Nursing Homes Support Scheme Bill 2008: Committee Stage (Resumed).

Debate resumed on amendment No. 6:

In page 13, subsection (5), lines 5 to 7, to delete all words from and including "shall" in line 5 down to and including "Executive)" in line 7 and substitute the following:

"shall be carried out by a multidisciplinary team (who may be employees of the Executive)".

—(Senator David Norris).

Senator David Norris

Part of the problem experienced by those of us who are pushing for a multidisciplinary approach is that this legislation, like most legislation generated by the Government, is not fundamentally rights based. Therefore, there is no automatic entitlement to anything. That underlines Senator Fitzgerald's point that the Government does not want to be tied in to automatic financial liability in servicing the needs of patients, which is a pity. I know we face difficult circumstances economically but many of us in this House have argued for rights-based legislation.

All Members on this side have been eloquent. Equally eloquent is the silence on the Government side because, to quote our friend the late James Joyce, "silence gives consent, Mr. Anklegazer". If silence is equated with giving consent, there is some agreement on the Government benches. It is masked by a discreet silence. For the sake of inclusiveness, I must point out that my two female Fine Gael colleagues, Senators McFadden and Fitzgerald, said Senator Mullen had made his defence well. For the sake of being complete, I must state I argued well also. I would hate that to be omitted from the record.

Senator Rónán Mullen

Hear, hear. There is no surprise there; an rud is annamh is iontach.

An Cathaoirleach

Senator Norris should speak to the amendment.

Senator David Norris

My point is absolutely on the amendment. It is a pre-emptive strike to save a little time. I anticipate what the Minister of State may say in part of her response, especially on the plea many of us have made for the inclusion of social workers as a category. It is quite astonishing that they should be left out in light of everything that has been said by Senator Fitzgerald who has professional experience in this area. For that reason alone we should listen to her argument.

Having read the record, I note Deputy Paul Connaughton of Fine Gael made a very strong argument for the inclusion of social workers because there are isolated elderly males in rural circumstances. He stated their social background should be assessed in addition to the other criteria. It is very ironic today that the rural night-time bus service is to be cancelled for economic reasons, bearing in mind that it was introduced after a very powerful intervention by the President of Ireland, Ms Mary McAleese, and her husband, Mr. Martin McAleese. It is now possible that it will be withdrawn and it is important to bear this in mind.

I understand that in the discussions in the Dáil, amendments were tabled to the legislation. Amendment No. 114 — I am not sure whether it was tabled by the Government or Fine Gael — concerned the addition of social workers to the list of specified persons in the Bill. If the Minister of State is going to pop that one out at us, so to speak, and suggest it addresses the matter, it will not be acceptable. The provision was incorporated into the text of the Bill as received from the Dáil but its effect is to include social workers as a category of persons able "to apply" for assessments. The word "apply" is used but the wording does not include social workers among those persons involved in the making of assessments. That answer would not be regarded by me or Senator Fitzgerald as satisfactory. I am signalling that point, which is my shot across the bows.

Senator Ivor Callely

It is with interest that I listened to the various contributors to this debate. On one hand, I concur with most of the contributions but, on the other, I am not too sure whether we should allow ourselves to get bogged down in ticking the boxes and ensuring everyone is included for the sake of assessment. One can have assessment after assessment and involve everyone but usually the people involved in the provision of care to the elderly, who may have tapped in with service providers, either on a day care, respite or treatment basis, would probably have a very good handle on the level of care required rather than those persons whom Members propose should be included in the assessment process. I ask the Minister of State to clarify the phrase "may include" in section 7. Does this mean "may not include" equally?

Senator David Norris

Absolutely.

Senator Ivor Callely

Are we getting hung up on circumstances that may arise and, in particular, getting hung up on one discipline? I ask that this be clarified.

It is in everyone's interest, including that of the Minister of State and her officials, that we deal with the legislation along with the proposed regulations. If the guidelines are not available at this stage, a draft should be made available. This would assist Members and would probably prevent our wasting much time in discussion.

Other speakers referred to the level of care provided to elderly people in long-stay care. I was on the circuit for a little while with regard to the provision of services. Before this, I was involved in the pharmaceutical industry and visited a number of the institutions under discussion. There are few that I have not been in, including long-stay hospitals. Senator McFadden and others asked about the services old people will be receiving.

In my family there was a discussion about the need for long-stay care for one individual. When I mentioned St. Mary's in the Phoenix Park, a long-stay provision institution, one family member said: "Never, what a place." I had to correct the individual and asked when they were last in the institution. It so happened they were last there to visit their granny 30 years previously. I encourage every Member to visit the fabulous new facility in St. Mary's. Tremendous, state-of-the-art units have been built at the back and there is a tremendous array of services. This has not just been achieved in the public sector but has also been achieved in the private sector. Certain incentives have been put in place to encourage private operators to develop additional services for the elderly.

We should send out a clear message from this House that there is a tremendous array of services, including hair dressing and physiotherapy, of which one would like to see the elderly avail. They are probably not being provided to every single bed but that is because there are a number of beds in the system for a considerable period. We need to remove them from the system when we roll out the new beds and ensure the latter beds have the required array of services. Will the Minister of State indicate the number of long-stay beds currently in the system and the number that have been identified as requiring an upgrade by way of support services?

Minister of State at the Department of the Health and Children (Deputy Áine Brady)

The intent and purpose of subsection (50) is to ensure a multidisciplinary team is available to carry out all the assessments on a flexible basis. Under subsection (6), the assessment extends to social as well as medical and health issues, whereas subsection (7) deals only with a physical examination. The multidisciplinary teams established by the Health Service Executive in pilot schemes around the country include geriatricians, social workers and members of other disciplines specialised in older person care.

The term "suitable" used in the Bill encompasses the fact that a person should have appropriate experience in the care of older people. The common summary assessment record is the standard reporting format for the care needs assessment. It will ensure the person's care needs across all parameters of the assessment are examined and recorded. The cost components of public care will be laid before the Oireachtas.

Some of the concerns raised by Senator Mullen will be addressed by the new standards and regulations for care and nursing homes. The Minister has approved new standards and will underpin these by regulation in the near future. Among other things, these regulations will provide individual care plans for residents of nursing homes and quality of care in nursing homes, including social and care needs. They will be inspected by the Health Information and Quality Authority, HIQA.

On mental health, which was raised by Senator McFadden, the care assessment will include cognitive ability, orientation and any other matter that affects the person's ability to care for himself or herself. The phrase "long-term residential care" is defined as maintenance, health or personal care services.

The term "multidisciplinary" is not used in the Bill and is not defined in legislation. The use of the singular and plural form, as in "person" or "persons", is consistent with the Disability Act 2005. However, I will consider the amendment on this matter, subject to legal advice.

Senator Frances Fitzgerald

The Minister of State indicated several times that the care needs assessment is a physical assessment under subsection (7). Under subsection (6), however, it is clear that a care needs assessment takes into account family and community support as well as medical, health and personal and social services. The members of the multidisciplinary team are not defined under this subsection.

The Minister of State indicated that subsection (7) refers only to a physical examination. Where is the issue of the multidisciplinary team addressed? Who will do the assessment once it has been determined as being required under subsection (6)? If, under subsection (7), the evaluation will be a physical assessment and will be done by a doctor, nurse, occupational therapist or chartered physiotherapist, who are the multidisciplinary professionals who will carry out the assessment, as defined under subsection (6)?

I acknowledge the Minister of State's commitment to return to this matter and propose to withdraw my amendments until Report Stage.

Senator David Norris

We will return to the substance of some of these matters in later amendments. With regard to the multidisciplinary aspect, I am not aware of any occasion in the Bill where the phrase "multidisciplinary team" is employed. Perhaps the Minister of State will point to a passage where the term is used as I may have overlooked it. I note her skilful advisers are searching through the Bill. It will be interesting to ascertain whether they have found a case of the term being used as it would provide Senators with an opportunity to examine it.

We should not have a completely gilded view of the services currently available. My distinguished colleague, Senator Callely, referred to St. Mary's Hospital in the Phoenix Park and suggested Senators should visit the facility. He also noted that somebody had spoken about the hospital in less than glowing terms — I believe it was in the other House — and when questioned on the matter it transpired the person in question had not been to the hospital for 30 years. I have been to St. Mary's Hospital in the past two years and I raised conditions in it on the Adjournment. I pay tribute to the remarkable professional devotion shown by its staff. Some aspects of the hospital have been renewed and I understand that process is continuing, which I welcome.

An Leas-Chathaoirleach

The Senator is drifting from the subject of the amendments, which refer primarily to the assessment of need.

Senator David Norris

I am aware of that. The Senator opposite engaged in an extensive flight of rhetoric about the issue. I am simply putting the matter in context in order that someone reading the record in subsequent years will not be misled. As far as I am aware, the older sections of St. Mary's Hospital, which are Dickensian, are still in use. Let us, therefore, not have a glowing view of the hospital, which is not to criticise its staff. It is a fact, however, that some of the plant in it leaves a great deal to be desired.

That the Minister of State appears to be becoming more and more flexible is welcome. Before we wear her out, perhaps we should move on to subsequent amendments. I understand she is examining the position and will return to the matter on Report Stage.

Senator Ivor Callely

I was interested in the Minister of State's comment that the evaluation will be a physical assessment. In what setting will assessments be carried out?

Senator Nicky McFadden

The Minister of State used the term "cognitive ability" in response to the issue I raised about the mental health needs of the elderly. Cognitive ability does not necessarily cover mental health. I refer specifically to people with depression or psychosis and those who may be psychiatrically unwell. None of these areas is covered in the evaluation.

Subsection (6) sets out that the evaluation will include an assessment of a series of areas, including whether a person is able to dress and bathe, is incontinent and so forth. However, it does not cover the issue of mental health. Given that subsection (7) explicitly refers to the professionals who may be involved in an assessment, I ask the Minister of State to consider inserting a reference to a geriatric psychiatrist in this subsection.

I do not need to expound on the wonderful care centres in my area where care services for the elderly require substantial additional funding. In the Mountmellick area, for instance, two physiotherapists in one care centre must deal with 140 patients, including outpatients. I am concerned about budgetary constraints.

Senator Rónán Mullen

I thank the Minister of State for her response. I know she is a caring person. Senator Bradford's motivating speech encouraging her to consider her legacy may partly explain the flexibility she has shown. I welcome and appreciate her commitment to examine the use of the plural form.

On the guidelines which will be subject to examination by HIQA, will appendix A of the HIQA nursing home regulations as it relates to the minimum data set be implemented in full? This will be necessary if the individual's needs are to be addressed in full and the detail recorded in such a way as to allow the data to be entered into a system and used to assess our performance at national and international level.

Senator Mary M. White

Having listened to Senator McFadden's comments on this issue, I share the view that dealing only with the physical aspect is a form of housekeeping. Each human being is unique. This faces all of us in the future. We discussed in the Seanad a report done by NUI Galway that the practical needs of older people in nursing homes were being looked after reasonably well but there is a holistic need which makes a person happy in his or her situation.

There are geriatricians, a relatively new medical profession in the country. Providing for a general practitioner is narrow. The section would want to be more defined on who is experienced in dealing with people who need care. This Bill is not only about older people. It is about any person of any age who needs long-term care.

I agree with my colleagues that "cognitive ability" has nothing to do with the person's emotional health——

Senator Nicky McFadden

Hear, hear.

Senator Mary M. White

——and whether the person is happy that he or she is living in the nursing home as a home from home. The person wants to be at home but he or she must be in the nursing home. The happiness part, how the person feels, is the most important part. I would prefer to be happy and have the place untidy, but my emotions, my feeling about myself and whether I am happy in the place would be predominant.

Deputy Áine Brady

In reply to Senator Norris, the term multidisciplinary is not used because it is not defined in the legislation. I stated already that the use of both singular and plural is consistent with the Disability Act 2005, but I have agreed to consider this amendment in terms of the "person" and "persons".

The care needs assessment will be carried out by a person suitably qualified. As defined in section 3, "suitable" means that "the person has the necessary qualifications, training or experience, or combination thereof, to perform that function", and that would include the holistic approach to this person as an individual, not only looking at the physical.

Section 4(7) is only an enabling provision relating to the physical examination if it is necessary. It is a safeguard that is in place and it will be carried out after consultation with the particular individual. These assessments are undertaken in any setting, acknowledging that some people will enter a nursing home from an acute setting while others will enter from the community. It will be after discussion with the individual or, obviously, the carer.

Senator Mullen referred to the minimum data set. It is not part of the standards approved by the Minister; it is an appendix. There are serious resource and logistical issues around selecting and implementing an agreed national minimum data set and my Department will be examining this once the new inspection regime is up and running. That addresses many of the issues raised.

An Leas-Chathaoirleach

We have given those amendments a good airing.

Senator David Norris

If I may make a positive final comment, and this is a serious matter, I can recall a case in which I was involved where an elderly woman was living in conditions of considerable untidiness which I will not describe as squalor as they were not unclean. She had a serious problem with her eyesight and, eventually, with her co-operation I arranged for her to be hospitalised for a short time. She was never brought back home. I had arranged for the place to be done up and various things put in for her and it was really rather sad because she was transferred, after assessment, to a State facility. With the best will in the world I am not sure the care was adequate because this elderly lady eventually succumbed to the effects of very serious bed sores. It was a horrible way to go. If she had been assisted after assessment involving social workers and a multidisciplinary team, it might have been possible for her to go back and live her untidy life as she wished in her tiny house and she would not have died in agony from the bed sores. That is where Senator Mary White on the Government benches is coming from.

This is my last word on it. The Minister of State said I was correct in stating that the term "multidisciplinary" is not used in the Bill. The reason she gave was that there is no definition of "multidisciplinary" in the Bill. That is a circular argument. Of course one does not need a definition if it is not included. An important opportunity has been missed to include that definition and it is not adequate to state that it does not occur in other Bills. This was a moment to include it because this is the Bill where it is most appropriate.

There is a perfectly adequate definition of "multidisciplinary" from the HSE and from the correct support services, and we could have included it in the legislation. As the Minister of State says the aim is to get multidisciplinary assessment, let us have it and let us include it. We need not be shy. We all are grown-ups. We can face it on the page. All the Minister of State need do is insert the definition. If she and her advisers are not too exhausted by this, let them look at my definition, which is the HSE's definition, and let us insert it in the Bill. The Minister of State will not have to do any homework. We have the definition ready for her.

Let the Minister of State not say we cannot have it in the Bill because there is no definition. There is no point in having a definition of something if it is not included in the Bill. Let us put it in. We have given her the definition. That is being helpful.

Senator Ivor Callely

I was interested to hear the Minister of State say it could be in either setting. Is that either-or or either?

Deputy Áine Brady

Either.

Senator Ivor Callely

Rather than push her on the issue now, perhaps she and her officials might write to me. My understanding of the current position is that the assessment is carried out in a hospital setting and that is why I state "either-or", and in a number of cases where the person's desire is to return home, it is carried out in the home as well. This is why I stated earlier that we could get bogged down in the entire assessment process. When the opportunity arises, perhaps the Minister of State would pencil a note to me on that issue. In my initial contribution I also mentioned the participation of family members in a case conference on such assessment, their role and how they will be accommodated in that regard, and I ask for clarification on that.

Senator Nicky McFadden

While I accept that the Minister of State aims to include a holistic approach to the care of the person, I do not understand why she will not include the phrase "mental health" as well. I ask her to consider including that phrase. She has spelt out all the other physical needs of the person and it would be important to include the phrase, the "mental health" of the individual.

Senator Mary M. White

I agree with that.

Deputy Áine Brady

There is no amendment asking me to insert those words.

Senator Nicky McFadden

In all these amendments we have been discussing the needs of the person. While neither the Minister of State nor we have spelt it out, it seems extraordinary we have not included it.

Senator Mary M. White

It goes back to the proverbial problem that there are not enough women in the Oireachtas, either in this Chamber or in the Dáil. Most of the legislation is drawn up by men and they are missing out on the emotional aspects and the feelings. Naturally, women, as politicians, go for it. There is no question about it. In countries where there is an equal number of men and women legislators the legislation is much more socially minded and far more advanced. It brings us back to the same issue again.

From my document on suicide and my document on older people, my view is that the emotional needs should have equal priority. The list in the section is cold-blooded, factual and bureaucratic. No matter what argument is put up against that, if a few more women were drawing up this legislation, it would be much better.

Senator David Norris

Senator Mullen and I have highly developed feminine sides.

Senator Rónán Mullen

Steady on.

Deputy Áine Brady

I made the point that we do not want to have a situation where applicants have to be assessed by a whole series of professionals and have assessments they do not need, but I will take on board what the Senator said about mental health issues. The multidisciplinary teams currently being piloted around the country include geriatricians, social workers and many other disciplines. They are already in place. I will get legal advise on the use of the term.

An Leas-Chathaoirleach

Is amendment No. 6 being pressed?

Senator David Norris

Not at this stage.

Amendment, by leave, withdrawn.

Amendments Nos. 7 to 13, inclusive, not moved.

Senator Nicky McFadden

I move amendment No. 14:

In page 13, subsection (7), line 36, after "or" to insert "a social worker or".

An Leas-Chathaoirleach

Is amendment No. 14 being pressed?

Senator Frances Fitzgerald

The Minister of State did not respond to this amendment. Is she willing to consider it?

An Leas-Chathaoirleach

We have completed the discussion on this. Is amendment No. 14 being pressed?

Deputy Áine Brady

The amendment relates to physical examinations only, so social workers are not necessary.

Amendment, by leave, withdrawn.

Senator David Norris

I move amendment No. 15:

In page 14, subsection (8), lines 3 to 5, to delete all words from and including "that" in line 3 down to and including "lifetime." in line 5 and substitute the following:

"that it is likely the person will require care service for a period of not less than 30 consecutive days or periods in the aggregate amounting to not less than 30 days within a period of 12 consecutive months.".

This is to delete a certain number of words in subsection (8) and replace them with "that it is likely the person will require care service for a period of not less than 30 consecutive days or periods in the aggregate amounting to not less than 30 days within a period of 12 consecutive months".

I recollect the sense of this amendment. The intention of it is to ensure that immediate care is effected and that we reassess the situation where the Bill, as currently phrased, appears to assume that there will be a necessity for lifetime care. That closes the option of hope and optimism and the idea that there will be a rehabilitative element in nursing homes and after a brief stay a person may come out again. It is a rather grim assumption that people will have to stay in a nursing home for an extended period.

The phrase in the Bill to which the amendment refers reads:

Where the Executive receives a care needs assessment report in respect of a person, it shall, after considering the report as soon as practicable after its receipt, make a determination—

(a) that the person needs care services, or

(b) that the person does not need care services as it thinks appropriate in the circumstances of the case.

My amendment would insert the phrase "that it is likely the person will require care service for a period of not less than 30 consecutive days or periods in the aggregate amounting to not less than 30 days".

The Bill as currently framed reads, "as it thinks appropriate in the circumstances of the case, and where the Executive determines that the person needs care services, the Executive may also make a determination that it is unlikely that the person will ever cease to require care services during the person's lifetime." The offending phrase is "that it is unlikely that the person will ever cease to require care services during the person's lifetime". It is like a deferred death sentence as far as I am concerned and the phrasing provided by me, that is, "that it is likely the person will require care service for a period of not less than 30 consecutive days or periods in the aggregate amounting to not less than 30 days" and so on is a much more open approach to this difficult and complex situation.

Senator Rónán Mullen

I thank Senator Norris for tabling the amendment and expressing his objections to the original wording so eloquently because I agree with him. What turns on the executive's ability to make a determination regarding a person on foot of a care needs assessment report that it is unlikely the person will ever cease to require care services during his or her lifetime? Why does that need to be there and why does the executive need to be able to make such a predictive statement? What mischief does that enablement of the executive seek to address? What good does it seek to achieve?

Senator Nicky McFadden

I hear where Senator Ross is coming from.

Senator David Norris

I am Tweedledum. The other old Prod is Tweedledee.

Senator Nicky McFadden

I read this differently. In my experience of elderly people, if they are in the system and are well cared for on a long-term basis it gives them great security, and their families are free from anxiety. I hear the point Senator Norris is making, namely, that it is almost a sentence for life and one never gets out. I am interested to hear what the Minister of State has to say.

Deputy Áine Brady

At present the Bill provides that the HSE may determine that a person is likely to require care services for the remainder of his or her life. This provision, in conjunction with section 3(2) of the Bill, acknowledges that the definition of "long-term residential care services" contains a minimum time period of 30 consecutive days. Its underlying intention is to enable the HSE to commence payment of financial support from the date the person enters the nursing home rather than after the expiration of 30 days.

I appreciate the intention of Senator Norris's amendment, which is to provide for the same effect without the need for a determination regarding the likelihood of a person's care needs over the remainder of his or her life. However, I can reassure the Senator that the existing wording was the subject of very careful consideration by the Office of the Attorney General. It achieved the Government and the Senator's policy intention of ensuring that financial support can be paid from the first day of a person's time in care. However, it also ensures that the HSE may take into account whether the person is likely to require nursing home care for the remainder of his or her days or whether rehabilitative care for a period of more than 30 days would be more appropriate.

It also acknowledges the second part of the definition of "long-term residential care services", namely, that such services should exclude rehabilitative care for a period of 12 consecutive months or period aggregating 12 months within a period of 24 consecutive months. For this reason I do not propose to accept the amendment. However, I hope my response has offered the Senator sufficient reassurance on this matter.

Senator David Norris

I welcome the Minister of State's response. I am not completely satisfied. I shall mull it over. I would like to address a point made by my colleague, Senator McFadden. She is dealing with the issue in a very humane manner and feels that people might be reassured by the prospect that an elderly relative would be catered for for the rest of his or her life. My understanding is that no such guarantee is given and it is all dependent on funds being available. If the funds suddenly become unavailable, there is a problem. We cannot be content that indefinite prolonged residency is assured.

Deputy Áine Brady

An Leas-Chathaoirleach

The Cathaoirleach has deemed the amendment to be out of order. We are moving on to amendment No. 17.

Amendment No. 16 not moved.

Senator Frances Fitzgerald

I move amendment No. 17:

In page 14, between lines 25 and 26, to insert the following subsection:

"(13) The content of a care needs assessment report shall be provided to a nursing home in advance of the subject residing in and receiving care from said nursing home.".

This is a straightforward amendment. This is good practice and is already incorporated into the code of practice for integrated discharge planning published by the HSE this year. That document states that patients being discharged should receive a seamless transition from one stage of care to the next. It makes the point that one service cannot work in isolation from another and that all stakeholders must accept their interdependency and must work together to ensure there are no gaps in services or duplication of effort.

It refers also to integrated discharge planning relying on knowledge being passed between the different service providers and states that family carers, general practitioners and other service providers should be contacted at least the day before discharge to confirm the patient is being discharged and to ensure that services are activated or reactivated as appropriate. It further states that upon discharge the patient should receive an information pack, a carer's plan, medication record and so on and suggests that receipt of a referral must be tracked into a patient's record within 24 hours of that referral.

All of this is extremely practical. It puts in place in the code of practice a system that will ensure that patients' care needs are passed on efficiently between the different services used by the patient. For example, the details of an elderly person leaving hospital to go to a nursing home should be passed on. The amendment seeks to put into statutory form that the contents of a care needs assessment report shall be provided to a nursing home in advance of the subject residing in and receiving care from the said nursing home. As I stated, this is good practice. It is a good idea to include this in the legislation. It will ensure this happens automatically and that such matters are not left to the code of practice but are a requirement.

Senator Nicky McFadden

I support the amendment. It stands to reason that a database would be in situ . Where a person is moving from an acute hospital it is important that his or her medication and blood details, including their requirements, be available on an intranet within the HSE. I cannot understand why in respect of ordinary medicine this is not the case. Currently, individuals must outline their details to a doctor who must write a letter in respect of medication required and so on. It should be possible to transfer such information automatically from one facility to another.

Deputy Áine Brady

Section 7(13) provides for the content of a care needs assessment report to be provided to a nursing home with the prior consent of the subject of the assessment. I hope this clarifies the position and addresses Senators' concerns.

Senator Frances Fitzgerald

I am suggesting that it should be obligatory practice that where a person is moving from one setting to another, the care needs assessment report should be forwarded to the place to which he or she is going. That makes sense. I am not sure the section referred to by the Minister deals adequately with this matter.

Deputy Áine Brady

I cannot accept the Senator's amendment because it does not respect the rights of the individual being assessed. The provision of a care needs assessment report to a nursing home is ultimately a matter for the individual or, where relevant, the individual's representative and the nursing home. A care needs assessment report will contain sensitive information regarding a person's health and well-being, and it would not be appropriate for the HSE to ignore a person's right to confidentiality in this regard.

Specifically, it is considered that the provision of the care needs assessment report to a nursing home without a person's prior consent would be in contravention of section 2(b) of the Data Protection Act 1988 as amended by the Data Protection (Amendment) Act 2003 in respect of the processing of sensitive data. Section 7(13) was introduced on Report Stage of the Bill in the Dáil at which time Deputy Reilly welcomed the introduction of this provision, noted that it addressed his concerns that care needs assessments could be shared with nursing homes and acknowledged the absolute need for prior consent.

Senator David Norris

The Minister of State has made the effective and humane point that one must reflect and respect the wishes of the patient who may well believe there is something untoward going on or that matters are being disclosed that they do not wish the matron of the nursing home or administrator to know about. While that is an issue that must be considered, what is the position in respect of those who are incapable of giving informed consent? It appears to me that no provision is made in the Bill to look after the interests of people who cannot give consent.

The current provision relates only to people who do give prior consent. It might well be particularly valuable for the nursing home to have access to the assessment in the case of somebody who is incapable of giving consent owing to intellectual disability, illness such as stroke, and so on. I believe this to be a case where it would be particularly valuable for the nursing home to have the care needs assessment report.

Perhaps the Minister of State will give an undertaking to re-examine the amendment which may require rewording to provide that while respecting the right of individuals to withhold consent we must consider situations wherein they are incapable of doing so and it is determined that it is in their best interests that the nursing home should have access to these documents.

Senator Rónán Mullen

I agree with Senator Norris. While I accept what the Minister of State said in regard to the issue of consent, that does not deal with the whole problem. It may be the case that there should be a requirement that the content of the care needs assessment report should be provided, subject to the consent of the person involved and to incorporate Senator Norris's concerns by including, "subject to the consent of the care representative".

There remains the separate issue that subject to that consent, there be a requirement as distinct from an option on the part of those who carry out the care needs assessment report, to provide the information to the relevant facility. In other words, it is a separate issue to consider moving from "may" to "shall". We must ensure that the report is provided, subject to the consent of the person who is the subject of the report.

Acting Chairman (Senator Cecilia Keaveney)

How stands amendment No. 17?

Senator Frances Fitzgerald

I withdraw the amendment but I would like the Minister to come back to it on Report Stage if she can.

Amendment, by leave, withdrawn.

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

Senator Frances Fitzgerald

We have discussed very important issues in this section on which we have not got full clarity. The question of the multidisciplinary team assessment is a critical one but it is not sufficiently addressed.

——even though it has been ruled out of order as an amendment? That is the reason I raise it under this section. I want to know why it is included, what it means and if there is any precedent for inserting a subsection that states the State does not have to provide any services, even if the care assessment indicates that such a service is needed. What is the legal advice that states that must be put into this legislation?

Senator David Norris

I strongly support Senator Fitzgerald. This is the core of the issue. The fact that this is not rights based was referred to briefly earlier. This is the get-out cause but it was not put in by the Minister or her Department. We all know that. We know from where it came. This is the Department of Finance at it again, and it is extraordinary.

The Minister has correctly invoked humanity. No doubt there are people in the House who would invoke Christianity, the Christian response to the elderly and that society is judged by the way it treats its most vulnerable. We make an assessment of the needs and then say we might or might not cater for them, and the governing criterion will be financial. We assess the need and then say we will reserve the right to ignore it. That is astonishing. It calls into mind the parable from the Gospel: "I was sick, and you took care of me. I was in prison, and you visited me", and then nothing was done. He knew he was sick and in pain in hospital but said, "That is just too bad". We know about that but we will do nothing about it. That might be understandable in the financial circumstances we are in, but it is a great pity.

On this section, I ask the Minister to look again at the question of the capacity to give consent because I am not certain of it. I am not a lawyer and I believe the Minister, with all her intellectual distinction and charm, is not a member of the legal profession either. Her advisers may well be but perhaps the body language suggests they are not. It might be no harm to refer that section of the debate to the lawyers to determine if there is something in the question of consent.

Whatever else we might get some movement on, I do not believe we will get movement on subsection (11), the get-out clause, because we have had so many battles. Senator Fitzgerald is correct. This is the disability Bill all over again. We fought tough battles in a previous Seanad led, I acknowledge, by my colleague, Senator Joe O'Toole, to try to force it on to a rights based condition, but we failed. If we failed then, when there was, to mix a metaphor, air in the tyres of the Celtic tiger, it is very likely now that the Celtic tiger has sprung a leak, to use another mixed metaphor.

Senator Rónán Mullen

Would the Senator not say the tyres are gone a little soft?

Senator David Norris

I was trying to reproduce the eloquence of Senator O'Toole in his wonderful comment about the flat tyres of the economy, the lack of oil, the need to put water in the engine and so on, which reduced the newscasters on the RTE News to helpless laughter in the studio. I get the impression the Minister may refer this for further legal advice.

Senator Nicky McFadden

I tried to raise this issue earlier because we were going round in circles and having a good discussion on what all in this Chamber believe in, namely, the holistic care of people. Then we read the Bill and find that the HSE, the Department of Finance and the Government are completely reneging on their responsibilities to look after the elderly. The Bill states: "Where a care needs assessment is carried out, this shall not be [there is no ambiguity here] construed as meaning that the Executive will provide or will arrange for the provision of any service". What is the point of us discussing any of this if the Department has the right to do this? It is outrageous.

Senator Phil Prendergast

Hear, hear.

Acting Chairman

On that poignant note, as it is 5 p.m. I must ask that progress be reported.

Progress reported; Committee to sit again.

Seanad Éireann debate - Wednesday, 17 Jun 2009

Nursing Homes Support Scheme Bill 2008: Committee Stage (Resumed).

Seanad Éireann debate -
Wednesday, 17 Jun 2009