Nursing Homes Support Scheme Bill 2008: Report and Final Stages.

I remind Senators that they may speak only once on Report Stage, except the proposer of the amendment, who may reply to discussion on the amendment. On Report Stage, each amendment must be seconded.

I welcome the Minister of State, Deputy Áine Brady. Amendment No. 1 is in the names of Senators Norris and Bacik and arises out of Committee proceedings.

I move amendment No. 1:

In page 8, line 8, after "thereof," to insert the following:

"identified in the care needs assessment as necessary,".

I second the amendment.

I believe these amendments may be dealt with expeditiously. One or two I will withdraw but I look forward to the Minister of State, as she indicated on Committee Stage, being in a position at least to accept the principle and perhaps supply her own wording for some of the amendments. Preparatory to that, I received a communication that suggests some sections of the Bill have been changed since our last discussion. The communication came from concerned proprietors of nursing homes, who indicated the changes were made without consultation either with them or the Oireachtas. When it comes to that point, perhaps I shall refer to that again.

Also, I regret the Bill does not deal completely with some of the situations that were referred to. I say this particularly because coming here today I was, once more, solicited half a dozen times, and by a charming young woman on one occasion who said, "Hello, my name is Kerry and have you thought of contributing to" such and such. I replied that I had not and that I was not going to while indicating that we were talking about this today in the Seanad. I know the Minister of State has indicated that the Garda will be given the right to license flag days and so on, but in my view they should be confined to one day for every major charity.

In any event, the amendment refers to page 8, line 8, after "thereof," to insert "identified in the care needs assessment as necessary," and I understand I will have an opportunity to come back on this, when I have heard the Minister of State's response.

The Bill currently defines long-term residential care services as "maintenance, health and personal care services" and further stipulates that the precise goods and services which constitute maintenance, health and personal care services shall be laid before the Houses of the Oireachtas by the Minister for Health and Children — sections 3(1) and 33(2).

The Senators' amendment would introduce a contradiction into the legislation whereby on the one hand, the definition would be based on the comprehensive and complete list of goods and services laid before the House, while on the other, it would comprise any matter or service identified in any individual's care needs assessment. Thus, the definition would suffer from internal contradiction. The proposal would reconfigure the definition, making it both completely open-ended and constantly changing, depending on each individual care needs assessment. This undermines the Minister's ability to fulfil her commitment under section 33(2) and would therefore be unworkable from a legal perspective.

Furthermore, the definition of long-term residential care services, including the list of goods and services laid before the Houses, forms the basis for the published cost of a public bed and the agreed price of a private bed. The State will not be able to publish and stand over the cost of a public bed if the basis for the costing is a moveable feast contingent upon a future care recipient's care needs assessment. Similarly, the NTPF and the private nursing homes will simply not be able to negotiate effectively if the services that are provided are not clearly specified and agreed.

In addition, I understand from the Age Action Ireland policy document, from which this amendment stems, that the underlying purpose of the amendment is to include therapy services implicitly within the definition of long-term residential care services. However, as I stated on Committee Stage, the provision of and access to therapies is a matter which extends well beyond nursing home settings. As such, it must be addressed comprehensively by the forthcoming eligibility legislation. The Department of Health and Children is currently working on eligibility legislation. There is considerable confusion about what people are eligible to receive. In the context of therapy services, whether physiotherapy, occupational therapy, speech therapy, community based services or primary care, we need to bring greater clarity to the range of services available and to the issue of eligibility. The eligibility legislation is the appropriate place to deal comprehensively with this matter.

I trust the Senator will accept my very strong reasons for not being in a position to accept amendment No. 1.

I thank the Minister of State and understand her argument, particularly as regards the internal contradictions which we do not want. However, I should like to place before the Houses the reasons for proposing the amendment. The Minister of State is quite right in saying it derives from the brief of Age Action Ireland. The Bill, as it exists, proposes to inform people of long-term care needs and to place their needs into a care group and detail the costs of different aspects of care. It also promises to provide care services, defined as maintenance, health or personal care services. However, individuals will sign up to this deal on the basis of self-sufficiency. They will be partially responsible for the provision of their own care needs should therapy services be an additional, unforeseen expenditure for the Exchequer, and by this fact not affordable to the fair deal. It should have been explained to the public from the start. This funding mechanism does not allow for the capacity of individuals to make personal contributions towards services defined as additional that are very basic to their ability to participate in activities of daily living, such as talking.

I find that quite interesting and I accept what the Minister of State says about internal contradictions. She is right that despite the fairly general wording, "identified in the care needs assessment as necessary", it principally refers to services such as therapy. Could the Minister of State clarify a point for me? From Age Action's argument, which I have just read, it seems there is an implication that should a patient under the fair deal scheme or his or her advisers identify certain therapeutic treatments as necessary or beneficial, they will not be able to add them into the scheme even by paying for them. If that is the case it would be regrettable.

It is regrettable that there should be a two-tier system, but it is even worse if a person has an identified problem that can be met by a professional remedy and can afford to pay for it but cannot add that in. There is a strong argument in terms of the welfare of the patient that they should be permitted to do so. I do not approve at all of two-tier systems. We have a two-tier health system and I deplore that. However, within that two-tier system it is additionally unfair, if my interpretation is correct, that without this amendment a patient with private means would be inhibited in accessing beneficial treatments. I hope I am wrong in that. The Minister of State will have an opportunity to demonstrate whether I am wrong. If I am right, there is still a serious problem in the Bill.

The fair deal is only a scheme of financial support for long-term residential care. People with medical cards will retain them together with the entitlements those cards confer on them. People in a position to pay will be able to get service privately.

Does the Minister of State refer to extra stuff?

Even if they are part of the scheme in a public nursing home and they can afford it, can they get it in?

I apologise. I thank the Leas-Chathaoirleach. I know I am a little out of order.

I want to record to show that the answer to my question is "Yes".

Amendment, by leave, withdrawn.

Amendments Nos. 2, 6, 9, 24, 27 and 28 are related. Amendments Nos. 7 and 8 are related and are alternatives to amendment No. 6. Amendments Nos. 2, 6 to 9, inclusive, 24, 27 and 28 may be discussed together by agreement.

Could I make a little point? I ask the House's indulgence. Some of these amendments are technical and with such a large grouping we may need time to locate the position in the Bill. It is a large number of amendments spread across the Bill.

Is Senator Norris proposing we do not take them together?

I am not. I am saying let us be flexible if there are hesitations. Give us time, a Leas-Chathaoirligh. You are very flexible.

I move amendment No. 2:

In page 9, between lines 12 and 13, to insert the following:

""multidisciplinary team" means medical staff, nursing team, discharge coordinator, community services discharge liaison officer, dietician, physiotherapist, occupational therapist, speech and language therapist, pharmacist, social workers, public health liaison nurse, chaplain/spiritual advisor.".

This amendment deals with multidisciplinary teams. What the Minister of State has just said about what is included in care is very significant. She appears to be saying only bed and board is included in the 15% that will be taken from people and that other services are not included. This debate will probably continue as we go on. The Minister of State said a person with a medical card is entitled to whatever services, but although we are taking 15% from other people, they are not entitled to services such as occupational therapy, chiropody or any other services elderly people might need. The Minister of State could return to that as her statement was very significant.

On Second Stage I asked the Minister of State to outline what "care" meant and what people were entitled to by virtue of giving up 15% of their homes, and she appears to be saying they are not entitled to any of the other services. It is linked to this amendment, which proposes the Minister of State name what a multidisciplinary team is. Age Action has done much work on multidisciplinary teams. As I said on Second Stage, the people we are talking about are generally high-dependency. The assessment should not be strictly physical. It needs to examine issues such as mental health and mental capacity. It should also examine the elderly person's social and economic situation so a proper, holistic assessment can be made.

The Minister of State said "multidisciplinary" is not defined in the Bill. It is fraught with some difficulty on who should be included but it is worth trying to come up with a definition and we have suggested one in the amendment. We are not suggesting every person who is assessed needs to be seen by the entire multidisciplinary team, because they do not. The way the legislation is written allows that it would be the discipline appropriate to the case but that it would always be a geriatrician because that is built into the legislation. It is worthwhile building in a definition of a multidisciplinary team and ensuring people are assessed by the range of professionals that will make for the best assessment possible and the best outline of their care needs.

I am disappointed that even when the care needs assessment is done there is no guarantee the nursing home or care centre will receive it. It is still very flexible on whether they receive it. I respect issues of personal confidentiality but most residents would want their care needs assessment passed on so they would get the best possible care. Perhaps the Minister of State could address that in best practice regulations. We have discussed that before.

Where it is necessary, a multidisciplinary team assessment reduces the likelihood of mistakes and reduces subjectivity. We have had a long discussion in the House on the fact that what is proposed in this legislation is lacking independence. The Minister of State has not accepted, and made it clear she would not accept, any of the amendments to introduce some level of independence in making the care needs assessment or the financial assessment. The Minister of State has some minor amendment that addresses some of that in one area, namely, mental capacity.

Building into the legislation a definition of a multidisciplinary team would be helpful. By doing this and including it instead of "suitable person", the Minister of State would maintain flexibility and right of access to the team by allowing the HSE, a geriatrician, the older person and their specified person a chance to outline in the care needs assessment application the professional assessment they may feel is necessary. If one accepts this amendment, it means one can include a social worker where necessary but by keeping section 7(5)(a) the Minister of State is keeping the principle of flexibility. One would get only the team members one needs. One does not need to have all members assessing each person.

Introducing a further section down the line allowing an appeal is keeping within the principle of guaranteeing older people access to a multidisciplinary team. I would be interested to hear the Minister of State's response to this. It is helpful to name the potential members of a multidisciplinary team who might be called on. It ensures it is not a closed assessment by one geriatrician. It means the assessment is more likely to be comprehensive and in the person's best interest because all his or her needs are being assessed, and therefore the best care plan can be made for that person.

I second the amendment and fully support what I have heard from my colleague and leader, Senator Fitzgerald. Last week on Committee Stage I made the point to the Minister of State — whether she listened or heard I am not sure — that this Bill is a political challenge to her. She can decide just to process the Bill as hundreds of Ministers have processed thousands of Bills during the years in a bland administrative fashion or she can avail of the opportunity late in the processing of the Bill to make a significant lasting difference to elderly people. The amendments are not a party political challenge but a challenge to the Minister of State and her Department. They are also a challenge to the Houses of the Oireachtas to decide what future we deem suitable and necessary for elderly and maturing citizens. I fear the Bill may be a Trojan horse. It may not have been fully thought out and is simply being processed in the normal legislative fashion such that when it is passed, all these little anomalies will emerge.

I will be interested to hear the Minister of State's response to Senator Fitzgerald's question about what will be delivered to people in nursing homes for the 5%, 10% or 15% charge, which is a significant charge on their assets. When I was speaking to people at the weekend about our week in the Seanad, I explained that the debate on the Nursing Homes Support Scheme Bill had taken up a large proportion of our time. One or two people said they could not expect four star hotel treatment for €800 or €900 a week. My answer is that they should expect and demand it. If I offered any hotel a payment of €800, €900 or €1,000 a week, not just this week but also next week, next month and next year — perhaps for the next ten years — I would fully expect four or five star treatment. When the legislation is passed, I want us to be able to tell every senior and maturing citizen that we are providing not second or third class treatment and care but first-class care. That is why we need absolute clarification as to what is being provided for the fees which the taxpayer and the State and, more importantly, the elderly and their families will pay as opposed to what it might or might not be. I look forward to receiving that clarification.

I fully support what Senator Fitzgerald and others have proposed regarding the multidisciplinary team approach and structure, which is crucial. We had a substantial and worthwhile debate on the matter last week. I was impressed by the contribution of Senator Mullen who spoke at some length. He made the very interesting argument about society trying to tell people what was best for them. Let me paraphrase his comments; I believe he made the point that the nursing home solution could be presented as appropriate because a person would be safe and secure with no threat of robbery, attack etc. However, in many cases, the elderly person concerned — I am not being patronising as it is generally elderly people who are involved — might prefer to live alone in conditions which might not be marvellous but perhaps more appropriate.

It is important to have a multidisciplinary examination of every case to arrive at the correct economic social and holistic solution for the applicant for care. Anything other than a thorough multidisciplinary examination of the circumstances of the applicant and his or her family would be second rate. We have been waiting for and talking about this legislation for long enough. I certainly do not want it to be second-class legislation for second-class citizens and simply push away a problem in the belief out of sight is out of mind. We must demand first-class accommodation and care for the elderly, regardless of whether it is in the home, the community, a nursing home or district hospital. There have been so many platitudes about what society owes the people who built the country. What we owe is what we owe and what we will pay back is covered in the legislation. It is a big political challenge for the Minister of State who I appreciate is new to the job. I do not say this in a patronising fashion, but it is an opportunity for her to make a real mark by making it clear the legislation will be world-class for the people who built the country.

I ask the Minister of State to be generous in her response to our amendments which nobody could claim are party political. Last week very interesting contributions were made from the Government side of the House. I accept that when we divide and vote, people need to fly the party flag. I believe what has been proposed from this side is very constructive, positive and holistic and represents the best approach. We need further answers from the Minister of State. I would not like the Bill to be a Trojan horse in that, once it is passed, we will regard it as being grand and that we will shut the door only to start finding problems a few months and years later when we will not be able to do any repair work.

While I have been enlightened by Senator Bradford's contribution, he is mistaken in his interpretation of classical mythology. Had the ancient Greeks said, "Thank you very much" and closed the door in the face of the Trojan horse, history would have been very different. Unfortunately, they were foolish enough to let it in. I could not resist saying that because it is such a charming rewriting of the myth.

The amendments need to be taken together and read in the context of the Bill. It is interesting that the Minister of State has tabled an amendment. Section 7(5) states:

The assessment referred to in subsection (4) shall be carried out by a person or persons (who may be an employee or employees of the Executive) who, in the opinion of the Executive, are suitably qualified to make that assessment and prepare a report in relation to the assessment.

The Government amendment, amendment No. 6, proposes to remove the phrase "by a person or persons (who may be an employee or employees of the Executive)" and substitute "by persons (who may be employees of the Executive)". The effect is to make it more general, which is interesting. I am curious to learn the Minister of State's rationale for so doing. I welcome the fact that she has tabled an amendment, but I am not sure of the motivation behind it.

Section 7(6) provides for an expansion of the meaning of "care needs assessment". It includes the person's ability to carry out the activities of daily living, including cognitive ability, the extent of orientation, etc. While this is a very useful checklist, it implies the existence of people who are professionally competent to make these assessments. I am surprised at the Minister of State's hesitation in using the phrase "multidisciplinary team", especially since the HSE actually stated some time ago that this was what was happening. While I will not rehearse everything I said on the previous occasion, I referred to the learned academic papers, all of which point to the need for a multidisciplinary team. The Minister of State may argue that by combining the phrase "persons (who may be employees of the Executive)" with the checklist we are actually getting, without explicitly mentioning it, a multidisciplinary team. However, I am surprised at the diffidence involved in not spelling it out. On 26 May the Minister of State said, "By maintaining the function of undertaking care needs assessments with the HSE, the legislation ensures that the applicant has access to a multi-disciplinary team of health care professionals located close to his or her place of residence." In speaking to the Houses of the Oireachtas the Minister of State has no difficulty in using the phrase multidisciplinary team, but there is reluctance to include it in the legislation, which some would find confusing.

I strongly support Senator Fitzgerald in her definition of multidisciplinary team. I accept what she says, that it is not necessarily an exhaustive list. I am particularly glad about that because it seems that while, as she says, the team may include the various professionals mentioned and that they may be needed to investigate certain situations in which they have expertise, I would have thought that my amendment, amendment No. 9, was significant, as it proposes to insert the words, "A geriatrician will partake in each care needs assessment". This is the condition in which such persons live. They are in such residences because they are old and have certain conditions by virtue of their age. I would have thought a geriatrician was universally useful in a multidisciplinary team and that it would be absolutely necessary to have one in assessing a case. An amendment was tabled earlier concerning the addition of social workers to the category of specified persons, but even that would not resolve the issue. Social workers need to be assessing individuals, not just applying for assessments, reviews and appealing decisions. One includes a social worker in a multidisciplinary team by specifying section 7(5)(a), which is covered by amendment No. 27. There is a cluster of related amendments which all mention section 7(5)(a). That appears technical so I would like to outline the reason for seeking to insert section 7(5)(a). It is in keeping with the Bill’s principle of flexibility, in other words one only gets the team member one needs, as identified or requested by the HSE — the geriatrician or other specified person. Therefore it avoids a situation whereby one must automatically call in everybody on the team, as mentioned in Senator Fitzgerald’s amendment, for example. In addition, by including this subsection as an area of appeal, it is in keeping with the principle of guaranteeing older people access to a multidisciplinary team.

Senator Fitzgerald has underlined an important point, which we have dealt with before, identifying a defect in the Government's approach, although one understands what is happening because of the extreme financial situation in which we find ourselves. She said that older people are only guaranteed an assessment, not any particular treatment, and she is correct in that analysis. That is precisely because, as a number of Senators said on Second Stage, this is not rights-based legislation. It is a needs-based Bill, whereby people's needs are assessed and in certain circumstances fulfilled, but there is no legal obligation to do so in every case.

I will start on a positive note by welcoming the Minister of State's amendment. I may be jumping ahead slightly but it is relevant to what we are discussing. It follows from a request I made last week and I thank the Minister of State for following through on her commitment in that regard. That was essentially to move from the singular to the plural in dealing with the assessment issue. I am grateful that now the assessment cannot be a one-person job because the law will require more than one person to be involved. I thank the Minister of State for rendering my amendment unnecessary to that extent. However, I think the Bill falls far short of what is needed in the area of assessment. I support Senator Fitzgerald's comprehensive definition of "multi-disciplinary team". I may be incorrect, but in proposing an amendment that will define "multi-disciplinary team" do we not also need to argue for its direct inclusion and name it as being required?

I should make another point en passant. The difficulty in dealing with legislation at this time of the year is that it is like the 46A bus — it is all coming together pell-mell. Given the quality of the contributions I heard from my colleagues last week, I think more time is needed to allow the Government to reflect on the identified deficiencies in the spirit and letter of this legislation. Nowhere is that more obvious than in the failure to take the psychological dimension into account. The list of matters to be evaluated or taken account of in the care-needs assessment includes cognitive ability, extent of orientation and degree of mobility. All that is good but where is the reference to the person’s psychological state of mind and degree of motivation? The psychological aspect is crucial if one is to assess a person’s needs properly.

I am grateful to Senator Bradford for recalling what I said last week on Committee Stage. I clearly made the point that when decisions are being made about long-term residential care, there may be competing interests, albeit unconsciously. At the time, I said there may be well-meaning children who are just anxious that their mother is safely looked after and has three meals a day. The mother, on the other hand, might want to be independent, even if that means running the risk of falling down the stairs on occasion. I accept that my language was crude and graphic, but it may be that independence is what the person involved prizes most. That is why the care-needs assessment must be carefully considered.

I am grateful to Senator Norris for tabling an amendment which reflects specific points of concern that I raised last week. They included the need for an assessment to include the role of either a geriatrician or an old-age psychiatrist. I commend Senator Norris for his amendment that would, if accepted, require a geriatrician to partake in each care-needs assessment. The amendment should be widened to include the concept of an old-age psychiatrist, but the principle is honoured in Senator Norris's amendment, and it should be mandatory.

While I am grateful to the Minister of State for accepting the point that more than one person should be involved in making an assessment, I am not happy that the Bill provides that this assessment would take a truly holistic approach by taking account of the person's state of mind and motivation. To do so, the legislation should specifically require the involvement of an old-age psychiatrist or a geriatrician. To that extent I argue that such a role should also be included in the definition of "multi-disciplinary team", as included in the amendment tabled by Senators Fitzgerald and McFadden. In addition, there should be a requirement to have a multidisciplinary team. I thank the Minister of State for what she has done, but I do not think it goes far enough if one is to have a proper assessment of persons in need of long-term residential care who are to avail of the so-called fair deal.

Last week, I mentioned that people have a right to be concerned about the Government's approach in this area. After all, this Government has presided over a situation where, although people have an entitlement to fully paid nursing care, less four fifths of the non-contributory old age pension, the fact is that people involved in assessing older persons have been discouraged from telling them about their entitlements. I reported the words of one geriatrician who told me that when persons in need of long-term residential care were being assessed and were advised — this was before they considered getting the subvention scheme, which would cost families a lot — that they should be aware of their entitlement to the full package, less four fifths of the non-contributory pension, that was effectively frowned upon by the authorities, despite the fact that this was a constitutional right. When they were advised to go softly on advising people about their eligibility, they said "If you wish to tell us that they are not so entitled, please clarify the legal situation". They were then told cryptically, "You know the score", but what exactly was the score? Was it that the State was not willing to pay and did not want citizens to know their rights?

Absolutely. Historically, that has been the case.

While I do not fault the Minister of State, there is an absence of good faith on the Government's part and, therefore, to call it a fair deal is something of a euphemism. It is a fair deal given what is available to people, but it is not a fair deal compared to their entitlements. That is why we are concerned about a situation where four fifths of a person's income is to be taken in payment for nursing home care and up to 15% of the value of the person's home is taken after his or her death. This is a remarkable and unprecedented apportionment by the State to itself of the property of others. When one compares that with what a person might pay for private health insurance and what he or she might do with his or her resources to guarantee certain services, it is not unreasonable to suggest that people, so much of whose property is being taken from them, should be given the crème de la crème of services. That is why it should not just be bed and board. No matter how much we are coming to the rescue of different individuals, the fact is that this is a remarkable and unprecedented move by the State. In exchange for that, people should be guaranteed everything they need. They should have five-star nursing home care, including therapeutic and other services which they might need.

Many people are concerned that as a result of going into a nursing home, they will lack access to things they need, be it a chiropodist, an occupational therapist or whatever. It would be appalling if in this Bill, which is proposed as visionary and compassionate, we were shunting people into the sidings where they do not have access to the full range of services to address their needs.

I am very disappointed that the debate has fallen on deaf ears, especially in the area of quality of life and the mental health of the individual. We have tabled amendments and I am very disappointed the Minister of State has not taken on board our suggestion that mental health be taken into account as part of the evaluation of a person's ability to cope. I read out the Minister of State's evaluation last week, which included the ability to communicate, to bathe unaided and to dress, the degree of continence and cognitive ability. None of that reflects the mood of the person or what the person needs. I thought we had thrashed this out last week, and I am disappointed to see the Minister of State has not taken the time to include it in the Bill.

A dear and close relative of mine has been discharged from an acute hospital this week. I fail to understand why the Minister of State would list a nurse and a doctor as being the two people who decide on where a person should go or how the person should be managed for the rest of his or her life. This is about people and how individuals will live out their lives. I am sure the Minister of State has had family members and close friends who need to be cared for. The multidisciplinary team is all encompassing and ensures no professional will be left out. I cannot see why the Minister of State cannot use this definition and I look forward to hearing why she cannot.

My relative had a stroke ten years ago and he made a full recovery with the help of wonderful supports from occupational therapists, speech therapists, physiotherapists, the public health nurse and the general practitioner. He now needs to be reassessed after ten years for a plethora of other complaints, but it is his fervent wish that he be able to go home independently with the community support that is in place. I cannot see how the Minister of State cannot have a multidisciplinary team for every person in a nursing home.

I support Senator McFadden's statement. Many people in nursing homes have great difficulty in accessing physiotherapy, occupational therapy, speech therapy and many of the other therapies necessary for them to continue in the best possible health. A multidisciplinary team should be decided by the geriatrician and a psychiatrist with a special interest in older people as there are many disorders which affect people's mental health in later years that can be easily sorted out if they are seen by a psychiatrist with a special interest in older people. As the spokesperson on older people for my party, I would like to see a comprehensive set of proposals in place with this Bill which is an utter departure from anything we have had before.

I will speak on sections 40 and 41 when they come up for discussion. However, as this Bill has already been through the Dáil, I would be concerned that very valid contributions made by people on both sides of the House have not been taken on board. A Bill such as this will affect everyone's future, so we should do everything to the best of our ability at this time.

I indicated on Committee Stage that I would consider Senator Mullen's amendment, the effect of which is to acknowledge that assessments will be carried out by multiple persons. Accordingly, I propose amendment No. 6 which is effectively identical to amendment No. 7 and which I ask Senators to accept in place of the amendment tabled by Senator Mullen and Senator Quinn. I also carefully considered the proposal to include a definition of "multidisciplinary team" in amendment No. 2. The reason I am not proposing the inclusion of a definition of multidisciplinary team is that such an action would be very likely to have unintended consequences.

Everyone knows how complex and difficult it has been to draft this legislation. The need to consider carefully all possible consequences when amending a Bill is something to be taken seriously. Indeed, Senator Norris very astutely highlighted an unintended consequence that arose as a result of amending the Bill to reflect a proposal by Deputy Reilly in the Dáil. I thank the Senator for highlighting this issue and it is now addressed by way of a subsequent amendment tabled for consideration today.

Senator Fitzgerald and Senator McFadden's proposed definition is based on the HSE's code of practice for integrated discharge planning. With respect to the definition provided by the HSE in its document, it is clearly not intended as a legal definition. Indeed, at one point within the document it notes that the person, his or her carer and his or her family also constitute part of the multidisciplinary team. Furthermore, because it is intended as guidance rather than as a legal definition, the definition is inconsistent in the terminology used. For example, some of the terms such as "dietician" are defined in regulatory legislation, while others such as "discharge coordinator" or "spiritual adviser" are not. Furthermore, some professions are covered by generic terms which are not defined in legislation. For example, medical practitioners seem to be covered by the generic term "medical staff", while nurses are covered by the term "nursing team". This use of undefined terms, especially when mixed with terms defined in primary legislation to refer to specific regulated professions, is inconsistent and legally ambiguous.

The use of undefined terms also presents another problem. The historic structure of the health sector as eight distinct health boards, coupled with the undefined nature of the terms, has resulted in different terms being used in different parts of the country to refer to a professional undertaking a particular role.

The approach adopted in the definition recognises some specialties while ignoring others. For example, nurses specialising in public health nursing appear to be identified while nursing and medical personnel specialising in psychiatry of old age are not mentioned.

Similarly, geriatricians and psychologists are omitted. Consistency of approach is important in acknowledging and respecting each of the health care professionals who work in front-line health services and who may form part of the multidisciplinary team, as required. The danger of a prescriptive definition in primary legislation is that it may be restrictive and could omit certain professionals. Experience has shown that the omission of a particular professional from a list of designated persons within primary legislation can undermine that profession's right to undertake certain actions, even where the policy intention and the professional's training and scope of practice dictates otherwise.

The term "multidisciplinary team" is widely used across many different care areas and means different things in different care areas. For example, it is used in mental health, disability, children's and cancer services. It is also used for primary care teams and for general discharge planning for all those leaving the acute sector and not just for people in need of long-term residential care. Defining the term in primary legislation for the first time could have unintended consequences for these other care areas.

The matter of defining multidisciplinary team requires careful consideration. Accordingly, I will endeavour to examine the many complex issues I have outlined and to define multidisciplinary team in guidelines in the immediate term. I also propose to provide for this matter to form part of the review of the legislation three years from now. For these reasons, I do not propose to accept amendment No. 2.

Amendment No. 8 proposes that care needs assessments should be undertaken by a representative of the Health Information and Quality Authority, HIQA. The function of HIQA will be to register and inspect all designated centres, including public, private and voluntary nursing homes. The undertaking of care needs assessments is outside HIQA's role and would distract from its critical role as a national regulatory authority. It would also represent an inefficient use of public resources. By maintaining the function of undertaking care needs assessments within the HSE, the legislation ensures the applicant has access to a multidisciplinary team of health care professionals located close to the applicant's place of residence. Such health care professionals will be engaged simultaneously in the provision of care either within the acute sector as part of primary care teams or in the community setting generally. The transfer of this function to HIQA would require significant dedicated resources to be provided with a resulting drain on the provision of front-line health care staff from the HSE. The fact that HIQA is a centralised regulatory authority would also present problems in term of providing efficient and cost-effective assessments to applicants at local level. I do not propose to accept the amendment.

Amendment No. 9 and amendments Nos. 24, 27 and 28, which are consequential on amendment No. 9, raise the same issues as amendment No. 2. Amendment No. 9 refers to a team and, therefore, requires a definition of "multidisciplinary team". It also requires mandatory assessment by a geriatrician. This is contrary to the policy intention that care needs assessments would be flexible and person-centred and would involve assessment by various health care professionals as required. In the cases of people who are already in a nursing home, assessment by a geriatrician will not be necessary. A mandatory requirement would divert a health care resource that is already much in demand. Not only would this be inefficient in terms of the use of resources, it would also impact on applicants by increasing the overall waiting times for assessments. For these reasons, I do not propose to accept amendments Nos. 9, 24, 27 and 28.

I thank the Minister of State for a detailed reply which I do not find convincing. It will be to the detriment of those who will go into nursing homes that she will not accept this range of amendments and in their interests for her to accept them. Even if the Minister of State does not accept the amendments, she should have tabled amendments outlining a response to key concerns raised by Senators in this House about the potentially narrow and ultimately detrimental nature of the assessment that would be made. The Government should have provided a definition of "multidisciplinary team". The Minister of State has outlined a series of concerns about the definition of the term and these could have been dealt with in legislation. She has some concerns about dealing with this in primary legislation. If it had been dealt with by the Minister of State, she could have produced a definition of "multidisciplinary team", which would mean that the assessment would be better for the individual. The Minister of State does not want to accept the definition suggested by this amendment, even though it comes from the code of practice of the HSE. I welcome the fact that regulations will be developed. I reiterate how important this is and that assessment should be multidisciplinary in many cases to deal with the complex needs of the high dependency individuals being assessed.

Senator McFadden referred to mental health. It is important that this is written into the regulation because it is not clear at present. The definitions in this legislation are very focused on the physical aspect and are very narrow. The four professions referred to in the legislation are very narrow. The regulations must address the fact that what we want to see in most cases is a multidisciplinary team assessment, if necessary beyond the four practitioners mentioned in the amendments. I am very concerned that this will not be done if it is not included in primary legislation. There will be fewer good quality care assessments. If the quality of the assessment is not good enough, the quality of care will be compromised. I am very concerned about this. I regret that the Minister of State has found fault with these amendments. She should have tabled amendments that dealt with the issues outlined and should have taken into account the arguments made while dealing with the underlying issue, that being the need for a multidisciplinary team assessment.

I assure Senators that I gave great thought to their valuable contributions on Committee Stage. The care needs assessment is holistic in nature. It is broad and inclusive by virtue of the fact that any other matter that affects people's ability to care for themselves, as referred to in section 7(6)(d), the category concerning family and community care, and all such issues will be taken into when undertaking a care needs assessment. The guidance document on care needs assessment being prepared by the HSE takes into account a person’s views and preferences and mental health. The person undertaking the care needs assessment must be suitable, a term defined in section 3 as meaning that “the person has the necessary qualifications, training or experience ... to perform that function”. This ensures all members of the multidisciplinary team can take part in the assessment. The term is all-encompassing and does not omit any professional. I will examine the many complex issues in defining multidisciplinary teams in the guidelines and I will also propose that this matter be part of the review in three years’ time.

Amendment put.
The Seanad divided: Tá, 20; Níl, 23.

  • Bacik, Ivana.
  • Bradford, Paul.
  • Burke, Paddy.
  • Buttimer, Jerry.
  • Cannon, Ciaran.
  • Coffey, Paudie.
  • Coghlan, Paul.
  • Cummins, Maurice.
  • Fitzgerald, Frances.
  • Hannigan, Dominic.
  • Healy Eames, Fidelma.
  • McCarthy, Michael.
  • McFadden, Nicky.
  • Mullen, Rónán.
  • Norris, David.
  • Phelan, John Paul.
  • Regan, Eugene.
  • Ross, Shane.
  • Ryan, Brendan.
  • Twomey, Liam.

Níl

  • Boyle, Dan.
  • Brady, Martin.
  • Butler, Larry.
  • Callely, Ivor.
  • Carty, John.
  • Cassidy, Donie.
  • Corrigan, Maria.
  • Daly, Mark.
  • de Búrca, Déirdre.
  • Ellis, John.
  • Feeney, Geraldine.
  • Hanafin, John.
  • MacSharry, Marc.
  • Ó Domhnaill, Brian.
  • Ó Murchú, Labhrás.
  • O’Brien, Francis.
  • O’Donovan, Denis.
  • O’Malley, Fiona.
  • Ormonde, Ann.
  • Phelan, Kieran.
  • Walsh, Jim.
  • White, Mary M.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Maurice Cummins and Eugene Regan; Níl, Senators Déirdre de Búrca and Diarmuid Wilson.
Amendment declared lost.

Amendment No. 3 in the names of Senators Mullen and Quinn is deemed to be out of order as it involves a potential charge on Revenue. Amendments Nos. 4 and 5 in the names of Senators Norris and Bacik are also deemed to be out of order for the same reason.

Amendments Nos. 3 to 5, inclusive, not moved.
Government amendment No. 6:
In page 13, 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)".
Amendment agreed to.
Amendments Nos. 7 and 8 not moved.

I move amendment No. 9:

In page 13, between lines 9 and 10, to insert the following:

"(a) Assessment shall be carried out by individuals within the team as specified by the Health Service Executive, the relevant person, or a specified person.

(b) A geriatrician will partake in each care needs assessment.”.

I second the amendment.

Amendment put. The Seanad divided: Tá, 20; Níl, 24.

  • Bacik, Ivana.
  • Bradford, Paul.
  • Burke, Paddy.
  • Buttimer, Jerry.
  • Cannon, Ciaran.
  • Coffey, Paudie.
  • Coghlan, Paul.
  • Cummins, Maurice.
  • Fitzgerald, Frances.
  • Hannigan, Dominic.
  • McCarthy, Michael.
  • McFadden, Nicky.
  • Mullen, Rónán.
  • Norris, David.
  • Phelan, John Paul.
  • Quinn, Feargal.
  • Regan, Eugene.
  • Ross, Shane.
  • Ryan, Brendan.
  • Twomey, Liam.

Níl

  • Boyle, Dan.
  • Brady, Martin.
  • Butler, Larry.
  • Callely, Ivor.
  • Carty, John.
  • Cassidy, Donie.
  • Corrigan, Maria.
  • Daly, Mark.
  • de Búrca, Déirdre.
  • Ellis, John.
  • Feeney, Geraldine.
  • Glynn, Camillus.
  • Hanafin, John.
  • MacSharry, Marc.
  • Ó Domhnaill, Brian.
  • Ó Murchú, Labhrás.
  • O’Brien, Francis.
  • O’Donovan, Denis.
  • O’Malley, Fiona.
  • Ormonde, Ann.
  • Phelan, Kieran.
  • Walsh, Jim.
  • White, Mary M.
  • Wilson, Diarmuid.
Tellers: Tá, Senators David Norris and Feargal Quinn; Níl, Senators Déirdre de Búrca and Diarmuid Wilson.
Amendment declared lost.
Sitting suspended at 1.25 p.m. and resumed at 2.15 p.m.

I move amendment No. 10:

In page 14, lines 4 and 5, to delete "during the person's lifetime" and substitute "for a period of no less than 1095 days".

If I am correct, this amendment specifies a period of no less than 1,095 days. While I have made the argument on this point previously, I will restate it. It is questionable for the executive to determine that someone is unlikely to cease to require services, should the executive wish to prove that someone needs long-term care and wishes to set up the financial arrangements now, rather than after 30 consecutive days. This can be approached in the manner I have suggested in the amendment. In the opinion of my advisers, this would be a better way of doing it, which would clean up the situation and open up the possibility of hope. This was the point I made the last time, namely, that it would not act to seal people in. I will leave that point before the Minister of State.

I second the amendment.

The Bill provides that the Health Service Executive 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 in the remainder of his or her lifetime. However, I reassure the Senator that the existing wording was the subject of careful consideration by the Office of the Attorney General. The wording reflects the advice of that office. At the same time, it achieves the policy intention of both the Senator and the Government of ensuring financial support can be paid from the first day of a person's time in care. For this reason, I do not propose to accept the amendment. However, I hope my response has offered the Senator sufficient reassurance on the matter.

I am happy to withdraw the amendment, particularly in the light of the assurances provided by the Minister of State that the most important point has been met, namely, that financial strain and worry will be removed as soon as possible.

Amendment, by leave, withdrawn.

I move amendment No. 11:

In page 14, to delete lines 26 to 28 and substitute the following:

"(13) The content of a care needs assessment report will be provided to a relevant facility or approved nursing home.".

Again, there was extensive discussion on this issue the last time. The purpose of the amendment is to assist in the provision of proper care. While I acknowledge the Minister of State responded, it seemed to be important that the home or place of care should be in possession of the assessment as carried out. Obviously, if the staff of such a facility are trying to cater for a person's needs, they should have the opportunity to avail themselves of the professional opinions of those who have made such an assessment. The briefing I have been given states the content of a care needs assessment report may be provided under section 7(13) for a relevant facility with the prior consent of the person who is the subject of the report. It goes on to refer to how a specified person can act in respect of an application or appeal. I wonder whether this is the correct brief.

The amendment pertains to the care needs assessmentreport.

Yes. A specified person can act in respect of an application, appeal or review on behalf of another individual who does not have capacity. However, capacity in the Bill is task-related. Under section 21(1), there is an assumption that until the contrary is established, a person has full mental capacity. The mental capacity assessment, as outlined in section 21(1), undertakes to assess the person's capacity to make the application and consent to the charge on his or her home. It does not consider the person's capacity to consent to the sending of the personal information contained in his or her care needs assessment report to a relevant facility or approved nursing home.

A second but related issue is that on closer examination, one may question whether a care representative actually can be a specified person, as the specific explicit role of the care representative has been outlined in section 21(7). Section 47(1) adds to the duties the care representative may undertake as a specified person but is in contradiction of the principle of section 21(7). This issue is rather complicated and I have spoken to my good friend about the manner in which these materials are presented in order to make them more accessible and easier for Members of the Oireachtas. However, this appears to address the question of providing and giving consent for the provision of relevant material for the appropriate facility. On practical grounds, it appears to be a good idea that it should be permitted.

I second the amendment.

Section 7(13) provides for the content of a care needs assessment report to be provided for a nursing home with the prior consent of the subject of the assessment. 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 for a nursing home ultimately is a matter for the individual or, where relevant, his or her representative and the nursing home. A care needs assessment report will contain sensitive information on 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 for a nursing home without a person's prior consent would be in contravention of section 2B of the Data Protection Act 1988, as amended by the Data Protection (Amendment) Act 2003, on the processing of sensitive data. Section 7(13) of the Bill was introduced in the Dáil on Report Stage. At the time Deputy Reilly welcomed the introduction of this new 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. Therefore, I do not propose to accept the amendment.

Is the amendment being pressed?

While there is not much point in pressing it, I wish to note that this suggestion has been made to me clearly. I understand the sensitivity if there is an expressed wish by the patient not to permit such provision of information. This is a question of human rights and the responsibilities and rights of the individual. However, as the Minister of State is aware, there are many instances in which a person's faculties may have deteriorated. People may not be in a position to make such a decision clearly, whereas at the same time it may be in their interests for the facility to have access to this assessment in order to provide the appropriate treatment. The information that has been passed on to me suggests the Minister of State's observations on the specified person or the care representative may not be legally covered in the Bill. In other words, the people from Age Action Ireland who briefed me have suggested there is a lacuna in the Bill in this regard. The patient may fall between the two situations. The specified person or care representative acting on behalf of a person who is incapacitated in the manner I have described may not, in fact, have the authority to pass on the contents of the report, even though it may be in the interests of such a person for that to be done. That is the point I am making. I do not propose to pursue the amendment to a vote because it would be a completely fruitless exercise.

Amendment No. 32 will put it beyond doubt that a specified person may consent to the sharing of a care needs assessment if the person who is the subject of the report lacks the capacity to so do.

It is most helpful that an amendment is to be proposed in response to what we have said. I welcome what the Minister of State has said about amendment No. 32.

Amendment, by leave, withdrawn.

I move amendment No. 12:

In page 16, line 26, after "Act." to insert the following:

"The percentage value accruing to the Executive under this part shall not exceed 15 per cent of the estimated market value established under section 10.”.

This amendment attempts to set out what will happen when a house that was valued when its owner entered a nursing home loses some of its value thereafter. I am worried that, as things stand, the State might end up, upon probate, taking more than 15% of the value of the home. I would like to hear what the Minister of State has to say about Age Action Ireland's suggestion that, in line with Government policy, an individual should be guaranteed not to have to pay more than 15% of the value of his or her home to the HSE upon the relevant event, or the deferred relevant event.

I second the amendment. Fine Gael is supporting this proposal which was discussed on Committee Stage.

I support the amendment, to which I have added my name. The Minister of State will recall that I invaded my own privacy during the Committee Stage debate when I gave an example of a parallel situation of unfairness. When I inherited a small number of stocks and shares some years ago, it took two and a half years to get them out of probate. They were valued for testamentary purposes at the height of the market. I had to make a payment on the basis of the height of the market value, even though the first opportunity I got to sell them was when the market was at the lowest point. The amount I paid was much more than the real value of the shares. The point Senator Mullen is making is that the market value of the property could decrease. It would be unfair to charge somebody on the basis of a valuation that is no longer applicable. For this reason, I support the amendment strongly.

Amendment No. 12 stipulates that the cap would be set at 15% of the market value of the principal residence at the time of the original application for State support. I will set out why I consider that the approach provided for in the Bill, as it stands, is fairer and more favourable for applicants. The cap is applied after the first three years of care. In the case of a single person, the contribution payable is a maximum of 5% per annum, resulting in a total capped contribution of 15% if the person spends three or more years in care. In the case of a couple, the maximum contribution payable by each member is 2.5% per annum, resulting in a total capped contribution of 7.5%. The three-year cap for which we are providing acknowledges the circumstances of couples by limiting the contribution of each member to 7.5%. Moreover, by capping contributions by reference to a time period, it has been possible to extend the cap retrospectively in order that people currently in care can benefit from having their existing time in nursing home care taken into account. In a climate of declining property prices such as that we are experiencing a person can avail of the financial review mechanism provided for in the Bill to reduce the contribution payable on his or her principal residence in line with the declining value of the property in the second or third year. A straightforward 50% cap, based on the original valuation of the property, would not achieve this. While the Bill provides for the cessation of contributions after the first three years of care, it also takes account of the time value of money, in other words, inflation or deflation. This is fair, as the taxpayer is offering, in effect, an interest free loan under the scheme. This measure is also important from the perspective of financial sustainability, particularly in the light of the generous system of further deferral offered within the scheme. The system of further deferral could result in families deferring the repayment of contributions for 50 or 60 years if they wish to do so. In such circumstances, it is fair and just that the time value of money is acknowledged. For all these reasons, I do not propose to accept amendment No. 12.

As I said during the debate on earlier amendments, something dramatic seems to be at work in this legislation. It seems the State is to be permitted to appropriate a significant portion of a person's property to itself. If, as a result of a change in the market value of housing, the amount being taken were to be more punitive than 15% of the value of the property at the time the State is appropriating it to itself, then that would be excessive. Clearly, this is a technical and complex matter. I acknowledge what the Minister of State has said about the taxpayers' contribution and accept that the Government has to have regard to the interests of taxpayers. However, I ask her to reconsider whether what is being proposed will be more punitive than is widely understood.

As a signatory to the amendment, I accept the very good case made by the Minister of State. I withdraw my support for the amendment.

The legislation provides for a financial review. That is the most important aspect of it.

It averages out over three years.

That is a very valid point.

Amendment, by leave, withdrawn.

Recommittal is necessary in respect of amendments Nos. 13 to 16, inclusive, and amendments Nos. 22 and 23 as they do not arise from Committee Stage proceedings.

Bill recommitted in respect of amendments Nos. 13 to 16, inclusive.

I would like to raise a technical point of order. Why was the Bill not recommitted in respect of Government amendment No. 6? If it needs to be recommitted in respect of amendments Nos. 13 to 16, inclusive, and Nos. 22 and 23, presumably it should have been recommitted in respect of the earlier amendment No. 6.

I am looking for some guidance on this issue.

The effect of recommittal is that the debate is not restricted. Senators may speak more than once on this group of amendments.

I thank the Cathaoirleach for his guidance, but I do not understand why the same was not done in the case of amendment No. 6.

Amendment No. 6 has been dealt with.

Amendments Nos. 13 to 16, inclusive, and Nos. 22 and 23 are related and may be discussed together.

We are not dealing with amendment No. 32.

Government amendment No. 13:
In page 22, to delete lines 31 to 34 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.”.

These technical amendments clarify matters in relation to the charging order and its release. Amendment No. 13 clarifies the authority of the Health Service Executive to make charging orders. Amendment No. 14 clarifies the responsibility of the Property Registration Authority to register charging orders submitted to it by the HSE. These amendments are being proposed on foot of observations by a stakeholder to the effect that the authority of the HSE and the responsibility of the PRA in relation to charging orders should be explicitly, rather than implicitly, provided for. Amendment No. 15 which proposes to include a new section 17(8) in the Bill has been proposed on the advice of the Office of the Attorney General. Section 17(8) currently provides that ancillary State support paid by the HSE and secured by mortgage may be recovered as a contract debt. The amendment provides that such moneys may be recovered irrespective of whether they are secured by a mortgage. This acknowledges that the moneys will have been paid by the HSE even if the mortgage is subsequently declared invalid for some technical reason.

Amendments Nos. 16 and 23 shall be read together. Currently, section 7(14) refers to both charging orders and the release of charging orders. However, the more appropriate location for the issue of the release of charging orders is section 28. Amendment No. 16 therefore removes the reference to release of charging orders from subsection (14) while amendment No. 23 ensures the relevant reference is reflected instead in section 28.

Finally, amendment No. 22 amends section 28(4) to ensure the format of receipts as well as applications may be prescribed by regulation. I ask Senators to support these amendments.

I thought amendment No. 23 was included in this grouping of amendments.

The grouping includes amendment No. 22.

What about amendment No. 23?

It includes amendment No. 23.

Yes, amendments Nos. 22 and 23 are being read together.

Quite a number of these amendments that the Minister of State proposes to insert on the advice of the Attorney General appear to be technical in nature. Amendment No. 13 seeks to ensure the executive is satisfied payment is in order before payment is made. That is fairly straightforward.

I take it that amendment No. 14 is a routine legal procedure to register an order affecting the land.

If it is a routine legal procedure, why has it to be inserted in this way? Perhaps the Minister of State could explain that. It may well be simply a routine amendment that is inserted in legislation where property has to be registered or handed over.

I have some questions concerning amendment No. 15. Will the Minister of State explain the problem with the previous provision and the reason she is seeking this change? Will she spell out if she is extending the power of the State to recoup money from a resident or from his or her family? Is she trying to make it easier, even if there is not a mortgage in place, for the executive to go to the courts to recoup money that may be owed? I am not clear as to the reason the Minister of State proposes to make this change and what the financial impact of it will be on the families concerned. The Minister of State might explain that.

Has the Minister of State taken amendment No. 17 in this grouping?

The other two amendments appear to be fairly technical.

It is precisely on those two technical amendments that I want to engage with the Minister of State. The reason I asked about amendment No. 23 was that the Minister of State concluded her remarks by saying "Finally, amendment No. 22" and I thought she might have inadvertently omitted amendment No. 23. Rather than taking them together, it appeared as if she was concluding her comments on amendment No. 22.

As Senator Fitzgerald said, these amendments are quite technical. They cover an area on which I am not fully competent but the ordinary citizen is entitled to exhibit his or her ignorance and have it amended by an intelligent reply from the Minister. I am concerned about this because the public perceive there to be a vulnerability in terms of electronic exchanges. They can be subject to hacking, interfered with in various ways and the authenticity or validity of exchanges made by computer has, on occasion, been called into question. There is the possibility of fraud being committed. To a certain extent this is a matter that is being considered here. In other words, we are trying to make sure the person who makes the electronic application or transfers legal documents electronically is the appropriate person. Why is there no reference, for example, to establishing the fact that the person concerned is the appropriate person and not a fraudulent person attempting to make an electronic contract? That is the particular matter that concerns me regarding amendment No. 23.

Amendment No. 16 is technical, proposing a change in the form of words used. I am concerned about fraud in this respect. I am not sure if that is what was in the Minister of State's mind in tabling this amendment, but it is what is in my mine in this respect, namely, if an inappropriate person were to use a computer to intervene either for fraudulent reasons, I do not know whether that would be significant in this case, or simply to cause trouble. There are mischief makers and people, including some family members, who enjoy making trouble.

The only change proposed in amendment No. 15 is the inclusion of the words "of ancillary State support". What do those words mean? Do they mean any amount paid by way of ancillary State support? That could mean anything I suppose. I would like the Minister of State to outline clearly what it means.

On amendment No. 14 regarding the property registration authority, while it is acknowledged that this is a routine procedure, we would still like to have it specified explicitly in the primary legislation.

On section 15(a), as I understand it, the Office of the Attorney General was concerned that this provision would be consistent with sections 16 and 26 in terms of the requirement to repay moneys paid by way of ancillary State support, which is the loan element of the fair deal scheme.

On section 15(b), we are simply ensuring that if by some chance the mortgage upon which a charge is registered fails due to a technicality, the HSE will be able to recover it as a debt anyway.

Amendment agreed to.
Government amendment No. 14:
In page 23, 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.".
Amendment agreed to.
Government amendment No. 15:
In page 23, to delete lines 14 to 17 and substitute the following:
"(8) Any amount paid by way of ancillary State support, whether or not it is 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.".
Amendment agreed to.
Government amendment No. 16:
In page 24, to delete lines 5 and 10 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.".
Amendment agreed to.
Bill reported with amendments.

Amendments Nos. 17, 19 and 21 are related, amendment No. 18 is related and an alternative to amendment No. 17 and amendment No. 20 is related and an alternative to amendment No. 19. Therefore, amendments Nos. 17 to 21, inclusive, may be discussed together.

Government amendment No. 17:
In page 28, 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 express 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.".

Amendment No. 17 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 care representative has a very limited function under section 21 which extends only to matters relating to ancillary State support and the creation of a charge. However, the proposal represents a further safeguard for the person and is consistent with guiding principles contained in the proposed mental capacity legislation.

Senators will note that the proposal reflects my commitment to accept, in principle, Committee Stage amendment No. 22 by Senator Norris. Accordingly, I ask Senators to support this amendment in place of amendment No. 18.

Amendment No. 19 similarly reflects a commitment, in principle, made on Committee Stage. It explicitly excludes from the categories of care representative any medical practitioner involved in the assessment of the person's capacity. This is consistent with the overall policy intention of section 21 and mirrors the intent of amendment No. 20. I therefore ask Senators to support this amendment in place of amendment No. 20.

Finally, amendment No. 21 proposes to stipulate that an assessment officer must have sufficient expertise, must sufficiently communicate with the applicant and must note the applicant's needs or preferences regarding the decisions concerned.

With regard to the issues of expertise and communication, medical practitioners undertaking functional assessments of capacity will be bound by their own code of ethics and ensure such assessments are undertaken in a thorough and robust manner. Moreover, the functional nature of the assessment absolutely requires that a person must be provided with all relevant information in a manner which is most easily accessible for them and that he or she must be supported to communicate his or her decision in any way possible. The person's needs and preferences in respect of the decision will be noted by the practitioner. Amendment No. 17 also ensures these will be formally noted by the court.

For the reasons I have outlined, amendment No. 21 is unnecessary. However, the Department of Health and Children is working on the guidance documents which will support medical practitioners in undertaking assessments under section 21 and highlight all of the important considerations associated with the functional test of capacity.

I welcome amendment No. 17 which provides an additional safeguard and has regard to the expressed wishes, if known, of the relevant person concerned and his or her circumstances. The amendment also covers the appointment of a person to be a care representative. We had a lengthy debate on this matter on Committee Stage to which Senators Mullen and Norris also contributed. I am of the view that the amendment covers the issue about which we were concerned.

I welcome the Minister of State's flexibility in accepting the principle behind amendments in respect of which we made substantial arguments on Committee Stage. It was for this reason — namely, the improvement of legislation — that the Seanad was established. Legislation can only be improved with the co-operation of an intelligent Minister or Minister of State. It is lucky that we are in the presence of such an individual today.

I thank the Minister of State for tabling amendment No. 17, particularly in the light of the fact that Members expressed grave concerns about this matter on Committee Stage. I appreciate the fact that she listened to our arguments. It is proposed in amendment No. 18 that the phrase "and particular regard to the expressed, verbal or written wishes of the person" should also be included in the section. In that context, if someone with motor neurone disease or a similar condition makes a written request before he or she becomes completely incapacitated, it is important that it be taken into account.

I also thank the Minister of State for tabling amendment No. 17 which goes some way towards making the relevant provision more humane and personal. It is important that the expressed verbal or written wishes of a person be taken into account. I welcome the comprehensive nature of amendment No. 17 in this regard.

Amendment agreed to.
Amendment No. 18 not moved.
Government amendment No. 19:
In page 29, to delete lines 27 to 30 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.".
Amendment agreed to.
Amendment No. 20 not moved.

I move amendment No. 21:

In page 33, between lines 41 and 42, to insert the following:

"(44) For the purposes of section 21(43) this Act shall ensure individuals are assisted by the Executive in their effort to demonstrate capacity—

(a) The assessment officer should be obliged to provide an education service where it is guaranteed a person with appropriate expertise would assist in the carrying out of the assessment.

(b) The assessment officer should ensure that the person carrying out an assessment would communicate with the applicant in a manner which facilitates appropriate participation, promotes dialogue about the nature of the assessment and that note is taken of the views (if any) of the applicant concerning his or her needs or preferences in relation to the decision concerned.”.

Amendment put.
The Seanad divided: Tá, 20; Níl, 23.

  • Bradford, Paul.
  • Burke, Paddy.
  • Buttimer, Jerry.
  • Cannon, Ciaran.
  • Coffey, Paudie.
  • Coghlan, Paul.
  • Cummins, Maurice.
  • Fitzgerald, Frances.
  • Hannigan, Dominic.
  • McCarthy, Michael.
  • McFadden, Nicky.
  • Mullen, Rónán.
  • Norris, David.
  • O’Toole, Joe.
  • Phelan, John Paul.
  • Quinn, Feargal.
  • Regan, Eugene.
  • Ross, Shane.
  • Ryan, Brendan.
  • Twomey, Liam.

Níl

  • Boyle, Dan.
  • Brady, Martin.
  • Butler, Larry.
  • Callely, Ivor.
  • Carty, John.
  • Corrigan, Maria.
  • Daly, Mark.
  • de Búrca, Déirdre.
  • Ellis, John.
  • Feeney, Geraldine.
  • Glynn, Camillus.
  • Hanafin, John.
  • MacSharry, Marc.
  • Ó Domhnaill, Brian.
  • Ó Murchú, Labhrás.
  • O’Brien, Francis.
  • O’Donovan, Denis.
  • O’Malley, Fiona.
  • Ormonde, Ann.
  • Phelan, Kieran.
  • Walsh, Jim.
  • White, Mary M.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Maurice Cummins and Nicky McFadden; Níl, Senators Déirdre de Búrca and Diarmuid Wilson.
Amendment declared lost.
Bill recommitted in respect of amendments Nos. 22 and 23.
Government amendment No. 22:
In page 40, line 3, to delete "An application undersubsection (3)” and substitute the following:
"A receipt undersubsection (1) and an application under subsection (3)”.
Amendment agreed to.
Government amendment No. 23:
In page 40, between lines 4 and 5, to insert the following:
"(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.”.
Amendment agreed to.
Bill reported with amendments.
Amendment No. 24 not moved.

Amendments Nos. 25 and 26 are related and may be discussed together by agreement of the House.

I move amendment No. 25:

In page 41, between lines 6 and 7, to insert the following:

"(b) where a person is assessed as in need by reason of categories outlined in section 7(6)(c), reviews will be offered at a minimum of every 6 months and no later than every 12 months;”.

This is about the frequency and spacing of reviews and seems to be a perfectly logical amendment to make.

I second the amendment.

I support this amendment. It makes absolute sense that people's situations would be reviewed and we discussed that there might be a change in a person's health in that it might improve. I agree there must be regular reviews and not later than 12 months.

I look forward with interest to what the Minister of State has to say on this. I presume there will be some mechanism. The Minister of State touched on this issue when we spoke on Committee Stage but perhaps she would clarify for the record. If there are changes in circumstances, there will have to be some accommodation. I would welcome clarification on how that will be done.

I understand the intent of amendment No. 25 is to provide for situations where a person is in nursing home care but could return to his or her community if sufficient community-based supports and services were in place. It stipulates that the HSE would offer to undertake a review of care needs every six months and no later than every 12 months to ascertain whether the person could move back to a community-based setting. A person may seek such a review under section 30 at any time. As such, this amendment is unnecessary and I do not propose to accept it. I hope my clarification addresses the Senators' underlying concern.

Amendment No. 26 proposes that all reviews be undertaken by people who have not been involved in a previous assessment. While I appreciate the good intention of this amendment, the review mechanism is different in purpose from the appeal mechanism. The initiation of a review does not indicate confrontation or disagreement with a decision. Rather, it is a mechanism by which changes in a person's circumstances or issues which were perhaps overlooked in an initial assessment may be brought to attention and taken into account.

Under the subvention scheme, subvention recipients generally undergo an annual review of their financial circumstances. In many cases recipients will have depleted their assets or may have reached the three-year cap in respect of their principal private residence and these factors can be taken into account in determining the future level of subvention payable. A review of care needs will be undertaken by health care professionals on the same basis as the original care needs assessment.

Given that some individuals may require assessment by particular dedicated specialists and that these specialists are limited in number, it would be wholly imprudent to stipulate that a review of care needs could not be undertaken by an individual who was a member of the original multidisciplinary team. In many cases it would be highly beneficial for the same practitioners to reassess a person periodically. It would ensure a continuity of care whereby the practitioners will be known to the individual and will have a solid knowledge of the person's previous health status and circumstances. For these reasons I do not propose to accept amendment No. 26.

The Minister of State is correct in her interpretation of what we were saying. Because funds for community services are not earmarked in the HSE, the Minister of State has no idea of the availability of services in the medium to long term and can assess only in the short term. This presents a real need for re-assessment of the client every 12 months where lack of available services is a determinant in their need for residential care. If community care becomes available the individual should be facilitated to return to the community should this concur with their wishes and in accordance with current Irish policy, which is the point the Minister of State was making. This is especially important given that low-dependency patients may be under pressure to enter nursing home care from their acute sector bed owing to the acute care charge. The Minister of State is correct. While I am not 100% satisfied with what she has said, she has gone some way to assuaging my concerns.

Regarding amendment No. 26 and the idea that the person doing the reassessment should not be the same person who did the assessment, I take it the Minister of State is saying there is provision that it need not necessarily or automatically be the same person. I can accept that there may be circumstances in which it is appropriate for it to be the same person. The Minister of State makes a clear and cogent distinction between "review" and "appeal", but one must bear in mind all the time that these are vulnerable people. Unfortunately, there have been situations in some hospitals where consultants, on whom the community would normally place a high degree of reliance, have violated that trust. To have someone such as that reviewing their own practice and recommendations for treatment would not be appropriate, so one has to be concerned. I presume this is why Age Action Ireland has expressed an interest in this matter.

I will not press the amendment because it would be fruitless. However the Minister of State has, yet again, returned to the issue of the limited number of specialists available in this country. That indicates an underlying problem and we are unlikely to solve it in these economic circumstances. It suggests there is a defect. Time and again in the discussion of this Bill the Minister of States has referred to the scarcity of personnel resources and that a limited number of people have the qualifications necessary to deal with particular circumstances. That is worrying and I hope this is addressed when the upturn in the economy comes, as it surely will. I am not sure when it will come as I am not gifted with prophecy.

It is very worrying that the financial figures according to the OECD report released at lunchtime, appear to be very significantly worse — 2% — than the Government had predicted. That is a very dramatic situation which must worry everyone regardless of party affiliation or lack thereof. We are told there may be some stabilisation in 2010. While I accept that in these circumstances one must confront a situation where there is limitation in professional expertise, at the very next available opportunity this should be one of the priorities of whatever Government is in place at that point. It should be unacceptable in a wealthy, western society that we have to make excuses for inadequacies or use as an alibi for a less than perfect system the fact that there is a shortfall in the number of experts.

I am involved in the Joint Committee on Foreign Affairs. I have a couple of amendments remaining, most of which have already been discussed. I have asked Senator Fitzgerald if she would very kindly move them in my absence. I will return for the vote but I have to leave the House now.

Amendment, by leave, withdrawn.
Amendments Nos. 26 to 28, inclusive, not moved.

Amendments Nos. 29 and 30 are out of order because they may incur a potential charge on Revenue.

Amendments Nos. 29 and 30 not moved.

May I comment on that?

I am sorry but I am informed the Senator cannot comment on it.

May I make a point of order? I am not sure if it is a point of order but perhaps the Acting Chairman can rule on it. I want to express my disquiet that substantial amendments which touch on how things are to be done to ensure fairness in the system cannot even be discussed by the Seanad.

I know Senator Norris has already made this point regarding several other amendments. This is not the first time that one of my amendments has been nobbled today. I tabled an amendment seeking to include other categories of persons under the definition of couple, for example. Some of these amendments go to the heart of what the Bill is supposed to cover. I want to register my disquiet.

I reluctantly must interrupt the Senator. These amendments have been ruled out of order in accordance with Standing Orders and long established practice. I apologise. The Cathaoirleach has ruled on the matter.

I move amendment No. 31:

In page 50, to delete lines 31 to 35 and substitute the following:

""(3) Where the Board has formed the reasonable view that the price at which long term residential care services is proposed to be provided by a particular nursing home is, all things being equal, materially in excess of the price at which long term residential care services are provided by other comparable nursing homes the Board shall have the power to request, by notice in writing, that the said nursing home provide the Board with a written explanation of the calculation of the price at which long term residential care services is proposed to be provided by such nursing home. In the event that the Board is not satisfied with a written explanation received under the terms above it shall have the power to request that the Minister as soon as is practicable, by notice in writing to such nursing home, designate a person to examine the records and accounts of such nursing home and to subsequently report the findings of such examination to the Minister and to the nursing home in question. A refusal on the part of a nursing home to comply with any notice pursuant to this section shall be construed as a withdrawal on the part of such nursing home from negotiations.".".

I am very much indebted to the Acting Chairman for not also ruling this amendment out of order. Section 41(1)(b)(iii), which was recently added I believe on Committee Stage in the Seanad at the behest of the Government, states:

"In performing its functions under paragraph (1)(ba) the Board may examine the records and accounts of an approved nursing home or of a nursing home the proprietor of which proposes to enter into arrangements under paragraph (1)(ba).”

I am indebted to Nursing Homes Ireland and various others involved in the provision of nursing home care who have been in contact with Senator Quinn, myself and others, including Eileen Gallagher, director of nursing at Ryevale nursing home, and Mary McCormack, director at Glenaulin nursing home, Lucan Road. The core issue is how the State deals with public nursing homes on the one hand and privately run facilities on the other. The section the Minister of State introduced on Committee Stage seems to be at variance with statements made by the Department of Health and Children in its publication, A Fair Deal: The Nursing Home Care Support Scheme 2008, which stated:

Prices around the country are already known to the HSE and the Department and can be reasonably estimated already ... we are already aware of prices around the country and will not be obliged to reach agreements with any particular nursing home if its prices are unreasonable. We will seek co-operation from the private nursing homes' organisations.

However, what was proposed by the Government and accepted on Committee Stage was that the board may examine records and accounts of approved nursing homes. It is inappropriate for the National Treatment Purchase Fund as a monopoly purchaser to request information that is not in the public domain and especially commercially sensitive information in a competitive environment.

I accept that my amendment is somewhat lengthy. I propose that instead of the access all areas regime of being able to examine records, at the very least there should be a prior stage, namely, a request that the nursing home in question would submit its rationale for its proposed pricing. For example, if the NTPF is not in a position to get agreement with the nursing home on the prices to be charged, is it appropriate that following the Government's Committee Stage amendment, it would then be a straightforward matter of checking the records? Is it not more appropriate and fairer that there should be a request for the nursing home to submit the rationale for its pricing? If there is still no agreement, perhaps one could argue that there might be a case for viewing the records of the nursing home.

A number of issues are at stake here. One is the question of whether similar treatment is on offer to private nursing homes as distinct from public nursing homes. Is it not the case that with public nursing homes, it is a take it or leave it situation vis-à-vis the State? Their prices are out there and the State takes it or leaves it. However, with the privately run nursing homes a different regime seems to be proposed. The question must arise whether that is equitable.

The next matter goes back to an issue Senators Bradford and Fitzgerald, I and others raised earlier when we spoke about the quality of regime to which a person in nursing home care should be entitled. Surely there should be a certain set of standards to which nursing homes should adhere to guarantee the rights and dignity of people in long-term residential care. Provided they reach those standards there would be legitimate scope for the people involved in the provision of private nursing home care to operate commercially and to do a deal with the State. However, surely they should be doing a deal on the same basis as publicly run facilities do. Is there a danger that publicly run facilities might not be cost effective but are paid for none the less whereas private nursing homes are being exposed to a regime of the State insisting on viewing records? The amendment proposes a prior requirement of a request for the rationale to be given by the nursing home for its pricing structure etc.

I second the amendment. Senator Mullen has explained the rationale for the amendment very well. What he has said is quite correct and if the Minister of State does not find it possible to accept it, I would like her to explain why not. I received an e-mail from a representative of Nursing Homes Ireland which stated:

The bill also proposes that each Nursing Home will have to furnish a full set of accounts to the NTPF prior to fee agreement which is incomprehensible and unacceptable. Public nursing homes will not have to comply with this.

I would like the Minister of State to explain whether that is so. One of the objectives for the Minister of State as well as for us is to encourage the development of nursing homes. That has been the objective of the Government for quite some time. This amendment simply proposes that they should explain their rationale. If there is still no agreement after that I can understand that the accounts should be examined. On that basis it does not appear correct that one rule would apply to public nursing homes with another applying to the private nursing homes when we are trying to encourage private nursing homes to be developed. I urge the Minister of State to give serious consideration to this amendment.

On Second Stage I asked what would happen with public nursing homes given that they are on average twice the cost of private nursing homes. This is often because they provide an additional range of services, including physiotherapy and occupational therapy, and have more staff. There are also wage agreements with the HSE that might not necessarily apply to people working in the private sector. Will public nursing homes continue to receive a subsidy? A person who gets into a public nursing home gets a better service and is treated somewhat differently from someone who is deemed just to be appropriate for a private nursing home, which is more cost effective and towards which, therefore, the HSE would be pushing patients.

On Second Stage I asked whether there have been significant negotiations with the HSE and the staff working in public facilities. The Minister of State chose not to answer those questions at that time. I will ask those questions again and this time I focus completely on the cost difference between public nursing homes and private nursing homes. It has nothing to do with the varying costs between different private nursing homes.

When does the Minister of State expect the legislation to be enacted into law? Can I tell people that as of 1 September this is what the agreement will be? When commenting on the differences with public nursing homes and how they will be affected, I would like to know how the Minister of State, who has responsibility for the elderly, views the legislation. We have been told it is resource dependent, so it will have a fixed budget. What will happen when there is insufficient money? Will standards drop or will charges go up? Surely the Minister of State discussed that within the Department before this legislation was introduced.

We had an interesting exchange concerning this matter on Second Stage. It is a relatively significant aspect of the legislation. Private nursing home operators would be very satisfied indeed if they were to receive exactly the same payment as public hospitals or nursing homes for the same bed given the same level of dependency. If that were the case, there would not be an issue in this respect. I have read some of these reports, although I am not too sure whether everyone in the House is familiar with them. A set of accounts published by a public hospital compared with one published by a private operator would be like chalk and cheese owing to the different level of service. During the debate on Second Stage, I mentioned one particular service provider — St. Mary's Hospital in the Phoenix Park — for which I have the height of admiration and appreciation given the level of services it provides and the improvements it has carried out. However, that hospital provides more than beds, a fact that is reflected in its financial statements. Equally, there is usually more than just a bed being provided by the public sector. Private operators are also encouraged to provide more than beds and many of them do so.

We now get down to the difficult aspect of people being asked to provide their accounts. I have strong reservations about private operators being asked to provide accounts. Are they accounts they submit to the tax man or are they ones required under stipulated headings for the National Treatment Purchase Fund? If so, will such accounts suffice? If we are asking the public authorities to supply their accounts — the published, audited accounts we receive from the HSE — the difference is like chalk and cheese.

Up to now the public bed operators were cushioned by certain benefits, including the fact that private operators had to adhere to an inspection system which public nursing homes could avoid. I must say that if the same inspection regime had applied to public nursing homes as applied to private operators, they would have been closed.

That is not true.

It would be true for some, but not all of them. I invite the Senator to visit a few of them with me and he would certainly see that they would not have met the inspection regime private providers had to meet. It was probably wise that we inserted such provisions in legislation at that time, because we would not have been able to close all the beds on inspection and provide the required level of care and service. Perhaps it was done for specific purposes but it has now been brought up to parity so that all of them will be inspected by the same authority, although there was a proposal at one stage to have two different authorities. To answer the crossfire that came across the floor from Senator Twomey——

Through the Chair, please.

I can certainly tell Senator Twomey that I am familiar with a number of these institutions. I have visited them and I assure the Senator that a number would not have met the inspection regime that was in place. Perhaps the Minister of State would like to answer that point, although it may be better not to do so on the floor of the House. I may be incorrect in what I am saying but I have my own view in that regard.

We have done much good work concerning nursing homes. The current provision of public beds shows we have come a long way in the past ten glorious years this country enjoyed. We invested heavily in public beds as well as additional services. Rather than just providing a bed, as happened heretofore, an array of secondary services, including physiotherapy, are being put in place both by private and public operators. That is very welcome. We have started to work on a level playing pitch but this matter is uneven. It is probably one of the last few items that will leave an imbalance. We must do something in this respect, but I do not know if it is good enough to tale a Minister's comment as an indication that there will have to be a fair operation of what is proposed in the Bill regarding the NTPF. We cannot allow the Bill to be enacted as its provisions could currently be read by NTPF officials, seeking negotiations with a private operator and holding up progress on the supply of beds until certain accounting figures are produced. I feel we are somewhat off course on this matter, so we will have to ensure a level playing pitch, as we have done over the years on other matters. This is one thing we need to correct, so I appeal to the Minister of State to do so.

I apologise in advance for any duplication that may arise from my remarks, as I had to take a call and was absent from the Chamber for a while. I apologise to Senator Mullen if I refer to some of the points he may already have raised. There are many inconsistencies concerning eligibility for services, even between different regions. I have been contacted by many people in the nursing sector who are involved in delivering care facilities, and I have worked in the health service myself. I also have links to the Irish Nurses Organisation which has first-hand knowledge on what is happening. In that context, my remarks are factual. Ms Marie Carey, one of the owners of a nursing home in Nenagh, contacted me recently. She is in the Nursing Homes Ireland group and referred to the criteria involved and how services differ between regions. Everyone agrees that the current system of financing long-term care fails systematically. It is inaccessible to some, while others find it fairly easy to access.

The Bill has highlighted the unfair and inequitable system which now prevails. Section 40 is a cause for concern and this has been detailed quite well. There is no provision for an arbitration process in the event that agreement cannot be reached between the Minister's designated body, which is the National Treatment Purchase Fund, and the nursing home. There is a strong feeling that there should be an appeals system where the NTPF fails or refuses to agree to include a nursing home on the approved list. That is a glaring anomaly which should be addressed. Where the Minister's designated body and the person running a nursing home business fail to reach agreement, the matter should be determined by a member of a panel of arbitrators established by the chairman of the Chartered Institute of Arbitrators. That is a reasonable proposal which should be encompassed in the Bill. It will not invalidate or worsen the conditions for anyone involved. In addition, the section, as amended by the Minister of State on Committee Stage, is at variance with statements made by the Department of Health and Children. Senator Mullen raised this issue as prices around the country were already known and the Department would have been aware of them. Would it not be obliged to reach agreement?

The contributor to this part of the debate stated that if the National Treatment Purchase Fund had formed the reasonable view that if the price at which long-term residential care services were provided by a particular nursing home was in excess of that at which such services were provided by other comparable nursing homes, the Bill should provide that the National Treatment Purchase Fund should request the nursing home to provide the board with a written explanation of how the price was calculated. If the National Treatment Purchase Fund is not satisfied with the written explanation received, it should have the power to examine the records and accounts of any such nursing home and report the findings of such an examination to the Minister and the nursing home in question. This would provide for the inspection of records, to be preceded by a request that the nursing home in question submit the rationale for the proposed prices. This is a critical issue for members of Nursing Homes Ireland and addressing it in the legislation would remove the anomalies. I would like to hear the Minister of State's comments on this issue.

I thank Mr. Gary Downey and Ms Maria Carey from Silverstream Healthcare because they went to a lot of bother to make sure issues that had been raised and discussed in the Dáil Chamber were followed up here. The fair deal nursing homes scheme has been on the cards for a long time and is very complex. The needs assessment is subject to such scrutiny that sometimes we can miss the small but obvious things that can have cost implications. We are talking about equity and fairness. I will listen with great interest to the response of the Minister of State.

Senator Prendergast has been speaking about appeals, while Senator Callely eloquently made some pleas. It is clear, however, that the Minister of State has not brought an amendment before the House to deal with the issue which is the source of great concern to Nursing Homes Ireland. There has been a lack of amendments from the Government in response to the points made both in the Dáil and the Seanad which is very disappointing. There has been a very good debate, with some very important points made; therefore, the Government should be more open to accepting the points made by the Opposition. I do not know why it cannot take on board more of the constructive points made on the floor of the Dáil and the Seanad. It is a failing of our parliamentary system that more amendments are not introduced by the Government in response to very clear points made by the Opposition. This is a perfect example, in which there is clear concern in a particular sector that the Bill is discriminatory towards it. The points have been well made, but there is no amendment from the Government. Unless the Minister of State accepts amendment No. 31, I cannot see how the Government will have dealt with the issue. We have spoken to people involved in the sector who have made very relevant points on the issue.

Fine Gael moved an amendment on Committee Stage that there be independent arbitration, but the Minister of State turned it down on the basis that everybody would seek to avail of it. The Government could write amendments in such a way that the arbitration process would be ring fenced in order that everybody would not end up going to arbitration, rather than agreeing a deal. In spite of what everybody has said, the Minister of State has not dealt with the issue. She has not listened to the points made and not brought forward an amendment to deal with them. This amendment is obviously an attempt to bring greater equity to the situation. Let us hear what the Minister of State has to say. People have concerns about the fact that there is no independent arbitration process. They believe there have not been enough negotiations with Nursing Homes Ireland and that the private nursing home sector will be placed in an inequitable position. It will be harder to survive in the industry if some of the problems with the Bill are not addressed.

It is proposed that there be no arbitration between private nursing homes and the National Treatment Purchase Fund on fee structures. Nursing homes have already agreed fees of €985 a week in existing HSE contracts, but it is now stated the fund will effectively inform private nursing homes of their fees. However, public nursing homes will state their fees to the fund, which is a direct reversal of the proposed policy for the private sector. Will the Minister of State explain the difference? The truth is that not one nursing home has been inspected and will not be until 1 July when there will be statutory provision. Perhaps the Minister of State might clarify the position. My understanding is that the inspection regime will begin to operate on 1 July. It is seen as inequitable that each private nursing home will have to furnish a full set of accounts to the National Treatment Purchase Fund prior to making fee agreements, while public nursing homes will not have to comply with this provision. How many inspections have been carried out? What will change from 1 July?

The idea that the private sector should have to furnish accounts and the public sector should not is unfair. I cannot understand this. There are differences in the two sets of figures. It is most unfair on those who are trying to run a business and provide the best possible care in private nursing homes. There is no appeals mechanism and I believe the people who need care will find the system wanting. It is regrettable that the people concerned and their families will have no means by which they will be able to appeal a decision made by the Department or the National Treatment Purchase Fund. It will have a serious effect on the way people access care.

Amendment No. 31 limits the power of the National Treatment Purchase Fund to examine the records and accounts of approved nursing homes. The amendment is legally ambiguous, as the interpretation of what is reasonable could differ in the view of the National Treatment Purchase Fund and the private nursing home. It would also be administratively cumbersome and time consuming. It would require a number of written notices by the fund, the nursing home and the Minister, and the designation of a further individual to examine the accounts of the nursing home and prepare a report. The amendment would also exclude the board from receipt of the final report and is unclear with regard to who would determine the final outcome or agreed price, if any. As such, it would leave a lacuna within the legislation that would serve to undermine the entire scheme. The existing provision states the fund may examine the accounts of private nursing homes wishing to be a part of the scheme. As such, it is enabling rather than prescriptive. It ensures the fund is legislatively supported in its role to seek a fair price for nursing home care which represents value for money for the taxpayer, as well as to guard against price collusion and cartel behaviour.

Senator Mullen raised the issue of quality and standards in nursing homes. The Health Act 2007 provides for the establishment of the Health Information and Quality Authority and the registration and inspection of all nursing homes by the office of the chief inspector of social services which is part of HIQA. This will replace the current system, set out under the Health (Nursing Homes) Act 1990, where the HSE registers and inspects private nursing homes only. All private nursing homes are inspected twice a year under this system which will now include public nursing homes also. Formal standards are a key requirement for inspection and registration. The Minister for Health and Children approved the national quality standards for residential care settings for older people in Ireland in February. There are 32 standards, under seven groupings: rights, protection, health and social needs, quality of life, staffing, the care environment and governance and management. These standards acknowledge the unique and complex needs of the individual at the centre of care and are based on service providers delivering a person-centred and comprehensive service that promotes health, well-being and quality of life. The chief inspector will inspect residential centres against these standards. The inspections will commence on 1 July 2009.

Each public nursing home will have to publish the price of a bed but also how this price was decided. The public and this House will know how the price was arrived at because it will be laid before the House in accordance with section 33(2).

Senator Twomey is concerned at the transparency of the level of funding committed to the scheme each year. A dedicated subhead, B16, has been established within the HSE Vote, Vote 40, for the purpose of the scheme. This amounts to some €909 million this year, including €55 million for the fair deal scheme. The funding available for the scheme will always be ring-fenced and will be clearly identifiable within the Revised Estimates of public expenditure. Funding within the subhead will be the subject of careful monitoring and the Department of Health and Children has already agreed a set of reporting requirements in this regard.

Furthermore, under section 31 of the Health Act 2004, the HSE must prepare and submit a service plan. The Minister has stipulated that the service plan must report on the number of people provided with support under the scheme. The current plan reflects this within its performance activity targets for services for older people. The HSE will also include in its annual reports any information that may be specified by the Minister for Health and Children.

The provision enabling the National Treatment Purchase Fund to view the accounts of private nursing homes is enabling rather than mandatory. In an area of acknowledged demand for services and a sector that will have to respond to an increasing demographic trend, this enabling provision is a vital mechanism to ensure value for money for the taxpayer and to underpin the resource cap for the scheme.

The National Treatment Purchase Fund will publish a code of conduct with regard to its treatment of this material. The code will guarantee that the information is treated as highly confidential and commercially sensitive and will obviously not be disclosed to third parties. The National Treatment Purchase Fund routinely obtains accounts information from private hospitals as part of negotiations with the latter. The prices agreed with the National Treatment Purchase Fund will be subject to periodic, generally speaking annual, renegotiation. The public nursing homes will have to publish their bed prices and also a list of all the cost components, such as the goods and services, that comprise the bed price. A comparable or arguably greater level of transparency is being demanded of the public sector. I do not accept this amendment.

As this is a debate on Report Stage of the Bill, I cannot allow Senator Twomey to contribute unless he has a point of order.

It is not that I am special but I tabled the amendment and this is a procedural matter, as I am sure Senator Twomey knows.

I am disappointed that the Minister of State has not accepted my amendments. I listened carefully to her response. This amendment does not seek to limit the ability of the board to access records. It merely seeks to postpone it by providing that in the first instance there would be the ability for the nursing homes in question to provide a rationale for their pricing. The point at issue was expressed very well by Marie Carey of Ashlawn House Nursing Home in Nenagh, who was quoted by Senator Prendergast. She referred to the common aspiration for legislation that is fair, transparent and that supports the provision of the highest standards of nursing home care. Notwithstanding what the Minister of State said about due assessment of the pricing structures of the public facilities, I am concerned that the refusal to accept my amendments will bring about a greater likelihood of disparity in the care provided in nursing homes at the time when we should look for common high standards. A nursing home may charge above the odds compared to other nursing homes but this may be because it offers extra quality facilities. By not providing for a rationale for the fee structure of nursing homes, the extra services provided, which may justify extra cost, will not be taken into account. I fear we are still fumbling in the greasy till and considering this only through the lens of cost. We are not looking through the lens of a desire to promote a culture of excellence in nursing homes.

We can consider two comparable persons of old age going into long-term nursing care and neither has property that could be availed of under the heading of ancillary State support. The income to which each has access is €800 and the State may take 80% or €640. Perhaps I am considering this too crudely but in one case a nursing home may provide a cheaper service and the State will only back that person's care to the tune of €160 a week. In the other case, where the nursing home charges €1,000 a week, the State is backing the person to the tune of €360. Four fifths of the person's income is taken but, because some nursing homes, with justification, charge more than others the State may be required to pay more in that situation and this may not be recoupable if there is no property to which the State might have access after the death of the person. I am concerned that cost is driving all of this.

It is appropriate that the Minister of State considers this amendment, which allows the window of possibility for a nursing home to give a rationale for costs and to justify them by reference to the extras being provided. This is significant because we have not got to the high quality baseline in terms of the assessment of standards in nursing homes. This is only beginning.

The Minister of State mentioned HIQA in response to a matter I referred to on Committee Stage. It is all very well to talk about the criteria by which nursing homes are judged. I raised the question of the minimum dataset that was proposed in the HIQA document. This will not apply the universally recognised high standard of data sourcing and retention, having regard to the records of each individual in nursing home care. We are a long way from having a proper, thoroughgoing assessment of what is to be provided in nursing homes, having regard to the needs of individuals in long-term residential care. For that reason the State should look closely at facilitating nursing homes in allowing them to give a rationale for the pricing structure. I do not know if it is too late to ask the Minister of State to reconsider this issue before the legislation is passed in the Dáil. What is being proposed is not the limitation of the ability of the National Treatment Purchase Fund to access records but that, prior to accessing such records, an opportunity should be given to the nursing home service provider in question to give a rationale for the pricing structure.

Question put: "That the words proposed to be deleted stand."
The Seanad divided: Tá, 25; Níl, 22.

  • Boyle, Dan.
  • Brady, Martin.
  • Butler, Larry.
  • Callely, Ivor.
  • Carty, John.
  • Cassidy, Donie.
  • Corrigan, Maria.
  • Daly, Mark.
  • de Búrca, Déirdre.
  • Ellis, John.
  • Feeney, Geraldine.
  • Glynn, Camillus.
  • Hanafin, John.
  • Leyden, Terry.
  • MacSharry, Marc.
  • Ó Domhnaill, Brian.
  • Ó Murchú, Labhrás.
  • O’Brien, Francis.
  • O’Donovan, Denis.
  • O’Malley, Fiona.
  • Ormonde, Ann.
  • Phelan, Kieran.
  • Walsh, Jim.
  • White, Mary M.
  • Wilson, Diarmuid.

Níl

  • Bacik, Ivana.
  • Bradford, Paul.
  • Burke, Paddy.
  • Buttimer, Jerry.
  • Cannon, Ciaran.
  • Coffey, Paudie.
  • Coghlan, Paul.
  • Cummins, Maurice.
  • Doherty, Pearse.
  • Fitzgerald, Frances.
  • Hannigan, Dominic.
  • McCarthy, Michael.
  • McFadden, Nicky.
  • Mullen, Rónán.
  • Norris, David.
  • O’Toole, Joe.
  • Phelan, John Paul.
  • Quinn, Feargal.
  • Regan, Eugene.
  • Ross, Shane.
  • Ryan, Brendan.
  • Twomey, Liam.
Tellers: Tá, Senators Déirdre de Búrca and Diarmuid Wilson; Níl, Senators Rónán Mullen and Feargal Quinn.
Question declared carried.
Amendment declared lost.
Government amendment No. 32:
In page 54, to delete lines 1 to 4 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.”.

This amendment clarifies and renders explicit the policy intention underlying section 47, namely, that a specified person may act on behalf of a person of diminished mental capacity in regard to any matter under the legislation apart from matters specified in section 47(9). The matters specified in section 47(9) are to act as a care representative and to request payment of ancillary support unless the specified person is also appointed as a care representative. I thank Senator Norris for highlighting the need to clarify this section and ask all Senators to support this amendment.

I welcome what the Minister of State is seeking to do in regard to this amendment. It is certainly a sign of her openness, which she has shown on at least two other occasions today, to take on board specific, constructive suggestions, albeit in fairly technical matters. We would certainly have liked more of those suggestions to have been taken on board but I do not want to take from my gratitude in general terms.

Does what the Minister of State propose, by way of an amendment, achieve what she intends? From my reading of this amendment, it is certainly clear that she is extending the competence of a specified person to act on behalf of another person to include situations which relate to the giving of the contents of the care assessment to the nursing home provider in question. To be a specified person, the person for whom one is acting must lack mental capacity. That is a matter which requires to be determined in regard to each decision that must be taken.

Does section 21, which provides for the determination of a person's capacity or otherwise in situations relating to the issue of ancillary State support and the property dimension of things, deal with the issue or does it legitimate or provide for the assessment of a person's mental capacity having regard to the separate issue of whether he or she is in a position to know or understand the consequences of giving consent to the giving of his or her care assessment to the nursing home provider? Is that separate determination of a person's capacity to deal with that issue provided for under section 21 or is an amendment also needed in that regard to provide for such a determination?

I welcome this amendment because it sets out in more detail the types of action one can take on behalf of a person not of full mental capacity. I welcome the precise wording of the amendment which states "but not limited to, any application, appeal, review or the giving of consent under section 7“. This issue of reaching out appropriately to people and assessing them comprehensively would have been strengthened had the Minister of State accepted amendment No. 21.

When the Bill goes back to the Dáil, will the Minister of State consider looking at amendment No. 21 again because it deals with capacity issues in a more comprehensive way? That would be helpful. It is important mental capacity is considered when looking at care needs or making an assessment. I welcome this amendment which we will support.

I also welcome the amendment. It is a little ironic that for the first time in the Bill, the words "mental capacity" are used. I am glad the Minister of State has acknowledged that a person's mental capacity must be taken into account. I regret she did not use those words when speaking about the evaluation of a person's needs. When the Bill goes back to the Dáil, she might consider this.

I appreciate the Minister of State tabling this amendment. There was much debate on the mental capacity of the applicant and the role of another person. It is nice to see that, through the tabling of this amendment, the Minister of State has taken on board the issues raised during the debate. I congratulate her and the Department in that regard.

I, too, express my appreciation to the Minister of State. The omission of the words "mental capacity" would have been a great error. What is particularly attractive is that it is not limited to any application appeal, review or the giving of consent. I appreciate the Minister of State listened to the Seanad on this matter. Senator Norris must be given credit for his argument for this provision. It is a reminder what the Seanad can achieve in its debate due to its less contentious nature.

The Parliamentary Counsel is happy that this will achieve the objective. We are not extending but merely clarifying the ability to act in line with existing policy intention. The determination of capacity under section 21 is separate to section 47 and the role of the specified person. The care needs assessment will consider capacity generally. Section 21 is concerned only with the ancillary State support or the loan section of the fair deal.

Amendment agreed to.

Amendment No. 33 in the names of Senators Fitzgerald and McFadden is deemed out of order as it involves a potential charge on the Revenue.

Amendment No. 33 not moved.
Bill, as amended, received for final consideration.
Question put: "That the Bill do now pass."
The Seanad divided: Tá, 28; Níl, 19.

  • Boyle, Dan.
  • Brady, Martin.
  • Butler, Larry.
  • Callely, Ivor.
  • Carty, John.
  • Cassidy, Donie.
  • Corrigan, Maria.
  • Daly, Mark.
  • de Búrca, Déirdre.
  • Ellis, John.
  • Feeney, Geraldine.
  • Glynn, Camillus.
  • Hanafin, John.
  • Leyden, Terry.
  • MacSharry, Marc.
  • Norris, David.
  • Ó Domhnaill, Brian.
  • Ó Murchú, Labhrás.
  • O’Brien, Francis.
  • O’Donovan, Denis.
  • O’Malley, Fiona.
  • O’Toole, Joe.
  • Ormonde, Ann.
  • Phelan, Kieran.
  • Quinn, Feargal.
  • Walsh, Jim.
  • White, Mary M.
  • Wilson, Diarmuid.

Níl

  • Bacik, Ivana.
  • Bradford, Paul.
  • Burke, Paddy.
  • Buttimer, Jerry.
  • Cannon, Ciaran.
  • Coffey, Paudie.
  • Coghlan, Paul.
  • Cummins, Maurice.
  • Doherty, Pearse.
  • Fitzgerald, Frances.
  • Hannigan, Dominic.
  • McCarthy, Michael.
  • McFadden, Nicky.
  • Mullen, Rónán.
  • Phelan, John Paul.
  • Regan, Eugene.
  • Ross, Shane.
  • Ryan, Brendan.
  • Twomey, Liam.
Tellers: Tá, Senators Déirdre de Búrca and Diarmuid Wilson; Níl, Senators Maurice Cummins and Nicky McFadden.
Question declared carried.
Sitting suspended at 4.35 p.m. and resumed at 5 p.m.