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Dáil Éireann díospóireacht -
Tuesday, 14 Jul 2015

Vol. 887 No. 1

Draft Ombudsman Act 1980 (Section 1A) (No. 2) Order 2015: Motion

I move:

That Dáil Éireann approves the following Order in draft:

Ombudsman Act 1980 (Section 1A) (No. 2) Order 2015,

copies of which have been laid in draft form before Dáil Éireann on 8th July, 2015.

I ask the House to approve the draft Ombudsman Act 1980 (Section 1A) (No. 2) Order 2015. The order has been laid before both Houses of the Oireachtas. Its purpose is to extend the Ombudsman's remit to include private nursing homes the residents of which are in receipt of State funding or support. The order revokes Order No. 270 because, on the advice of the Office of the Attorney General, the Minister for Public Expenditure and Reform is of the view that it is appropriate to seek the approval of each House for the order.

The State, through the nursing homes support scheme, was funding 22,142 nursing home residents as of the end March this year. This includes residents in public, voluntary and private long-term residential care who are receiving financial support. While public nursing homes are already within the Ombudsman's remit, private nursing homes the residents of which receive State funding are not. We want these residents and their families to be afforded greater accountability and assurance. This can be achieved through the work of the Ombudsman who, in a fair and impartial manner, examines complaints. We, therefore, want these residents who are in receipt of public money to be in a position to direct their concerns to the independent authority that is the Office of the Ombudsman.

In accordance with the Ombudsman (Amendment) Act 2012, it is the intention of the Minister for Public Expenditure and Reform to make this draft ministerial order. As prescribed by the Act, the Minister for Public Expenditure and Reform, Deputy Brendan Howlin, has engaged in a consultation process on the order. This included the Ombudsman, the Ombudsman for Children, the Joint Committee on Health and Children, the Joint Committee on Public Service Oversight and Petitions, the Health Service Executive, the Health Information and Quality Authority and Nursing Homes Ireland, a representative organisation for the private and voluntary nursing homes sector. The proposed order has received broad support and welcome from these stakeholders. The Ombudsman has stated the order is comprehensive. Both the Ombudsman and Nursing Homes Ireland requested a delayed commencement date. The Minister has acceded to this request and as seen on the draft order, it is proposed that it will commence on 24 August. This delay between the date of making the order and the date of operation will afford his office sufficient time to communicate with nursing homes and their representative body on the role of the Ombudsman, its operations and procedures. It will also allow individual nursing homes to develop robust internal complaints systems if these are not already in place. The order will not operate retrospectively.

The proposed extension of the Ombudsman's remit will complement the existing work being undertaken by both HIQA and the HSE. While HIQA has the authority to inspect and regulate public, voluntary and private long-stay residential care services, its remit does not allow it to examine individual complaints made to it or issues raised by residents or their representatives directly. Also, the HSE does not have the authority to examine these complaints that arise in private nursing homes. It can do so only if HIQA specifically asks that it undertake an assessment on an individual resident's health status.

By approving the order, we are affording some of our most vulnerable citizens the opportunity to access independent redress. This will ensure these nursing homes residents and their families will be provided with an additional level of support and the opportunity to access an outside authority should complaints or issues not be managed appropriately within the private residential care setting. It offers a very important and positive step in the delivery of services funded by the State through improved oversight and strengthened accountability.

The extension of the Ombudsman's remit follows on from a commitment in the programme for Government to extend the Ombudsman's remit to include non-public bodies that are significantly funded by the State. In addition, it is in keeping with the scope of the Office of the Ombudsman which has always been focused on the delivery of publicly funded services. I commend the order to the House.

I welcome the opportunity to discuss the motion which I support. I wish to examine, in particular, the sad reason for our being here today. We all recall the tragic television programme on Áras Attracta towards the end of last year. Immediately afterwards, the Ombudsman, Mr. Peter Tyndall, was on "Morning Ireland" and radio reminding the public that he could examine complaints about the HSE and all HSE-run centres, including nursing homes.

Áras Attracta was such a centre but people did not seem to know that they had the right to go to the Ombudsman so there is a lack of information, publicity and public awareness about his role.

The Ombudsman made it clear in his opening statement on 10 December that while he can examine complaints about public nursing homes, his office cannot examine the actions of private nursing homes. As a result of that, I wrote to him within a few days asking him to clarify that and to let me know the up-to-date position because he was keen that this should happen. Subsequently, in early January 2015, he wrote back to me about private nursing homes. He said that the Ombudsman (Amendment) Act 2012 was being looked at and that there had been discussions with the Department of Public Expenditure and Reform. He indicated that he would like to see this extension of jurisdiction brought forward as a priority. On various occasions during Question Time over the past couple of months I quizzed the Minister for Public Expenditure and Reform, whose Department is responsible for the Ombudsman, about this. He told me that information was sought and travelled between his Department and the Ombudsman. I am happy that this has come to a conclusion and we are here today with the draft order.

I hope that this will be accompanied by a publicity campaign informing the public and residents in these institutions and that there would be a leaflet in each institution telling visitors and the families of residents about the Ombudsman's role. The Ombudsman already has authority in respect of HSE-run services but many residents never knew that. They all know about HIQA. One cannot go into a nursing home without HIQA being mentioned within a few minutes so it is important that residents know about the Ombudsman's role.

There is a little bit of this in the way the Government tends to work. I am not personalising it in respect of this Government. Consider all the people who were consulted during the consultation period. They included the Ombudsman, the Ombudsman for Children, the Oireachtas Joint Committee on Health and Children, the Oireachtas Joint Committee on Public Service Oversight and Petitions, the HSE, HIQA and Nursing Homes Ireland. There is no mention of patients and their families, the people who are probably most affected. It is probably a reflection of how the public service in Ireland is run. It consults every public service body but not the users. This is here to protect the user.

Again, I stress that I am pleased that this is now happening. I have no problem with the fact that the Office of the Ombudsman needs a couple of months to put the procedures in place to notify the public. Nobody can argue with that. It is an important issue. There must be some mechanism, possibly through the fair deal scheme. The Minister of State quoted a figure of 21,142. When the Department of Health is communicating with these people, I suggest that it sends a leaflet to them or their representatives or families to let them know about this because it would be dreadful if some of the incidents we saw in Áras Attracta were happening in some of these private nursing homes. I am not suggesting they are. I am not saying they are perfect but I have no evidence of any particular problem. I believe that if the role of the Ombudsman is to operate satisfactorily, people need to know that the Ombudsman has this role.

I have confidence in Peter Tyndall and have been in correspondence with him about this issue. It has taken a bit of time to work through. Ultimately, it will probably have implications for resource and staffing requirements relating to the Ombudsman if more complaints start to come through because it will not just involve those on the fair deal scheme. I have a question the Minister of State could clarify. I know that the Ombudsman has a role because much of the income in private nursing homes comes from the fair deal scheme and because it is a substantially funded public body but what about people who pay their own way? Perhaps they are not on the fair deal scheme and had some assets. Will these people be able to go to the Ombudsman even though they are in nursing homes under the fair deal? I hope they will be able to do so.

This is a welcome extension of the Ombudsman's powers. I hope that any complaints he receives will be thoroughly investigated and that it will be a help and comfort to people to know that this procedure is in place.

I welcome the extension by the Minister for Public Expenditure and Reform of the jurisdiction of the Ombudsman to accept complaints on behalf of residents in private nursing homes. Anyone who pays attention to the media reports regarding standard of care in nursing homes across the State is aware that there are widely differing experiences in the care of our vulnerable and elderly citizens. I believe that the experience of most is right and proper but we know that we must remain vigilant or we risk allowing special and wonderful people to be cut off completely from the rest of society. As many as 22,500 people will now be able to avail of this extension to the remit of Peter Tyndall's office if, for whatever reason, they or their loved ones need to.

The current situation where those residing in private nursing homes have to rely on making a complaint to those in charge of the facility is far from ideal. Many families are scared of making such complaints as they fear that they might be seen as troublemakers and lose their loved ones' places. It is also of concern that the Ombudsman and others, including this Deputy, have been calling for this since 2013 but it is only now coming into place. I am not so naive to believe that all residents in private facilities are treated with the standards we expect. To have to wait for two years to have access to an independent complaints process must have been an eternity for some. Indeed, some will have passed away without having had such access. This fact must spur the Minister to now act with urgency.

I appreciate that there were issues involved in bringing private facilities under the Ombudsman's remit. Whether the residents or the units themselves get State funding is relevant but it should not be allowed to bring such a necessary process to a halt. This issue raises its ugly head across the board. When State services are privatised, they are often no longer under the jurisdiction of the Ombudsman. We saw this in the case of Uisce Éireann and its removal from the jurisdiction of Peter Tyndall's office. This was particularly galling given that this body acts as if it is not accountable to anyone. Direct provision must also be brought under the jurisdiction of the Ombudsman. This system, as it is currently operated, is an abuse of basic freedoms and should be abolished.

In May of this year, Sean Moynihan, the CEO of Alone, raised the private nursing home issue with me. At that time, concerns were being raised about HSE facilities in various areas. I stated then that private residential facilities should be open to further scrutiny, including that of the Ombudsman. I wrote to the Minister for Health on this subject and, in turn, contacted the Minister for Public Expenditure and Reform. The RTE "Prime Time" television programme on Áras Attracta, which was broadcast on 9 December 2014, showed hidden camera footage of appalling standards of care for residents in one of the bungalows in that complex. We must operate on the presumption that such disgraceful conduct might well be replicated in units in the private sector.

In discussing this motion, we must not lose sight of the fact that one in three people in nursing home care in this State could be supported to live in the community. The Government must act to ensure that anyone who wants to can live at home with appropriate supports. This is right and proper for those concerned and proves more affordable for the State. We need to be aware of this given that it is predicated that by 2026, 16% of the population will be over 65, myself included. A related matter is a patient safety authority, which I have previously proposed. Such a body would be able to enforce the standards laid out, investigated and reported on by HIQA. It is important that this body would also cover private sector settings. Such an authority would be able to ensure implementation of recommendations arising from HIQA reports and to ensure that quality and standards are kept high throughout the State.

Cuirim an-fháilte roimh leathnú chumhachtaí an Ombudsman do dhaoine atá ina gcónaí i dtithe altranais príobháideacha. Ciallaíonn sé seo go mbeidh muid in ann tuilleadh muiníne a bheith againn as na caighdeáin atá ar fáil sna hionaid seo. Cinntíonn sé gur féidir le daoine agus le teaghlaigh cabhair agus cúnamh a fháil ó fhoras neamhspleách agus iad ag dul i ngleic le seirbhísí nach bhfuil ag feidhmiú mar is ceart.

I also support this motion. It is vital that private nursing homes be included within the remit of the Ombudsman if we are to take elderly care seriously. We cannot have two elderly care policies, one public and the other private. All institutions, organisations and companies which provide services for a vulnerable population need the objective and reliable model of scrutiny which the Ombudsman provides. The service users should always have the right to seek accountability regarding those who oversee and manage their care.

It serves to honour and protect the dignity that elderly people deserve in the later years of their lives.

However, a few concerns remain. The remit is narrow as it only applies to nursing homes which are funded by the State through the nursing homes support scheme. Ideally, I would like to see any place that deals with elderly care fall under the remit of scheme but as demand for the fair deal scheme is increasing over time this motion will have a significant impact. I would have a concern that there could be two patients in the same nursing home, one of whom will have access to the Ombudsman and one who does not have that access. In an ideal world, residential care would not be the focal point of our national ageing policy. We will always need nursing homes and everyone is entitled to the option that meets their needs best but many people can live at home and want to do so.

According to the Government's National Positive Ageing Strategy 2013, the stated national policy was to enable people to age with confidence, security and dignity in their home and communities for as long as possible. However, as we have seen with the primary care model and in our mental health policy, resources do not match the intention. According to Age Action, in 2013, out of a total budget of €1.39 billion, 72% was spent on the nursing home support scheme which supports over 22,000 elderly people, approximately 4% of the population aged 65 and over. Only 14% of this was spent on home help services, with 9% on home care packages. Home help funding has declined by almost 12% since 2009 and while the hours may have increased and the number of patients in receipt of hours may have increased, the quality of the time they receive has decreased. Age Action has noted a trend in the admissions policies of nursing homes which have increased the number of low to medium dependency people being admitted while lowering the number of high dependency residents. High dependency residents end up staying in local community hospitals rather than in nursing homes. I wonder if this model has been adopted to manage more people for less hassle and at a lower cost than admitting older, more dependent people into nursing homes. This may especially be the case for private nursing homes too who are run on a profit margin.

While there is statutory support for nursing home care, there is none for home help and this model does not make sense. I acknowledge that the family structure has changed. We do not all live with three generations under one roof and both parents working is the new norm. However, we do not empower people to be carers nor do we support people when they do care for others. Carers have no standing in today's society. The cut in respite care was one example of how the Government treats some of our most valued people and it has continued that trend ever since. County Donegal has the highest number - over 4% - of elderly people living in the community. This is because the HSE in Donegal, to its credit, has supported home care and home care packages. This is the model which should be rolled out across the country because it removes the dependency on nursing home care rather than increasing dependency. It is also more cost-effective and less expensive.

The process will require an individual making a complaint seeking to resolve the dispute with the nursing home in the first instance. The Ombudsman has announced that there will be information sessions for private nursing home owners. However, an information campaign should also target residents of private nursing homes and their families as this legislation deals with very vulnerable people. How can we ensure that vulnerable persons are empowered to speak up against an authority if they do not know their rights and entitlements? Many people are not aware of their fundamental entitlements. They may not be aware of due process and procedure and this is a real concern. Literacy issues when dealing with bureaucracy and a full understanding of how to work around bureaucratic systems has led to numerous breaches of service provision. How are we to empower people to understand the role of the Ombudsman and their ability to access this resource? Will the Office of the Ombudsman be resourced to cater for a rise in the number of complaints that could be received due to this greater awareness? It is important to note the high rate of cases discontinued prematurely and not being upheld. We must ensure that the resources are available to the office to deal with the cases.

I welcome this Government decision which is a good news story. It will make a fundamental change in the way our elderly people are treated and how mistreatment of the elderly will be dealt with. There is a crisis of care in this country, in particular, with regard to our most vulnerable people such as children, people with disabilities or elderly citizens. A society is measured by how it looks after those who are weakest and most vulnerable and in that regard we have serious issues that need to be dealt with. HIQA is exposing many of the inadequacies of many of our public institutions and, hopefully it will now deal with private institutions as well.

I believe there is a significant and real deficit in our system. While this motion is welcome it will not necessarily be the complete answer. The love and the care that families bestow on their relatives who are being cared for in any of these institutions is fantastic. I applaud their humanity, their concern and their dedication. They do their very best to look after the most vulnerable of our citizens. I also compliment the staff in institutions for their compassion and their personal dedication to their work. Nevertheless, over 700 complaints have been recorded in the private nursing homes sector. Not all of them are equally bad but many of them are appalling, disgraceful and shameful instances. The complaints include physical, financial and verbal abuse as well as sexual abuse. Very vulnerable people are dying in appalling and disgraceful circumstances. As the Minister of State acknowledged in her contribution, the problem is that HIQA cannot investigate those individual complaints. I gave all those complaints to the Garda Síochána and hopefully these are being investigated. However, when I contacted the Medical Council and An Bord Altranais, I was informed that these bodies cannot investigate those complaints because any complaint must include the name of the nurse or doctor involved. This must be changed so that where a complaint is made to the Ombudsman he can insist that the complaint be investigated by the Medical Council or An Bord Altranais, where applicable.

The Minister of State is aware of a case and I acknowledge her interest and that of her staff in it. Those involved in the case have been told that if they want to make a complaint they must provide the name of the nurse who may have abused the patient concerned. The complaint will not nor cannot be investigated until the name is provided. Notwithstanding the changes to the Ombudsman Act, there are significant other circumstances pertaining which still be addressed.

My concerns are serious and they relate to specific circumstances. They are administrative concerns if one can call this an administrative decision. I refer to three very vulnerable adults in the later stages of their lives, needing high level care for a terminal illness or who are not far from passing from this world. They were moved from a ward where they had been loved and cared for, in one case, for more than 12 years. The ward was closed down and they were moved. It was recommended that they should go to a particular private nursing home where the care would cost €210,000 for the three persons per annum. Somewhere in the system the decision was made not to transfer those vulnerable people to that institution of care which was deemed to be the best for them. Instead they were moved to a different ward in the HSE institution and where two of them died. These deaths are being investigated. I understand the Minister of State's Department is aware of their deaths and is aware of the concerns of the families. It is an appalling situation. When the coroner for Dublin heard the case in his court, he wrote to convey the concerns of the families to the hospital concerned. The letter was acknowledged but nothing happened. The letter went into the bin. People die because of administrative decisions. It is a shameful and disgraceful situation. I know the Minister of State is committed to examining this case and I await the outcome.

I regret this debate is so short but I am very happy that the changes for which I have campaigned are happening. I will raise with the Minister of State and in this House the outcome of these investigations which are about to commence. It is time for radical change. Our care system needs to be radically overhauled.

I thank the Deputies who contributed to the debate. Deputy O'Dowd has taken a particular interest in the area.

I know that everyone has an interest in ensuring that, as we age, we are protected.

One of the aims of the Civil Service renewal plan, launched by the Taoiseach and the Minister, Deputy Howlin, last October, is to have a unified, professional, open, accountable and responsive Civil Service. This means that its culture, structure and processes change so that it becomes more agile, flexible and responsive. The order before us seeks to extend such responsiveness.

We all want our public services delivered in a way that is responsive to the needs of our citizens and produces the best overall outcome. By approving this order, we are further moving in this direction. We are affording some of our most vulnerable citizens the opportunity to access the services of the Ombudsman. The function of the Ombudsman is to investigate complaints from members of the public who believe they have been unfairly treated by certain public bodies. Public bodies whose actions may be investigated by the Ombudsman included all Departments, the HSE, including public hospitals and health agencies providing services on behalf of the HSE, and local authorities.

The Government, through the Ombudsman (Amendment) Act 2012, introduced the most substantial extension in both the powers of the Ombudsman and the Ombudsman's remit in more than three decades and thereby significantly enhanced the accountability of public bodies to citizens. The 2012 Act strengthened the Ombudsman's powers in several important areas and also provided the legal framework to strengthen the relationship between the Ombudsman and the Oireachtas.

The additional bodies that were added to the Ombudsman's remit under the Act include third level education institutions in receipt of public funding, education and training boards, the National Roads Authority, the fisheries boards and the Courts Service. This major expansion in access of members of the public to the Ombudsman further strengthened the standing of citizens in their dealing with public bodies, ensuring that fair treatment is always provided, as well as improving the quality of decision-making and increasing accountability.

The introduction of this order will mean that for the first time this accountability and assurance will be afforded to residents of private nursing homes who are in receipt of State funding or subvention. The independent redress delivered by the Ombudsman will mean an additional level of support for these residents and the opportunity to access an outside authority.

This is part of the Government's programme of wide-ranging reform aimed at delivering open, accountable and ethical government underpinned by a transparent, efficient and effective public system to help rebuild trust in Government and in the institutions of the State. This extension of the Ombudsman's remit follows on from our commitment in the programme for Government to extend the Ombudsman's remit to include non-public bodies which are significantly funded by the State. In addition, it is in keeping with the scope of the Ombudsman which has always been focussed on the delivery of publicly funded services.

Deputy Pringle spoke about older people, some not so old, who are resident in private or public nursing homes. They will also have access provided that a significant element of public funding is going into it. It is the significant public funding that is important and the access flows from that, which is very important.

So it is for public and private places.

Yes. In addition I know that there was concern over how people would know about this. I say this with all due deference. It is not as if people in nursing homes are watching Sky News all day long. I have been in enough of them to know that even though they may be very interested, that does not happen. The Ombudsman's office will undertake a publicity campaign on this. If the people in the long-stay nursing homes do not get the information, I am convinced their families, their loved ones and those who support them will.

In addition the Ombudsman will deliver the service from within existing resources. Like all good offices that serve the public, I am sure that come budget time and come Estimates time, if there is need for additional resources, the Ombudsman will make the case for them.

Question put and agreed to.
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