequately addressed in the code of practice and I would ask Senators to support this section of this important Bill.

Mrs. Hederman

If the Minister says that this Bill is not about saving money and if he is satisfied that there is sufficient money available to meet such a case as this, where does the problem arise? This "shall" refers only to the case where the person enters or is already in the nursing home. It has no bearing on what might happen to the person before that. I do not see what the problem is if it is not about saving money. If the Minister says there is sufficient money available and additional moneys are being provided, there should not be a problem. What we are asking is that if the person enters or is in a nursing home the health board shall pay to the nursing home. If the person does not go into the nursing home, the health board will not be expected to pay. I cannot see what is the problem about the word "shall".

Mr. N. Treacy

As I said at the outset, money is not the problem. What is vital to the proper care and maintenance of a dependent person is the necessary flexibility to the health authorities and the health boards to exercise discretion as to how that person should be looked after. If we were to put them into a cul-de-sac, where there is only one option available, that they "shall" pay subvention to a nursing home for them, it could be tantamount to debarring the health board or the medical practitioners or those in charge of the medical well-being of the person from taking other options. It may need flexibility in order to ensure that these options are available for maximisation of the care that will be available for the individual person.

Mrs. Honan

I want to clear the lines here because I have been on this Bill since it was introduced here.

I am not accusing the Minister of State of shortcutting funds from the Department. I am well aware of the commitment of the Department of Health and of the present Minister to funding and of the increase in funding. I have sufficient confidence in the Minister. There are long-serving members of health boards in the House at the moment and we know there are delays in subvention payments. I am aware of the commitment of the Minister for Health and the Minister of State to provide extra finance for the elderly. Senator John Ryan, Senator O'Reilly and myself are concerned about this. The three of us made the same points on Second Stage in lengthy contributions, that the health boards should pay the subventions if requested even by a dependent person who has just arrived in a health board hospital or nursing home. That is all we are asking for. We do not want amendments. All we are asking is that subventions be paid without delay.

I am well aware of the extraordinary commitment of the Minister of State, Deputy Treacy, and the Minister for Health, Deputy O'Hanlon, to the provision of extra finance to this section of our people. I am asking that there should not be further delays for people who have been delayed already. There will be an increase in the number of persons involved when the legislation is passed because there will be new nursing homes.

Mr. J. Ryan

I appreciate and accept the concern of the Minister of State about the Bill. I also accept that the health board, in their wisdom, may decide on a way of looking after the person other than in a nursing home. Where the health board is of opinion that the person is in need of maintenance in a nursing home but is unable to pay all or part of the cost, the Bill then uses the word "may". I accept the Minister's bona fides but when a word is written into law the word is part of the law. When the Bill becomes law the word "may" will be the operative part of the section. Having decided on the need, we display weakness by using the term "may". That is what I am concerned about.

Mr. McKenna

Everybody is concerned with this problem. We must understand the difficulty in relation to the Department of Health vis-a-vis the health boards. In the Bill, it is the circumstances of the individual person that will determine the subvention. The use of the word “shall” would remove the right of the health board to have a say in the activities of a nursing home. That is the reason the word “may” is included. An individual in a nursing home could be entitled to a subvention and it is the nursing home that would get the payment in those circumstances. There could be a situation where a nursing home would not have adequate facilities or would not be doing its job properly. It is important that where a subvention is being given to a person in a nursing home the responsible authority would have control over the health board concerned.

Mrs. Hederman

The bona fides of the Minister are not in doubt. As Senator Ryan said, it is not a question of whether we take the Minister's word, as Senator Honan suggested, and believe that there is extra funding and so on. What is important is what is in the Bill. The whole purpose of the Bill is to license nursing homes and to have them up to standard. If the nursing home is not up to standard the person in question can be put into another nursing home. What we are asking is that having decided that the person is entitled to care and having decided to put him into care, at that stage the health board "shall" pay the subvention. Everything we have heard here is correct, I see no reason why the word "shall" cannot be substituted for "may".

Mr. Norris

Just a few comments on the section. When I say "on the section", I really mean on the amendment and the reasons why it is not there because I think this is crucially important. I know the Minister is a decent and intelligent man. I have said this on previous occasions and I believe it to be true. I do not think he has got the room for manoeuvre to accept this amendment. Let us be political realists. If this amendment is accepted the Bill will have to go back to the Dáil.

Mr. N. Treacy

There is no problem with that.

Mr. Norris

I believe that that is the problem. The management of Government business is indicated consistently and I see Senator Farrell nodding his head. He is sitting in the front seat, so he probably knows something that perhaps the Minister has been deprived of in information terms.

I have been contacted yet again today by people whose political persuasion I simply do not know, nor do I care. They are involved in this area and they are concerned about it, for very good reasons.

If I can comment simply on the ruling of the Cathaoirleach that the amendment is out of order which, of course, we all accept; we have to accept it; it is part of the tradition and regulations of this House, but acceptance of that ruling has certain consequences for what the Minister says. If we accept, as we are obliged to do, that allowing this amendment is impossible because it would create a charge on the Exchequer — that means an increase — then the Minister's statement that this section will allow the spending of extra money — or, at least, to stabilise money — must be incorrect. What is represented in this section as it stands has been determined by a ruling of the Cathaoirleach to be in effect a reduction. That is the only logical conclusion you can come to. With regard to creating a charge, the layman, not having the benefit of the special techniques of the Cathaoirleach, would say it was sustaining rather than creating a charge.

I come to my final point. As a result of the Minister's phrasing, we can now, clearly have a situation where a patient who is determined to be in need of nursing home care, and who is also determined not to have sufficient income to be able to support that, may not get it. As a result of the word "may" rather than "shall" the Bill clearly envisages the possibility that a person who needs nursing home care and cannot afford it may not get it. I would like to ask the Minister very specifically if he would agree with me on this point.

Does the Minister not agree that it is possible to interpret this section in the following manner and I will specify it again: is it possible that it could be determined that somebody was in need of nursing home care, could not afford it but still would not get it because the health board would not provide it? I am not suggesting this is going to be a widespread practice but it most clearly is indicated by the present wording of the Bill. I would be very sorry to see the Minister stand over that because that is clearly the situation. In other words people may not get the subvention as a result of the obdurate refusal of the Government, unfortunately, to accept this amendment which has the support of the entire House — although perhaps not Senator Farrell, he is waving his hands about; I think disclaiming that.

Mrs. Honan

I am on my own in this.

Mr. Norris

Senator Honan is fighting a brilliant rearguard battle with great nobility and devotion to principle, and we honour her for it.

Mrs. Honan

That is what the Seanad is about.

An Leas-Chathaoirleach

I have to remind the Senator that we are having a lot of repetition. This was all discussed the last day. I would appeal to Members to bring the debate on the section to a conclusion. We have dwelt considerably on it.

Mr. Norris

I would like to sit down but I have asked a specific question of the Minister about the interpretation of the wording and I will be happy to leave it at that if he will answer that question.

Mr. J. Ryan

I am sorry to be testing the Chair's patience but I do not think Senator McKenna's case stands up because if the Bill is supposed to improve the nursing home situation, I do not think there will be any question of any stage of the health board giving a subvention to a person who is going into a nursing home that is not already licensed by the health board. This wording is a weakness in the legislation. In ten years time if "may" is still in the Bill, I will still say the Bill is weak.

Mr. N. Treacy

I would like to clarify the situation as best I can. First, the Cathaoirleach in ruling this amendment out of order does not reduce the funds available for nursing home care or geriatric care. It maintains the status quo that the prerogative for creating an expenditure on the Exchequer rests with the Government of the day. Secondly, if we change the word from “may” to “shall” it would allow for a situation where a person could admit themselves to a nursing home and the health board would be liable to pay a subvention. We cannot allow that to happen.

If we put a legal imposition on the health boards, they must abide by the law and they have no option but to pay the subvention. If a person is assessed in the normal way and is adjudicated to require nursing home care, and if that person is not able to support themselves, then under the law and various Acts the onus rests with the health board to provide the care for them. If the person is duly assessed and adjudicated to need nursing home care and is admitted to a private nursing home and has not sufficient resources, again under the law and as a result of this Bill, the onus will be on the health board to subvent that person.

As regards Senator Honan's point — and I will readily admit that in the past health boards were not as quick to make decisions on subventions as they should — we are looking at that matter now and we will liaise with the health boards, with whom we have been in negotiation. We are drawing up a code of practice and we will have that enshrined in the code of practice to ensure the subventions are paid quickly.

I have all the amendments before me and I am hoping to bring forward on Report Stage a fairly substantive amendment that I think will cover the points Senator Honan made, as well as a number of other points.

Mrs. Honan

I am glad and I thank the Minister.

Question put and agreed to.

SECTION 8.

Mr. J. Ryan

I move amendment No. 15:

In page 11, between lines 30 and 31, to insert a new subsection as follows:

"(2) Fees shall relate to the number of beds available.".

I submitted this amendment in view of the fact that it was also recommended by the working party that fees should be in proportion to the number of beds in the nursing home. If it is accepted and appreciated that a particular nursing home has provided a first class service, the fee should be proportionate to the availability of beds and staff vis-a-vis a much bigger home. There could be two high quality nursing homes, one with 20 beds and a pro rata staff and another with 100 beds. In recognition of what the smaller nursing home has done there should be pro rata fees. It is a small item but it is recognition of, perhaps, a proprietor bringing a nursing home up to the standard the Minister requires.

Mr. O'Reilly

I support Senator Ryan's amendment which can only enhance the legislation. That kind of recognition should properly be given to smaller homes having regard to the effort they would have made relative to the others.

Mr. N. Treacy

It is proposed to relate fees for nursing home registration to the number of beds in the nursing home. This will be done by regulations under section 8 (1) (a) to be made by the Minister for Health. For this reason, this amendment is unnecessary and I would be grateful if it were withdrawn.

Amendment, by leave, withdrawn.

Section 8 agreed to.

SECTION 9.

Mr. O'Reilly

I move amendment No. 16:

In page 12, subsection (2) (c), line 23, after "home" to insert "provided an opportunity has been given for the person to comply with the regulations".

In our handling of this legislation from the word go we have attempted to adopt a reasoned approach. Fundamentally, the first concern of this Bill is with the care of the people in nursing homes — the inmates for want of a better term — the kind of facilities provided for them, their lifestyle, diet and the nursing staff. I mentioned all these on Second Stage.

What we are attempting to do in this amendment is to be fair to nursing home owners. Basically, it is to write it into the legislation that an opportunity will be given to the person to comply with the regulations. It is designed to make it clear that a nursing home owner will have the opportunity, on being found less than completely satisfactory, to put their house in order. The amendment has no greater intention than that.

I would not want anyone in the House to misunderstand the amendment. There is no question of us suggesting to the House or to the Minister that there should be any laxity or less than the maintenance of excellent standards. I am impressed with the importance of that coming through consistently in this debate. There is no question of wanting to diminish that. What we are trying to do is to achieve fair play or to ensure that fair play is seen to be achieved. We do not see this as posing great difficulties, unless the Minister can enlighten us otherwise.

Mr. N. Treacy

A health board would not seek a nursing home management order unless the regulations had been contravened seriously. Such an order would be a 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 course a health board may take if the regulations have been contravened. It would be usual, and has been the practice of the health boards to date, to discuss the situation with the owner. The management order would only be used where other measures had failed and where there was an immediate threat to the well-being of the patient being cared for and the proprietor was unable and unwilling to do anything about it. A board, prior to seeking the order, would have given the nursing home owner an opportunity to remedy the situation. The purpose of this subsection is to allow more than one order to be made, if necessary. Any further order would, of course, have to comply with the procedures laid down in the section. I trust this clarifies the matter. Consequently, I will not be able to accept the amendment.

Mr. O'Reilly

Could the Minister be more specific? Will it be clear in the future that a health board, when they discover negligence, will issue a warning? I think it is important. I said on Second Stage that we must be extraordinarly vigilant. I am very concerned about the inspection system of the homes. Is the Minister giving an absolute guarantee to the House that there will be a proper warning system and a proper advice system for the management? Is that the case?

Mr. N. Treacy

Absolutely. When a complaint comes to the notice of the health board, either through the local social worker or the public health nurse, senior officials of the health board are brought in. Usually it is a superintendent public health nurse or a senior social worker, or people like that, such a person would investigate the matter and bring back a report to the director of community care. If the director of community care, on reading the report, finds that it warrants his or her visit, along with a team of officials, they will give due notice and will visit the nursing home. They will give clear directions as to what is to be done. They will specify the time by which it is to be carried out. They will go back and put that in writing. If it is not done within the specified prescribed period then they will take legal action.

Mr. O'Reilly

Will this be in the draft regulations?

Mr. N. Treacy

It will be in the code of practice and in the draft regulations.

Amendment, by leave, withdrawn.

Section 9 agreed to.

Section 10 to 15, inclusive, agreed to.

NEW SECTION.

Mr. O'Reilly

I move amendment No. 17:

In page 14, before section 16, to insert the following new section:

"16.—(1) A dependent person as defined in the Act, or person acting on the dependent person's behalf shall have the right to make complaint relating to his care or standard of facilities in a Nursing Home, as defined in the Act, to the Health Board for that area.

(2) The Health Board shall investigate such complaint, advise the complainant of the outcome, and may attach any conditions in respect of registration as is necessary to avoid a repeat occurrence of any such complaint.".

I consider this to be an extremely important amendment to the legislation. It would be extremely wrong that we should have a nursing home where a person who is unlucky enough to need to live in the institution, because of old age, family circumstances or whatever, could not make a complaint. It is important that that person should have access to an appeals procedure and the right to make a formal complaint. This is something we grant to all other sections of the community in other situations. Why not make sure that right is statutorily established for old people in nursing homes? I am convinced we should maintain the great Irish tradition — and I dealt with this more comprehensively on Second Stage — of care for our old people. It is a wonderful characteristic of our Irish culture. It is engrained in us and it is something of which we can be proud. With that in view, I urge the Minister to take on board this amendment. It will provide a procedure to allow old people to make a complaint. That is important.

The second subsection provides that the health board shall investigate such complaint and advise the complainant of the outcome. I am a primary teacher by profession. When a complaint is made against a teacher in a school the inspectors of the Department of Education investigate that complaint and they prepare a report on it. They subsequently convey their findings to both the complainant and the person involved. What I am saying is that it is important that the complaints are investigated, that the outcome is conveyed to the persons concerned and that it is very clear to the nursing home owner that such procedures exist and that complaints will be investigated properly. That sort of sanction has to exist. It is a human institution. It would be naive of us to assume that one could run a nursing home otherwise.

It is important that the complaints are investigated, that they are seen to be followed up and that a report is sent back to the person making the complaint. I urge the Minister to accept this amendment. We did not put down amendments lightly to this legislation. None of them was put down without due consideration for the care for the old and, indeed, as much as possible to accommodate the nursing home owners. However, our ultimate responsibility must be to the old persons in the institution.

Mr. J. Ryan

I fully support Senator O'Reilly's amendment to section 16. Senator Conroy did not like the word "aged" being used last Tuesday. I urge the Minister that a system be accepted whereby when a home is registered under the aegis of the health board and when a particular patient has a complaint that there should be a complaints system. The complaint should be conveyed to the health board and investigated, both for the sake of the owner of the home and for the patient. That is a sensible way of dealing with complaints rather than having frightening stories and complaints going outside the home, which are wrong and hurtful to the patient and to the home. I strongly recommend that this amendment be adopted by the Minister.

Mrs. Hederman

I am delighted that this amendment has been put down. It was one of the points which I mentioned on Second Stage. I think that the area of complaints is extremely important. It is a very sensitive area. We have to accept that old people who are dependent are, understandably, very frightened and very vulnerable. They feel to a large extent that their rights have been taken away from them, maybe simply because of their incapacity and are not able to assert themselves.

We all know, sadly, that there are people in nursing homes who have been there for a very long time. Some of them do not have any relatives to whose notice they can bring a complaint in order to have something done on their behalf. We are talking about a situation where they are frightened that if they try to initiate any complaint it would probably be extremely difficult for them in the first place. If they do not have a relative to take up the issue for them it would be quite difficult for them to do it on their own. Even if they did succeed in initiating some sort of a complaint they are, understandably, concerned and frightened that they will be, as a result, discriminated against.

I remember being in hospital in Glasgow many years ago in a four-bedded ward. There was a very elderly lady opposite me who was treated abominably by the night nurse. When this came to our attention, we offered to do something on her behalf. She simply refused to allow the other three patients in the ward bring the matter to the attention of the matron because she felt that on the following night the situation would be even worse than it had been. However, we took the matter up on her behalf and she was not discriminated against, but she had three agile people in the ward who were able to fight on her behalf. It was certainly an example to me that old people are prepared to put up with the most outrageous treatment and bullying by staff, and do nothing about it.

This amendment would go some way to alleviating that. I suggested earlier that we should bring about a situation where making complaints was not seen as such a big deal, but something relatively easy. I could only think of the sort of system that operates in hotels abroad where they have a suggestion box. If that system operated in nursing homes old people would not feel they were going to create problems for themselves and it would be relatively easy for them to place a slip in a suggestion box. When such a complaint would go before the health board, they could decide whether it was a serious issue. It probably is not a practical suggestion, but we need to do something which will encourage people to complain if they have a grievance.

Mr. N. Treacy

I listened with great interest to the very sincere contributions on this amendment and I have looked at the amendment in detail. This amendment, in itself, is not appropriate for inclusion in the Bill. However, I would like to advise Senators that article 8 of the draft regulations sets out a very clear complaints procedure. Sub-articles (1), (2) and (3) of this article incorporate many of the points which have been made here by various Senators. They state:

Article 8.

(1) The registrar, proprietor and the person in charge shall investigate any complaint about conditions in the nursing home by a patient, or the person acting on the patient's behalf;

(2) Complaints should be made in writing and a copy of the complaint and details of the outcome recorded in a complaint record;

(3) 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 chief executive officer of the relevant health board by which the nursing home has been registered and the health board shall investigate the complaint and record the outcome.

I concur with what Senator O'Reilly has said. I appreciate the time and attention that has been given by various Senators and parties in putting down amendments. I appreciate very much the passionate, diligent and sincere contributions that have been made throughout the debate on this very important Bill. I have had discussions with my officials and, in turn, have had discussions with the Attorney General's Office and the draftsman. I am not able to accept this amendment, because it is slightly loosely worded. If Senator O'Reilly is prepared to withdraw it, I am prepared to circulate an amendment I put before the House earlier on Report Stage.

Mr. O'Reilly

I welcome the Minister's constructive approach to the amendment. All we are concerned about is the essence of the amendment. We are very happy to change the wording.

Amendment, by leave, withdrawn.

Sections 16 and 17 agreed to.

Title agreed to.

Bill reported with amendments.

Agreed to take remaining Stages today.