I move that the Bill be now read a Second Time.
The Bill, which has been passed by Seanad Éireann, proposes, in the first place, to enable the Minister for Health to make regulations which will lay down desirable requirements for homes where incapacitated persons are maintained for profit and, as a corollary to this, it proposes also to empower health authorities to see that these requirements are fulfilled.
It is important, as a beginning, to form a clear picture of the type of establishment with which the Bill will deal. Its Short Title refers to "Homes for incapacitated persons"; and in its Long Title, such establishments are further delimited as being "homes in which incapacitated persons are maintained for private profit." Mark the words "private profit." It should be noted also that the term "nursing" does not appear anywhere in the Bill, whether in the Short Title, Long Title, or the several sections. The Bill, indeed, is not intended to provide a system of statutory control over hospitals for chronic ailments or over establishments which are fully equipped and staffed to provide high-grade nursing for acutely-ill persons. Institutions of this elaborate type—hospitals, maternity homes, institutions for the mentally ill—are, in fact, already dealt with under special legislation or other arrangements.
The measure is designed to apply to establishments which, because they are somewhat cognate in character are referred to, in the loosest sense of the term, as nursing homes, but of which the essential characteristic is that they have a domestic quality which marks them out from institutions where sufferers from acute illness are received and the formal type of medical and nursing attention is given. In places of the type to which the Bill is intended to apply the element of medical and nursing speciality does not primarily or mainly arise; so that in essential characteristics they do not differ very much from hostels or residences where the old or infirm may be cared for and enjoy the ordinary amenities of life at a charge which is within their limited means. It would be extremely difficult to fit establishments such as these into any rigid category; they exist to meet a wide variety of needs and the service and amenities provided in them may vary accordingly. At this stage it may be helpful to outline what, in general, I believe these needs to be.
First of all, it is necessary to emphasise that the persons in the establishments to which the Bill will apply are not, in the normal sense of the word, ill, certainly not acutely ill. They may be, most often are, suffering from some degree of physical or mental impairment due to old age or infirmity, and to this extent, they require some small amount of rudimentary nursing care—the kind of care that any wife, mother or daughter could perform for a member of her own household, should the need arise. By and large, therefore, homes for incapacitated persons need not differ radically from the ordinary home in this country where, as we know, there are no specialist amenities for dealing with infirmity, where there is, in fact, no need for them, and where the highly proficient skills of medicine and nursing are not required.
For the care of a person maintained in such a home, there is, however, one vital requirement: that he or she be treated with human kindness and attention—the kind of attention, in fact, which would be given in the family home. But it is not within the competence of parliamentary draftsmen to set forth in legalistic formulae what human kindness and attention are. And to prescribe by statute the physical amenities, conveniences and services which must be available in homes for incapacitated persons would be a barren exercise, if those operating such places did not possess those basic human qualities, that are such an enormous factor in making life pleasant for the people who must live in them. In dealing with premises of the kind to which this Bill applies we must remember that their very existence shows that they fulfil a genuine public need. Any legislation, no matter how well-intentioned, which would tend to increase their costs and their tariff, and by doing so, tend also to deny them to some invalids who may need them most, would be from the social point of view, a grave disservice.
Because the end to be aimed at is the happiness and well-being of those who are being cared for in these places, and because the kindness and humanity of those in charge of them will conduce much more to this end than the number of bathrooms provided, or a prescribed menu, or a designated type of floor-covering in the rooms, we must eschew any tendency to set up standards which might be unduly rigid or exacting. Were the contrary line to be taken, it could happen that some homes where, at present, incapacitated persons are kept, and where they are reasonably happy, would fail to meet the statutory requirements and would be driven to close down. So much the greater demand would then be made on those which remained and fees would tend to rise. They might even rise substantially; and the ultimate outcome of our well-intentioned endeavour could well be that not a few people who solely need this kind of accommodation might be deprived of the facility because of their inability to meet the cost. Thus by the pursuit of perfection a situation might be created where many people would find themselves, not better, but worse off than they are at present.
Health authorities, whose function it will be to enforce this Bill, will have adequate powers of inspection to enable them to do so but only where—and this is important—they have ground for believing that inspection is necessary. Officers of health authorities will not, let me emphasise, be empowered to invade any premises, unless they have reasonable grounds for believing inspection to be necessary. Their powers of inspection are provided for by subsection (2) of section 1. By virtue of this subsection in accordance with which the Bill is to be construed with the Health Acts, 1947 to 1960, an authorised officer of a health authority will be entitled to conduct an inspection of any premises which fall within the definition set out in subsection (1) of the same section. Such an inspection may be made at any time; but it is my view—and I shall so provide in any regulations I may make—that, as a general rule, premises will be inspected only when a complaint has been received by the health authority from a responsible person. If a health authority, whether as a result of a complaint or otherwise, has reasonable cause to believe that a person in a home for the incapacitated is not receiving proper care, then under paragraph (h) of subsection (2) of section 2, an officer, and, again, he must be an authorised officer, will have power, in accordance with regulations, to conduct interviews in private with inmates in it and with members of its staff.
Finally, should a health authority, having taken everything into account and weighing one thing against another, conclude that conditions in a particular establishment are below a reasonable standard, it is empowered by section 5 of the Bill to prosecute the person carrying it on or any person concerned with its management; and, in this connection the court, under subsections (5) and (6), may impose penalties which, it will be seen, may be quite severe.
In framing this legislation, I have been particularly anxious to ensure that those responsible for establishments which are operated in a responsible and humane way should not be subjected to unwarranted interference and harassment. Allegations that bad conditions prevail in many of these places and that residents or inmates in them have been subjected to maltreatment, have been made, with great freedom, it is true, but, so far, scarcely ever than in the most general terms. Definite charges related to specific homes have been extremely rare and, upon inquiry, have not been substantiated.
As an example of what I have in mind, I would recount certain things which were said when this Bill was being debated in Seanad Éireann. They outline, I think fairly, the position of those who, because the Bill is not based on the assumption, a priori, that the necessity for registration has been established, are dissatisfied with it.
My first quotation sums up succinctly what I may describe as the general indictment laid by those who were hesitant about accepting the Bill against those who operate the type of home with which it is concerned. Their mouthpiece in this instance was Senator Murphy, for whose ability I may say I have the greatest respect. He said—I quote from Volume 57, Columns 24 and 25: "What she"— that is Senator Miss Davidson—"and many others have been saying"—but not, may I interpolate, Senator Murphy —"is that some of them"—homes for the incapacitated—"are badly run and they are operated by people of bad character."
To suggest that a premises, business or institution is operated by "people of bad character" is a truly formidable charge. It was made on the 13th November last in the Seanad; and one would have expected that, in the course of the several Stages of the Bill in the Seanad, those who made it would support their charges by irrefutable evidence. No attempt was made to do this however; and the Bill entered on its Committee Stage on the 13th December, some four weeks later. In the meantime, no fact whatever had been mentioned that could justify, in any way, the grave charges which, during the debate on the Second Reading of the Bill, had been made by the proponents of registration. Instead, as a substitute for facts, we had a strong element of emotionalism injected into the discussion in Committee by Senator Crowley who spoke in support of an amendment proposed by Senator Miss Davidson. His argument in favour of it was—I quote from Volume 57, Column 124 of the Seanad Debates:
We cannot possibly hope to get at the abuses that we all in our hearts do know to exist if we cannot even from this point on decide where we are to look for them. Without registration, it is clearly impossible for anybody to satisfy himself that these abuses do not exist.
It is well to review that statement in detail for this reason: it sets out succinctly, but comprehensively, the only case which those who want registration have been able to make in justification of their demand. It is an entirely hypothetical one and, it is admitted, is based on no more than an apprehension—an apprehension, I may say, which is in no way supported by such facts as have ever been adduced, that abuses exist. However, whether such abuses are hypothetical or actual, the House must consider what is assumed by the Senator's statement, what it admits and what it proposes.
First of all, Senator Crowley assumes, in one broad sweep, that we all, that is, everybody, every Deputy in Dáil Éireann, not excluding myself, know in our hearts that abuses exist. Well, I, for one, do not know this, either in my heart or in, what is in this context the more appropriate organ to use, my head. I repeat, not for the first time, that I have no positive knowledge that abuses exist, and I shrewdly suspect that this is the case also with those who followed Senator Miss Davidson in the Seanad. At no time has there been put before me substantial and reliable evidence that abuses have occurred, indicating where they have occurred, and who has been responsible for them. Not once has evidence of a kind which would withstand investigation been adduced to me, though I have sought for it eagerly. I have received some, not many, allegations about nursing homes in general. A few of these have been couched in strong, categoric language but when I have pursued them, they have all fizzled out.
I am not, however, to be taken as affirming that there is no possibility of abuses occurring. The possibility that abuses will arise in association with human activities is always with us. But if abuses do occur in nursing homes, then, the lack of trustworthy evidence on that head, suggests that they must be of extreme rarity; they must be, indeed, highly isolated exceptions to the general rule. This, in fact, seems to be admitted by the Senator whom I have quoted. They are even so rare, he has told us, speaking for himself and his colleagues—and I quote—that "we cannot even from this point on decide where to look for them."
Nevertheless the Senator and his friends persist in demanding that the State should go looking for them. They, themselves, cannot find the needle which they believe to be in the haystack, but they want the apparatus of the State and the local authorities to be utilised in that frustrating quest. An inquisition is to be initiated, a witchhunt is to be started, honest people, who provide a desirable service, are to be harried and chivied, in order that some Senators and those for whom they speak may be found to be justified in their suspicions.
In substance this is the last ditch argument against the procedure which is proposed in the Bill. Indeed it would appear to be now their sole maintainable argument in favour of registration. Give us registration, says the Senator whom I have quoted, and I quote him again "because without registration, it is clearly impossible for anybody to satisfy himself that abuses do not exist".
Thus no bones are made in admitting that the main reason why registration is demanded is to prove that the suspicions which some persons harbour are unwarranted; it is wanted by some people in order to dispel the poor view which they take of their fellows. Now the nett issue which arises here is of fundamental significance, for it concerns the rights of the individual citizen within the State. It may be stated as follows: Should Dáil Éireann or perhaps even, may Dáil Éireann in order to satisfy persons coming within the categories to which I have referred, in order to prove conclusively to them, that they are wrong, in order to demonstrate for their personal satisfaction that their beliefs and their doubts are warped, jaundiced, biassed and superficial, compel men and women—but in this particular case principally women—to prove that they are good, honest, upright and humane persons, before they will be permitted to engage in the occupation for which they believe themselves to be, by disposition and training, best fitted.
In short it would appear that the main reason why registration is being asked for is that there may be set up a sort of courtmartial procedure under which those who provide homes for incapacitated persons will be called upon to prove themselves, not only not to be guilty of cruelty, callousness and inhumanity towards their patients, but also not to be people of bad character.
I must again revert in this context to Senator Crowley's statement and emphasise that he was candid enough to say that he did not even know where to look for the abuses which he declared he knew in his heart to exist. Nevertheless he proceeded to say—and again I quote from column 124:—
I want merely to make this observation on that aspect of this problem, that I find it extremely difficult to accept a contention that either the Minister or his Department or his Departmental officials are not very well aware by now that abuses do exist and I do not think it is quite fair to suggest that they do not.
Thus Senator Crowley, who had already admitted that he did not even know where to look for abuses, took me to task, because I said that I shared his dilemma because nobody, for all the racket that had been raised about this matter, has come to me and said: "I know that in such and such premises old people, infirm people, invalids are being inhumanely used." Until this Bill was in Committee in Seanad Éireann—and I am coming to that—not one person ever said so much to me. When I made this point, however, in the Seanad I was all but accused of lying, in the passage which I have just quoted; and when I protested, the Senator went on to say— again as reported in column 124——
