I would like to welcome the Minister. Before we proceed with the debate I wish to inform the House that amendment No. 14 is out of order as it involves a potential charge upon the Revenue.
SECTION 1.
Health (Nursing Homes) Bill, 1989: Committee Stage.
Acting Chairman
I move amendment No. 1:
In page 2, subsection (1), between lines 20 and 21, to insert the following paragraph:
"(c) old age,".
The amendment attempts to achieve something basic and can only improve the Bill. Effectively, what is at issue here is that "old age" be included with physical infirmity, physical injury and mental infirmity. It could be argued that that is already implicit in the Bill and I see no reason it should not be made explicit. We see this improving the legislation.
I would like to support this amendment. In section 1 (1) of the Bill a "dependent person" means a person who requires assistance with the activities of daily living such as dressing, eating and so on by reason of (a) physical infirmity or a physical injury, defect or disease or (b) mental infirmity, and "dependency" shall be construed accordingly. On a literal interpretation, therefore, of section 1 (1) the definition of "dependent person" covers only two categories in my view, those suffering from physical infirmity or those suffering a mental infirmity. We would welcome, therefore, a definition which deals with the type of person who does not suffer from either physical or mental infirmity. We must link this amendment with section 7 which deals with subventions. As we know, these are strictly linked to the definition of a dependent person.
Therefore, I support this amendment proposed by Senator Joe O'Reilly because we believe it should cover a category of elderly people who are not in any way disabled or suffering from physical or mental disability but who might be outside the scope of this Bill. We are trying to copperfasten the situation in proposing this amendment.
I support the amendment submitted by Senators O'Reilly and Kennedy. A "dependent person" as defined in that section is a very rigid, inflexible and insensitive description and does not involve or extend its scope to accommodate as many people as I would like. While I support this amendment in relation to "old age" I do not think we have gone far enough.
There is no human face to this section. We are talking about a dependent person. Is a "dependent person" depending on his own means, on the means or support of his relatives, in an isolated area, on the support of his neighbours, on the support of a community service that is not there or on the services supposed to be provided by the health boards? I come from a rural area and I know people who are not old, people in their middle fifties who live in poor accomodation in isolated areas. Despite numerous efforts to be assisted in making their house more liveable under the health board system, by force of circumstances they have to look for admittance to a geriatric institution if there is a bed available in one.
On Second Stage I emphasised many of the flaws in this Bill. I stressed that, because of the serious cutback in financial resources thousands of beds for our older citizens were withdrawn and this created a crisis for this dependent person. As another Senator has indicated "dependent person" will be the social core of section 7, which is the most important section in this Bill because we will be dealing with people who are not in a position to support themselves. For that reason I fully support this amendment. While it has not gone far enough I want to re-emphasise that there are many old people in the community who need to be recognised as "dependent persons" and who are not getting recognition in this Bill. I would like to hear what the Minister has to say.
I do not see the necessity for inserting "old age" in this section. A "dependent person" is dependent either on his or her family or on the State. Like my colleague Senator John Ryan, I would be concerned that a person of advanced age would be properly looked after. I was interested in his comment that a person of 50 is in the old age bracket now——
Middle fifties.
The Senator is near enough to it.
I am gone beyond it.
There are two of us. I do not think adding paragraph (c) improves this section. Everybody in the old age bracket to whom Senator Ryan referred, who are or are not being looked after by us, will be covered by the legislation and by this section as it stands.
I wish to oppose this amendment, while I agree with the sentiments and the very good intentions which are obviously behind it. Senators have referred to circumstances which should be looked at. My basic objection is that old age is not a disease. It is most regrettable that we sometimes adopt the attitude that simply because somebody is old, he or she is immediately to be regarded as dependent or ill.
Old age is a process and some people who are quite elderly are extremely active and have all their faculties while others, as has been mentioned, in a much younger group may have a physical or mental infirmity and they should qualify under this Bill. We have to get away from the idea that old age in some sense implies being ill. I am sure that is not the intention of the proposers, but it is most unfortunate that this amendment is proposed. If it were phrased in some other way perhaps one could go along with it, but I do not agree with the present wording.
May I reply to Senator Conroy? We are not suggesting all old people are of necessity dependent but many are and do not fall within these parameters. Many old people who would not have mental or physical infirmity as such are dependent.
Having heard the objections raised by Senators Honan and Conroy, I still agree with the amendment as proposed by Fine Gael. Even if, in the first instance, the aspect of old age was covered by the existing provisions, it would be important to emphasise and draw attention to the area of dependency which exists in the context of old age. The amendment does not state that old age is a disease.
It simply says that old age can be the factor which bring about dependency. In that context it is one of the major factors and, should be included in the list of provisions. As it stands, a limited set of factors are covered but it should be extended to cover old age. That flexibility is necessary in order to put emphasis on the problems of infirmity and dependency that can arise as a result of old age.
I have great sympathy with the proposed amendment. I have a basic objection to using the term "old age". We would have paragraph (a) dealing with physical infirmity or physical injury paragraph (b) dealing with mental infirmity and add on "old age". I am not sure if paragraphs (a) and (b) are necessary. We should put a full stop after "bathing" but if we are going to start defining it I would be very sad to see old age included with physical and mental infirmity.
We are not deploring the term "old age". We are supporting the people who live to an old age. I have one constituent who is 87 years of age and who is attempting to have his house repaired by the health board rather than go into an institution. By including that particular category under section 1 of the Bill you will ensure that he will qualify under section 7. It is out of respect for old age that we are including it. I cannot understand how Senator Conroy can object to what we are doing. We are trying to improve the Bill.
I listened with interest to the contributions on this amendment. A considerable amount of time was spent in the Dáil discussing whether the inclusion of "old age" as a criterion of dependency in the Bill would widen its scope. I would remind Senators what the Bill says. It defines a dependent person as a person who requires assistance with the activities of daily living, such as dressing, eating, walking, washing and bathing by reason of physical infirmity, injury, defect, disease or mental infirmity. The suggestion in the amendment is that we add on old age to this list of infirmities.
At this stage I want to appeal to the logic and commonsense of the Senators. An elderly person who needs assistance with the activities of daily living does not need it because of old age as such but because of physical or mental debility that may accompany old age. Recently I had reason to represent the country overseas and on my trip a woman of 101 years from the United Kingdom was travelling unaccompanied on a world tour. Today I met a man of 75 years from County Offaly who was absolutely thrilled and delighted to have obtained a visitor's visa from the US Embassy as he was going on his holidays to the United States. These two old people are an example of what old age can be.
It would be inaccurate to automatically equate old age and dependency. It goes against the trend of bodies and organisations who have been trying to promote a more active image of old age. Senators may be aware of the work of the Age and Opportunity Committee in organising the National Week on Ageing which is now an annual event. Similarly, the Pensioner of the Year awards clearly show how independent elderly people can be and how they can continue to make a very valuable contribution to society. The committees which organise these activities are trying to get the message across that most people remain healthy, energetic and capable of participating actively in society long after they have reached the age of 65 years. They are trying to combat negative images of old age, which is implied in the suggestion that in this Bill we should equate old age with dependency. Senator O'Reilly is correct when he says that old age is implicit in the Bill. If a person becomes dependent during old age they are covered within the scope of the Bill.
I can assure Senators that there is no malign intent on my part in standing firm on this point. If you do not agree with me on the principle involved, I can assure you that my legal advice is that the addition of "old age" will not bring any additional category of persons under the Bill. In other words, no category of elderly person will be excluded from the scope of the Bill by the omission of "old age". Longfellow said: "for age is opportunity no less than youth". In appealing to the House I use the words of Browning which were: "Grow old along with me, the best is yet to be, the last of life for which the first was made". Perhaps in that spirit we could go along together.
Will the Minister be quoting section 7?
Perhaps. I do not propose to accept this amendment and I hope that Senators can accept my bona fides for same.
I made the point it could be argued by some people that old age was implicit in the Bill but I see no reason not to make it explicit. The very romantic, colourful and picturesque description of idyllic old age by the Minister as lived out by some people is charming and is of great interest to the House as a form of diversion but the tragic reality for many old people is different. It is a reality of isolation, loneliness, often great poverty, great physical and emotional isolation etc., and unfortunately that tragic reality is much more common.
The idyllic type of old age painted by the Minister does exist. I know people like that also and it is really heartening when we see it but, unfortunately, the more normal experience of old age is an isolated old person living alone in a rural hamlet, hoping for a letter from an emigrant child and depending on the social services. I appeal to the Minister's good sense — I accept his bona fides on this — and concern for the old and ask him to think again about this. The Bill will be enhanced by this very minor adjustment.
Mr. Farrell
How do we define old age? To a child going to school we are very old but we would not consider ourselves that old. How do we define old age? Recently I played golf with a lady of 86 years playing off a 13 handicap. There are many people of 25 and 35 years who could not play off that handicap. It would be very foolish to put in something we cannot define. "Old age" is a very loose term. To us, someone of 80 years is an old person but for that person someone of 90 years is old. There were two old people talking one day and one said: "I am 74" and the other said: "I am just 82". The first person said: "If I get to 82 I will be pleased" and then the other said: "You will until you get to 82." So, how do you define old age?
Senator O'Reilly is fantasising a little when he says that an old person is somebody living on their own in an isolated cottage waiting for an emigrant's letter. I do not think there are too many people who, if they were able to send home a letter — presumably with money in it — would leave their elderly parents in such conditions. What the Senator said might refer to some people who are living on their own and have no one belonging to them. I was visiting a neighbour and I wandered across the field one summer evening to visit a person I considered to be an old man. His house was in a very dilapidated state. A number of social workers had visited him because he lived on his own. When I called on him he was out in the field and I spent about two hours talking to him. The sun was shining and I said to him, "James, you can have a nice bit of land on the road side instead of here in the bog"— he had to come though a bog — and I said we could get a nice house for him there. He said: "I would expect nothing better from you; the father and mother who reared you would not have reared a son who was not good natured, but, he said, as soon as I get the hay finished I am going to do up my own house". That man was 80 years of age. How could anyone tell him he should be in an institution. He did not consider himself old. To insert "old age" in this legislation would be very foolish and I appeal to the Minister not to do it.
I can only conclude, listening to Senator Farrell, that he is affected by the Yeatsian atmosphere in Sligo and that he has a very vivid imagination.
In fairness, Senator O'Reilly should withdraw this amendment because there are enough of us in this House serving at local level to know the pressure which is exerted on us to get people places in institutions. Only 5 per cent of our elderly are in institutions while 17.5 per cent of the elderly are being catered for at home. Senators Ryan and Kennedy have enough clout to get a place for any old person who wants to go into an institution.
Come down to Tipperary.
We will look at Tipperary too. I do not think the words "old age" are needed in this section and Senators on the other side know that.
Amendment put and declared lost.
I move amendment No. 2:
In page 2, subsection (1), between lines 23 and 24, to insert the following definition:
"`record' shall mean all records excluding clinical and financial records".
Section 6 (2) (g) provides that the Minister may "prescribe requirements as to the records to be kept in nursing homes and for the examination and copying of any such records or of extracts therefrom by officers of health boards." We believe that clinical and medical records and personal financial details, as they are in the doctor patient relationship should be reserved for a very careful eye and not just for the officers of health boards. It is true that draft regulations which were published on 25 May 1990 provide in fair detail for this matter. For example, in regard to Article 24 (d) it states:
Nothing in this article authorises any person other than a designated officer who is a medical practitioner or the patient's general practitioner to inspect any medical records relating to a patient in a nursing home.
Article 18 of the same draft regulations, from subsection (a) to subsection (g), provide fairly detailed regulations regarding the keeping of records and so on. Our main worry is the fact that this is contained in regulations. I believe the exclusion of clinical medical, financial and personal details should be enshrined in the Bill. The acceptance of this amendment will make this section watertight and it should not be totally dependent on the regulations that the Minister purports to make.
I find the argument made by Senator Kennedy valid. If there were, for example, a situation where the patient had a doctor of his or her own but for some purpose another doctor, being a doctor who intervened as an officer of the health board, did get access to the clinical records of that patient, would that access and that knowledge be covered by the doctor/patient relationship even though the patient involved was not directly a patient of that doctor? I am not sure if I am making myself quite clear but I am really concerned about the confidentiality of personal records.
At present nursing homes are not required nor is there any intention to require the homes to make records available for inspection. Under the present regulations, patients' clinical records may only be inspected by a medical practitioner in the service of the Minister for Health or of the health board or by the patient's general practitioner.
In response to Senator Norris's question, we are proposing to put in regulation form that patient's clinical records may be inspected by a medical practitioner who is representing or working on behalf of the Minister for Health or a medical practitioner working on behalf of the health board or the patient's own general medical practitioner. We have designated specifically that only a general practitioner can inspect clinical records. I think that protects and preserves the doctor/patient relationship. One doctor will obviously respect the relationship a colleague has with a patient and the fact that no other person can inspect clinical records preserves the privacy of the doctor/patient relationship and the very detailed and important information relating to the clinical condition and the health of the patient. That is very important.
The draft nursing home regulations which my colleague, the Minister for Health, circulated to Senators last week repeat this provision. Senators may wish to read Article 24 (d) on page 10 of the draft regulations. In view of this, I think we have been very explicit and I would request Senators not to put this amendment as I do not consider it is necessary.
I take it the Minister is trying to go some way to meet my objection. The question of clinical records is more important than financial records although they are both significant. My worry is not completely met by what the Minister has kindly said. It seems to me that a medical practitioner acting on behalf of the Minister or on behalf of the health board would be obliged to relay whatever information came in to his or her possession to the Minister or to the health board and there could be areas of confidentiality in which it is very important that the primary responsibility and obligation of the doctor as a medical practitioner is to the interests of the patient. It seems to me that if a doctor is acting principally on behalf of the health board, he or she might come in contact through clinical records with material that could be interpreted to the disadvantage of the patient either by the Minister or the health board. I am unwilling to give specific examples but I could produce one or two if I were pushed. It is for that reason I am interested in the precise quality of the confidentiality the Minister would also like to see preserved.
This is part of the draft regulations which indicates that it is taken seriously. These are purely draft regulations but this is of such importance that it should be written into the legislation. Traditionally, the relationship between doctor and patient is sacrosanct. Clinical and medical records are not available to everyone. This amendment would enhance the legislation. The fact that it was considered by the Minister's colleague as worthy of introduction into the draft regulations would indicate his acceptance of its importance. The logical thing to do would be to go a stage further and allow it to become part of the legislation. I appeal to the Minister to consider doing that.
In response to Senator Norris, there is a presumption on his part that the medical practitioner representing the Minister for Health or the health board, on examining the clinical records of a particular patient would automatically transfer information from those clinical records either to the Minister or the health board. I do not think this situation would prevail unless the medical practitioner was specifically sent in to inspect the clinical records of a patient for a particular reason, either as a result of a complaint being made to the health board or to the Minister or that some investigation was being carried out at the request of the Minister or of the health board. I do not think the medical practitioner would report back on any clinical records unless he was sent in for a specific reason but we must allow flexibility both to the Minister and the health board to send in a medical practitioner to carry out an inspection at any time and to take random samples of clinical records to assess the medical condition of a patient and to gauge his condition vis-à-vis the care being given to him by the management of the nursing home. Based on the over-view the medical practitioner, as the inspector, would have, I am sure if he were satisfied with what he saw as a result of his random examination he would not have any reason to report out of that clinical record information which he found therein.
In response to Senator O'Reilly, there is no change in the status quo as far as the inspection of medical record is concerned. No problems have been expressed with the arrangements that at present exist pertaining to nursing homes. We do not see any good reason to change them. They are here in draft regulation form to be firmed up and accepted and signed by the Minister as soon as the Bill becomes law. We are putting them before the House so that Senators will know what already exists and what we propose to do. I hope Senators can accept the fact that we have designated a medical practitioner to carry out this inspection and to have information available only to this qualified person protects the privacy and rights of the individual patient.
If what we have in the draft regulations were included in the Bill we would be happy. For example, Article 24 states that:
The registered proprietor and any member of staff of the nursing home shall—
(a) permit designated officers to enter and inspect the nursing home and shall afford the said officers such facilities and information as they require for that purpose.
(d) nothing in this article authorises any person other than a designated officer who is a medical practitioner or the patient's general practitioner to inspect any medical record relating to a patient in a nursing home.
This should be included in the Bill. We would be delighted to accept the appropriate amendment if the Minister comes up with it on Report Stage.
I accept that the Minister in everything he has said has indicated concern for the well-being of patients. One thing that is not addressed in this section but is tangentially considered by the amendment is the question of the patient's consent. I accept that this does not emerge very much but the situation could arise where a patient would wish to withdraw his or her consent to examination of his or her records by a doctor operating on behalf of the Minister for Health or indeed a health board.
I said if I thought about it I could probably drag up from the depths of my imagination an example and, curious enough, I have been able to do so. It comes from a situation I have been familiar with through my activities in counselling agencies over the past ten or 15 years. It may be regarded as a rather controversial one but I ask Members of the House and the Minister not to allow their response to be prejudiced by what may appear to be a controversial element.
I am aware of situations, for example, where couples of the same sex have lived together for a considerable period of years and when one party to the relationship became seriously or terminally ill or was hospitalised as a result of a degenerative disease or a nervous breakdown, the family intervened in order to inhibit visiting by the partner of the dying or seriously ill patient. It could be that the family would have recourse to a health board or to the Minister. Since homosexuality is still a criminal offence I do not think that would place the Minister in a position to respect the desire for confidentiality of that patient. I did not come in with the intention of raising a problematic or controversial issue but I felt it would be useful for me to draw from my own experiences a possible case where the requirment for consent on the part of the patient is clearly indicated.
It would be unfair to put an imposition on a dependent person to give consent to a medical practitioner, particularly one representing the health board or the Minister for Health vis-à-vis an investigation into their clinical records. Old people or people who are dependent need peace and a nice warm hospitable environment to give them good care. It may upset them and cause them distress if they have to give consent for their medical records to be checked. The medical practitioners may come on the direction of the health board or the Minister or they may do a random check or inspection which is very important for the overall efficiency and co-ordination of a high standard of care in nursing homes. It is not like administering an anaesthetic where permission must be obtained from the next-of-kin. It would be an imposition on the patient and create undue stress for that person.
Homosexuality is not a medical condition and would not appear in a clinical record. Consequently, I do not see any difficulty with regard to it, or in it creating any problem for the general practitioner who would be carrying out the investigation.
I would like to correct the Minister. Unfortunately, he is incorrect. The World Health Organisation is in the process of removing homosexuality as a disease, but suppose it happened that somebody had a nervous breakdown. Technically, it is a disease; I believe that is wrong, but it is classified as such. In fact, I could claim to be suffering from a terminal form of it and require a pension, if I was maliciously inclined, but I am not. The World Health Organisation move very slowly; they are in the process of removing it from that category. The Minister may have some information about its precise classification in this country.
Dependent people are not all elderly. There are also elderly gay people, and that could appear on the clinical records. There are also various medical conditions in which this could occur but I am not going to push this line of argument because I believe it would be improper for me to do so at this time. I will conclude by saying that I completely accept what the Minister said about somebody who is ill or dependent. Of course, one can be dependent for different reasons in a nursing home. I would have thought that in addition to the warmth, comfort and cherishing in a nursing home, the right to be visited by a life-long partner is also something that should be strongly indicated to most people in terms of their general well-being. I have indicated a hypothetical situation which, in fact, is also practical and real because I have personally dealt with it. A family, for their own reasons, although separated from any close connection with this individual for many years, may, when he or she is dependent intervene maliciously to prevent a life-long partner having access. This is just a worry; I will not be returning to it but I wish to draw the Minister's attention to it.
Amendment put.
The Committee divided: Tá, 14; Níl, 25.
Tá
- Doyle, Avril.
- Harte, John.
- Howard, Michael.
- Jackman, Mary.
- Kennedy, Patrick.
- McDonald, Charlie.
- McMahon, Larry.
- Manning, Maurice.
- Norris, David.
- O'Reilly, Joe.
- O'Toole, Joe.
- Ross, Shane P.N.
- Ryan, John.
- Upton, Pat.
Níl
- Bennett, Olga.
- Bohan, Eddie.
- Byrne, Hugh
- Byrne, Sean.
- Conroy, Richard.
- Dardis, John.
- Fallon, Sean.
- Farrell, Willie.
- Finneran, Michael.
- Fitzgerald, Tom.
- Foley, Denis.
- Haughey, Seán F.
- Honan, Tras.
- Hussey, Thomas.
- Keogh, Helen.
- Kiely, Rory.
- Lydon, Don.
- McGowan, Paddy.
- McKenna, Tony.
- Mullooly, Brian.
- O'Brien, Francis.
- Ó Cuív, Éamon.
- O'Donovan, Denis A.
- O'Keeffe, Batt.
- Wright, G.V.
Tellers: Tá, Senators Howard and O'Reilly; Níl, Senators Wright and Fitzgerald.
Amendment declared lost.
Section 1 agreed to.
SECTION 2.
I move amendment No. 3:
In page 3, subsection (1), lines 18 to 19, to delete paragraph (a).
According to section 2 a "nursing home" means an institution for the care and maintenance of more than two dependent persons, excluding an institution managed by or on behalf of the Minister of the Government or a health board.
On both sides of the House we welcome the Minister taking on board the ideas envisaged in the Bill to improve the standards and regulations in the control of private nursing homes throughout the country. However, I am taken aback when the same Minister, in dealing with his own nursing homes under his own responsibilities through the health boards, is excluding such institutions from being described as a nursing home as outlined in the Bill. The private nursing homes we are dealing with have had very rigorous standards imposed on them, which are very welcome.
With regard to existing nursing homes under the health boards' responsibility, if the Minister is sincere and concerned about the standards of all nursing homes, instead of having a two-tier nursing home system, he should agree to the exclusion of subsection (a). I cannot understand it. Will the Minister explain the logic of excluding nursing homes under the responsibility of the health board and the Minister from this section while at the same time demanding higher standards from the private sector? I feel strongly about this and would like clarification from the Minister. Will he explain why his own nursing homes should not be regulated by the same standards and regulations outlined in the Bill for private nursing homes?
I also support this amendment. Section 2 defines the scope of the Bill in terms of which nursing homes and institutions will be affected. Section 2 (1) (a) provides for the exclusion of an institution managed by or on behalf of a Minister of the Government or by a health board. Section 6 provides for the making of regulations by the Minister for Health in relation to standards in nursing homes. It seems that the people who are writing these rules and making the regulations want to exclude their own institutions from the standards they wish to impose on private nursing homes. The principle of equality should be enshrined here and we should have the same standards for public and private care. It is fundamental that we are seen to treat elderly people in the same fashion in public or private institutions.
I strongly support this amendment proposed so well by Senator Ryan. All institutions caring for the elderly and dependent persons, whether managed by or on behalf of the Minister or by a health board, should be governed by the same standards. I believe this would also be the wish of the public. The exclusions now of public institutions, especially in times of financial difficulties, would be seen by the public as setting a double standard.
I congratulate Senator Ryan and Senator Kennedy for the excellent way in which they presented the case on this important amendment. As the House knows, the amendment attempts to delete subsection (a) of section 2 (1). It states that an institution managed by or on behalf of a Minister of the Government or a health board, would be outside the terms of the Bill. That would be very serious for the reason identified by Senator Kennedy at the end of his remarks when he spoke about a time of financial stringency posing grave worries in the public mind. Effectively in this amendment we want to ensure that the same standards apply to all State institutions as to private institutions.
We are extremely concerned that people who are in health board institutions would be assured by law of the same level of care as people in private institutions. I am aware from the Official Report of the Dáil that it was argued by the Minister that there were certain guidelines for those institutions. Accepting that, I see it as an important exercise on our part to write it into this Bill that all institutions of this kind are put on the same level. Basically, to use the old adage, what is good for the goose is good for the gander. I believe that this adage applied in this case. We basically must achieve the same level of standards, the same level of services and the same rules and regulations for old people in State geriatric care.
I am not convinced that there are many who do not hold that view; hopefully, most right thinking citizens hold that view. It is important that we are not lax about it, that we are in no sense casual about it, that it becomes part of our legislation and this provides a wonderful opportunity to do that. I appeal to the Minister to accept this important amendment. As we pointed out earlier, if the Minister can propose an alternative form of wording on Report Stage to achieve the same thing we will be happy with that. Uniform standards should apply throughout the country and it is important and timely that this amendment be accepted.
Finally, what makes it critically important is the perception that rests around health cuts and financial stringency. It is important that there be no doubt that we are insisting on the same level of care throughout the country.
Mr. Farrell
I do not agree with the amendment. First, it is the health boards who will be policing this Bill and, therefore one would be asking them to inspect themselves which would be a waste of time and energy and completely wrong. Second, at least some of the health board nursing homes and geriatric units are inspected monthly by health board community care committees. Nursing homes in my health board area, and I know they do in other boards also, because I have spoken with Members of other boards who supervise those visits, are inspected regularly. They ensure that public representatives are the monitors. They check those homes, talk with patients and visit them in the course of their duty as a committee. Those homes are inspected regularly and there is no need for worry there. However, no health board official and certainly no health board member until now, had authority to go into private nursing homes, other than on a visit. They could not make any recommendations or suggestions.
For that reason there is no need to include health board nursing homes in the Bill because we, as elected representatives, monitor them. We are always shouting about elected representatives' powers being taken from them and here we want to give away our power to some inspector to abolish community care committees and then we will not have the responsibility of inspecting nursing homes within our health board areas. However, we will have some official doing it. That would be completely against the system of democracy and the very good monitoring system in health boards carried out by officials and public representatives. The are the best judges of how well nursing homes are run.
I, too, do not support this amendment because this Bill was introduced so that nursing homes in the private sector could be examined by the authorities to bring them up to the required standard. Any nursing home that I know under the care of the health board system maintains proper standards. I would hate to think that we might have to introduce another layer of bureaucracy to inspect ourselves. If that is the case, perhaps we should get out of the nursing home business and have somebody from outside the country examine it. Is that what is meant by the amendment? The Bill was introduced to bring private sector nursing homes up to proper standards.
The whole thrust and purpose of this Bill is to regularise the control of private nursing homes. It was never envisaged that it would include public nursing homes in the control of the health boards and under the control of the Department of Health. I do not think it is appropriate that health boards should register and inspect their own homes and hospitals for the elderly. Health boards, as regards standards in their own institutions, are subject to a statutory system of public accountability. Health boards have visiting committees whose task it is to report on the standards of care in their hospitals and homes.
Staff of health boards are answerable to the health boards for the standard of care they provide. The majority of health board members are public representatives and board meetings are held in public. Frequently, health board, board committee and sub-committee meetings are held in the board's hospitals and geriatric homes which provide an opportunity for board members and committee members to visit these institutions. If the Minister for Health is not satisfied with the type and standard of care being provided in the health board institutions, he has the power to order a local inquiry under sections 83-86 of the Local Government Act, 1941, as amended by section 83 of the Health Act, 1970. Under the sections of the 1941 Act, the Minister for Health can hold an inquiry and obtain detailed information about any aspect of a health board's responsibilities. They also give an inspector representing the Minister for Health power to visit premises and to obtain evidence and other information. Deputies and Senators are also free to ask questions or put down motions in the Oireachtas on any aspect of the health services with which they are unhappy.
The logic is very simple, we do not expect any higher standards of the private sector than have been delivered heretofore in the public sector. We can be proud of the high standard of care, diligent staff and the important inspections that are carried out by medical practitioners on behalf of the Department, the health boards, senior executives of the boards, programme managers and other staff. We have over the years, through the public service, the Department and health boards, given excellent geriatric care in particular around the country.
This Bill is clearly designed to ensure that there is a standardised upgrading enshrined in law and regulated control of private nursing homes. Due to demographic changes private nursing homes are being built and established all over the country. Therefore, it is vitally important that, in the interests of dependent people who need constant care and attention, we have clearly standardised regulated control enshrined in law under the control of the health boards, subject to the overall control of the Minister for Health. It would be totally outside the scope of the Bill to include public nursing homes and geriatric homes which were never designed as such. It was never the intention and that was clearly outlined in the Bill and in the accompanying memorandum. We have no intention of including them at this stage and I hope the House can accept that.
I find the Minister's comments rather defensive. I cannot see why there should not be uniformity in inspection between private nursing homes and public health board homes. If one relates "public" to those homes in the health board jurisdiction what exactly is being inspected? Does it mean that there will be different criteria for inspection of health board nursing homes and private nursing homes? I imagine there should be no fear of inspection by health boards of both if the criteria are the same for both. I am afraid the Minister's reply is rather defensive. We want uniformity between the two. If the Bill is designed to bring private nursing homes up to proper standards, surely there should be uniformity at the end of the day.
I accept what the Minister said about the explosion in the private nursing homes sector over the last couple of years which is due primarily to the fact that the cutbacks have affected the public health geriatric institutions so much and many thousands of beds have been withdrawn from the service, but I cannot understand, if we are so certain and so happy that the standards in our own public institutions are so good, why are we afraid not to allow the same standards to apply as apply to the private nursing home sector?
I was 14 years on a health board and I appreciate the standards that apply in all health board institutions. For the life of me, I cannot understand and I am not happy with the Minister's reply. If everyone is saying that everything is OK in the public sector nursing homes, why must we exclude them? What fear have we? Why are we afraid of inspections? I am not afraid of inspections of the institutions I know. If we are seen to show equality to all people who need geriatric care, I believe that equality should be enshrined in this new Bill, which has come as a result of this explosion.
We have a huge private nursing home system now. Surely, if we are seen to be concerned for all people in such care, we should include all institutions. Someone remarked about the Dáil doing this and doing that, but here in the Seanad three weeks ago we amended a Bill. I do not see why we should not be able to do the same thing here if we are seen to be giving equality to all people in need of geriatric care. As one who has served for 14 years on a health board, I see no reason for that attitude and I am prepared to push this amendment to ensure equality and that we respect our workers in the public institutions. They are doing a wonderful job. By excluding them there is an inverted reflection on the services and on the people who provide them. I will be forcing the amendment.
As I say, I have no need to be defensive. The record stands as regards the level of service given by the people of this country, and by the State in particular through the public sector and the health boards, this outstanding geriatric care that has been given over the decades. I have put the situation as it is. This Bill is designed to regulate privately owned, commercially operated nursing homes. It is not designed to include the publicly owned, Exchequer supported geriatric and nursing homes that are run by the health boards. That was clearly the intention from the very outset in the drafting of the Bill. The Bill was designed to regulate private and commercially operated nursing homes.
There is no real legal right at present for the Minister or his representatives or the health boards and their representatives to have free, open access on behalf of the people to ensure that the proper standard of care is being given in private nursing homes. This Bill is designed to ensure that that exists.
I think it was Senator Ryan who said that the cutbacks have seriously affected geriatric beds and that as a result there has been an explosion in the private nursing home area. As a matter of fact, the opposite is the situation. As a result of much greater efficiency in the health area, and a rationalisation and an upgrading of services, a number of institutions in the acute and the psychiatric areas, that had to be rationalised became vacant. Many of those have now been turned into community nursing homes and community geriatric homes and as a result, with State support through both the Department of Health with Exchequer resources and through national lottery funding, many more geriatric beds have now become available. So, due to the efficiencies on one side, it has created much greater community services on the other. This Bill is not designed as a result of cutbacks. It is designed clearly to regulate the private nursing home sector as distinct from the public nursing home area.
I answered the Minister. I supported him that there was an explosion in the nursing home sector because of the cutbacks. I must not be living in the same country as the Minister. As far as I am concerned, there has been a serious cutback in geriatric beds. I know that from the Mid-Western region anyway and I think it is the general consensus around the country. We have private nursing homes because people cannot get beds in public nursing homes. The need was there. In fact, under section 3 we talk about the illegal homes. That is how they came about — because there was a need there. Do we hope now that under this Bill the illegal homes will be quashed. At the same time, I am saying we have nothing to be ashamed of. In the public sector we have nothing to be ashamed of. We should enshrine it in the Bill that the same services are available in the public sector as are in the private. I am pressing the amendment.
I would just like to clarify the situation before we force this issue. Health board institutions are not afraid of inspections. They are subject to inspections from their members and from the Department of Health on the direction of the Minister. They are regularly inspected in the way I have outlined already. What is at issue here is whether this Bill should include health board institutions. This Bill was never intended to include health board institutions. It would create major anomalies if they were included. Are health boards to register their own homes? Are health boards to pay subventions to people maintaining their own homes? Are health boards to charge themselves registration fees? We could go on and on. It is obvious that the Bill is designed to clearly cover the private nursing home area. Consequently, there is no point in duplicating the situation with the public nursing home area under the control of the health boards. We would be creating anomalies, we would be duplicating effort and wasting resources. Therefore, I am appealing to Senator Ryan not to press this amendment.
Question put: "That the words proposed to be deleted stand."
The Committee divided: Tá, 26; Níl, 17.
Tá
- Bennett, Olga.
- Bohan, Eddie.
- Byrne, Hugh.
- Byrne, Sean.
- Conroy, Richard.
- Dardis, John.
- Fallon, Sean.
- Keogh, Helen.
- Kiely, Dan.
- Lydon, Don.
- McGowan, Paddy.
- McKenna, Tony.
- Mooney, Paschal.
- Farrell, Willie.
- Finneran, Michael.
- Fitzgerald, Tom.
- Foley, Denis.
- Haughey, Seán F.
- Honan, Tras.
- Hussey, Thomas.
- Mullooly, Brain.
- O'Brien, Francis.
- O'Cuív, Éamon.
- O'Donovan, Denis A.
- O'Keeffe, Batt.
- Wright, G. V.
Níl
- Cosgrave, Liam.
- Doyle, Avril.
- Harte, John.
- Howard, Michael.
- Jackman, Mary.
- Kennedy, Patrick.
- McDonald, Charlie.
- McMahon, Larry.
- Manning, Maurice.
- Naughten, Liam.
- Norris, David.
- O'Reilly, Joe.
- O'Toole, Joe.
- Ross, Shane P. N.
- Ryan, John.
- Staunton, Myles.
- Upton, Pat.
Tellers: Ta, Senators Wright and Fitzgerald; Níl, Senators J. Ryan and O'Reilly.
Question declared carried.
Amendment declared lost.
I move amendment No. 4:
In page 4, between lines 10 and 11, to insert the following subsection:
"(3) Where it is proposed to make regulations under this section, a draft of each regulation shall be laid before each of the Houses of the Oireachtas, and the regulations shall not come into effect until a motion approving of the draft has been passed by each such House.".
The wording of that amendment speaks for itself. I am not going to keep the House very long except to say that it seems to me that a draft of each regulation should be laid before each of the Houses of the Oireachtas and the regulations should not come into force until an affirmative motion approving the draft has been passed by each House. To my way of thinking, the net issue here is whether this legislation is to be accountable to the Houses of the Oireachtas or, in fact, to be accountable to senior civil servants in the Department of Health.
I formally second the amendment.
I do not understand why Senator Kennedy is asking for this. I recall — as indeed he should — that when this same type of wording was laid before the House in health regulations in 1985, only four or five Senators voted for it. Maybe I am wrong, but I recall that that is what happened.
I would draw the attention of all Senators to section 14 of the Bill, which deals with the laying of regulations before each House of the Oireachtas. I would like to concur with Senator Honan that when the original health regulations were laid before the Oireachtas in 1985 an annulling motion was tabled and only four Senators supported it at the time. There was an overwhelming majority in favour of accepting the regulations when they were laid before the House.
The approach which we have adopted in section 14 is the standard one used in the Acts of the Oireachtas — in other words, the regulations take effect unless a resolutions annulling them is passed by either House within the next 21 sitting days after they have been lodged in the Oireachtas. This is much more appropriate. First, it gives the Minister and the Department an opportunity to take account of the up-to-date situation in the health regime of the day; second, it makes sure that the most appropriate regulations are drafted and put before the Oireachtas; and, third, it gives the right to Members of the Oireachtas to table a motion and to have a debate on the regulations that are placed before it. So, I think that if we were to enshrine something in legislation that was going to be fixed and stereotyped, it would not give the flexibility that is needed to ensure that the most up-to-date and appropriate regulations are in vogue at any particular time. I hope the Senators can accept the situation as I see no reason to depart from this approach. Therefore, I will not accept this amendment.
Amendment put and declared lost.
Question proposed: "That section 2 stand part of the Bill."
May I make a comment on subsection (2) (e) and (g) of this section? These are the institutions that care for and maintain mentally handicapped and physically handicapped persons. I would like to pay a tribute to these institutions, as I did in my long address on Second Stage of this Bill. I understand they asked to be excluded. As they are non-profit making and are giving an excellent service to these special people and children of this nation, I would not like to let this section pass without making reference to them.
Question put and agreed to.
Section 3 agreed to.
SECTION 4.
Government amendment No. 5:
In page 5, subsection (4) (b), to delete lines 11 to 14 and to substitute the following "specified in subparagraph (ii) of subsection (6) (b) and relating to the person unless the person has been convicted of an offence specified in the said subparagraph after the making of the application for the declaration and the board was not aware of the conviction when it gave the declaration.".
This is a technical amendment proposed by the parliamentary draftsman. The main change is the inclusion of the words "relating to the person". The inclusion of these words ensures that a person can only be refused a declaration that he or she is a fit person to be a registered proprietor of a nursing home if he or she has been convicted of an offence under nursing home legislation or another serious offence — for example, fraud, assault and battery or some offence to do with nursing home regulations, like running a nursing home that is unregistered. It is a technical amendment and I hope that the House can agree to it.
Amendment agreed to.
Government amendment No. 6:
In page 5, subsection (4) (c), line 19, after "or", to insert "may".
Amendment agreed to.
Government amendment No. 7:
In page 5, subsection (6), to delete line 27 and substitute "(b) remove a nursing home from the register, unless—".
An Leas-Chathaoirleach
There is a printing error in relation to amendment No. 7. The word "unless" should appear on a separate line.
Amendment agreed to.
Government amendment No. 8:
In page 7, subsection (13) (a), line 15, after "subsection (4),", to insert "to revoke such a declaration,",
Amendment agreed to.
Question proposed: "That section 4, as amended, stand part of the Bill."
If the named proprietor is a member of a management board and he or she resigns from that board, does the nursing home involved cease to be recognised?
On what subsection is the Senator speaking?
Subsection (12) (a) of section 4, which reads:
Where a registered nursing home commences to be carried out by a person other than the registered proprietor ... the home shall thereupon cease to be registered.
My question was: if the named proprietor was a member of the management board and if he or she resigned from the management board, does that nursing home cease to be recognised?
No, that is still a recognised nursing home.
Question put and agreed to.
SECTION 5.
I move amendment No. 9:
In page 7, subsection (1), line 41, to delete "District Court" and substitute "Minister for Health".
The working party which reported on the Bill recommended this amendment: that decisions of health boards on registration should be appealable to the Minister for Health. The Bill says that such appeals may be directed to the District Court. I believe that the Minister is the proper person for such appeals on health matters. The idea of asking people to submit appeals to an already overloaded District Court is not good. First the District Court is geared purely and simply for legal appeals, whereas the Minister who set out the conditions and regulations is the Minister who is responsible. I believe he is the person who should deal with appeals. It is only adding costs and delays to someone who is genuinely attempting to establish a nursing home worthy of the name and the logic is that such appeals should be directed through the Minister and not through the District Court. Aside from my own belief on it, the working party recommended that as one of its recommendations.
If Senator Ryan was referring to nursing homes under the control of health boards I would agree with him, but in this situation we are talking about nursing homes that are controlled and owned by the private sector. I believe that it is more appropriate that appeals by nursing home proprietors be made to the District Court than to the Minister for Health. The District Court is easily accessible and offers a speedy and inexpensive remedy in the event of a difference of opinion between a health board and a nursing home proprietor. The knowledge that a nursing home proprietor may appeal a health decision to the District Court will impose a discipline on the manner in which the health board reaches its decision. A health board will have to justify its decisions on the objective grounds and, if necessary, demonstrate its objectivity in court.
I feel strongly that the advantages of this system will outweigh any reservations which nursing home owners may feel about appeals being heard in the District Court. If the people are in the private sector and the health board rule against them I think it is only fair that in that situation the nursing home proprietor would have recourse to the lower courts which would be the local District Court, an inexpensive court, a court that is local to them and gives them open and easy access where the matter can be decided in law and a final and conclusive decision arrived at. I think this is a much fairer way than to have the Minister involved.
If it was the situation pertaining to the geriatric nursing homes that are normally run by the health boards, it would be more relevant to have that direct line of appeal to the Minister, but in this case as it involves both the public sector and the private sector and it is in the interests of the public and public scrutiny and equity and fairness, I think it is only right that an appeal should be to court.
I support Senator Ryan. Ultimately it is the Minister for Health who bears the responsibility for the health services and I believe that if decisions are to be made on health, in other words, decisions as to what are acceptable standards and so on and what aspects of nursing homes are acceptable, then I believe it is the Minister for Health who should make those decisions, arbitrate on them and ultimately carry the responsibility.
The other point is that the District Courts are grossly overcrowded at this stage. It is quite difficult for many people to get in there and I do not believe they should be clogged up with this type of business.
The Minister is correct on this occasion and indeed I would point out the situation where the Minister could be wrongly accused of supporting somebody. Indeed, we have had similar discussions on other Bills in this House. I think the opportunity of going to the District Court should be welcomed. Having the Minister excluded is in the best interests of the Bill and in the best interests of nursing home proprietors.
Amendment, by leave, withdrawn.
Section 5 agreed to.
SECTION 6
I move amendment No. 10:
In page 8, subsection (2), line 48, to delete "may" and substitute "shall".
Section 6 is perhaps one of the most important sections in this Bill. The power of the Minister to make regulations is, in fact, a very comprehensive and wide power. For instance, in section 6 (2) the Minister "may" make regulations. The word "may" applies to such important areas as the maintenance, care, welfare and well being of dependent persons. The case we are making is that it should be mandatory on the Minister.
Again he "may" make regulations which prescribe the requirements as to the numbers, qualifications and availability of members of the staffs of nursing homes and so on. This is most important and I think therefore that it should be mandatory on the Minister to make these regulations in regard to all aspects of the standard of care, maintenance and so on in nursing homes. For instance under section 6 (2) (e) the Minister may prescribe requirements as to the food provided for dependent persons and so on. That is the case we are making. We must look at section 6 because as I said already it empowers the Minister to make these regulations about the ultimate standards of care in nursing homes.
We know of course, that section 6 is broadly similar to a section in the 1964 Act with some minor changes. The first set of regulations were made in 1964 and new regulations were made in 1985, but still the Minister persists in 1990 with a set of draft regulations which are very vague and it is almost impossible to pin down these regulations.
I am informed by people in the health boards that they will find it very difficult to enforce the regulations because the Minister, I take it, with the advice of his officials, is using such terms as "suitable and sufficient care", "adequate space", "sufficient number of competent staff", "suitable and sufficient accommodation", "adequate day space". I believe the Minister should incorporate the guidelines that have been issued by his own Department in the regulations. Unless he does this every health board and every director of community care responsible for the enforcement of these regulations will find it impossible to do their job.
The Eastern Health Board, the major health board in this country, for example, in a recent report stated that the regulations are too general in their requirements and that they are too open to subjective interpretation. My own health board said exactly the same. Dr. Paddy McGowan recently stated that he will find it impossible to implement vague regulations.
Therefore, I am suggesting that the Minister should give a commitment to this House now — it was not done in the other House — that he will enshrine the guidelines issued by his own Department as part of the regulations. I would like to get an assurance from him in this regard. For instance, it has been suggested in the guidelines, and I want the guidelines to be read in conjunction with the regulations, that single bedrooms should have at least 100 square feet with a minimum ceiling height of 8 feet, that shared bedrooms should have at least 80 square feet per bed. There is nothing at all in the draft regulations about this. The specifics are out, the generalities are in. I would like some assurance from the Minister today — I am talking for every health board and every director of community care in this country — that he will be more specific and definite here.
I think the nursing homes will have to be given time to respond to these regulations and to put their house in order but we know from the surveys that have been done around the country that certain nursing homes are not meeting even the very minimum standards. I would like some assurance from the Minister because we will not get the opportunity to discuss regulations here in spite of what the Minister said about this negative resolution that is available to both Houses of the Oireachtas. I have never seen regulations being discussed in either House. It certainly has not happened in recent times here. I am now suggesting very strongly to the Minister that we, on this side of the House, would be very happy if he could give us an assurance that some of the excellent guidelines that have been developed with the health boards and the Department of Health will be enshrined in these new draft regulations.
The case has been comprehensively put for this amendment by Senator Kennedy. All I would say at this stage is that the essential objective of the amendment is to tighten up what could be a loose situation, to make something definite. This whole area of nursing home care and regulations and the lifestyle of people in nursing homes is of such sensitivity and of such importance that there should be nothing lax, there should be no ifs or buts or doubts. Everything should be presented in the strongest and most positive way. It is a worthy amendment and it is one the Minister should accept.
I would like to support the two previous speakers. When I spoke on section 2 on the exclusion of the health board institutions, the Minister made it very clear that the purpose of this Bill was to ensure that the private nursing sector would be properly organised, properly run and properly supervised. Section 6 contains such words as "adequate" and "sufficient" and a repetition of the word "may" is insufficient, weak and lax and the Minister will not achieve his ambition to ensure that the private nursing sector is being run on very high standards and according to high regulations. As the two previous speakers said, the regulations cannot be discussed. I have not heard them discussed but I would ask the Minister to give some commitment in view of the fact that the objective of this Bill is to achieve high standards in the private nursing home area.
As stated by Senator Kennedy, community care managers are going to have very serious problems because of the looseness and laxity of this section. It will have to be firm, rigid and efficient. The only way you will get a high-class service is by having a very rigid section 6. It is too weak at present and on account of its importance, I appeal to the Minister to give a commitment that this section will be given an entitlement of a very high standard and commitment.
I too, support my colleagues, Senator Ryan, Senator O'Reilly and Senator Kennedy in their concern about the word "may". If there is not an obligation to ensure those standards the whole thing falls asunder on that point even though the whole purpose of the Bill is to ensure that there are proper standards. Given that this is the objective of the Bill I cannot see any problem in setting those standards. The Minister will still have the capacity to change them as things develop and as people's notion of what is acceptable and so on changes with the passage of time. I very strongly ask the Minister to consider accepting this amendment and also to give some commitment on his attitude to the implementation of the guidelines.
In supporting the amendment I want to say it makes for a very practical aspect of the Bill if those people who will be implementing it have specific standards written into the Bill to ensure that there is no vagueness, no woolliness or ambiguity at the end of the day. That is the tenor of the Bill so far and it is very important that the obligatory dimension would be there to protect the practitioners when they are trying to implement the regulations, that they have that yardstick to go by and that it is obligatory.
The Minister for Health accepted an amendment to section 6 (1) in the Dáil to provide that the Minister shall make regulations for the purpose of ensuring proper standards in nursing homes, including adequate and suitable accommodation, food and care for dependent persons. Subsection (2) goes on to illustrate some of the matters what may be dealt with in the regulations. This listing is not intended to be exhaustive and it might be necessary to make regulations in relation to matters that are not specifically mentioned here. As can be seen from the draft regulations circulated earlier, they are comprehensive and all the items listed in section 6 are covered. We have been as specific as we can in the draft regulations.
No one who understands the problem of ensuring high standards in nursing homes argues in favour of including in regulations specific room sizes, ceiling heights or staffing ratios. If you do this you could end up with a situation where a health board would have to close a nursing home which provided very high standards of care but which did not have the right room size, the right ceiling height or the proper staffing ratio or other matters in relation to this. Flexibility and time are of the essence in creating the ideal home where the care is absolutely perfect and we must ensure we strike the right balance, protect the interests of the patient at all times and ensure that the flexibility is there so that a direction can be given to the nursing home proprietors to adhere to what are the normal acceptable standards of space and conditions.
Section 6 (1) starts with the words "The Minister shall" and on the fifth line it states "make such regulations as he thinks appropriate in relation to nursing homes". Subsection (2) states: "Without prejudice to the generality of subsection (1), regulations under this section `may' ...". It then goes on to outline in various minor sections what exactly is being covered — but it ensures that the Minister "shall" make the regulations. He has the right to do so in a specific way, in a general way, reacting to any particular situation, making such regulations as are appropriate at any particular time, at any notice, at any request from a health board or indeed from the Oireachtas.
If we change the word "may" to "shall" it means the Minister can only make regualtions which are specified here. He cannot cover an eventuality which we do not anticipate now. We are giving that flexibility and that broad opportunity to the Minister to ensure that the regulations can be updated and are as appropriate as are necessary to maintain a high standard at any time now and in the future. I would respectively suggest to the Senator to withdraw this amendment and ensure that that flexibility is left with the Minister.
The Minister has ignored something now, as he did on Second Stage. I made a very strong case on Second Stage that the regulations as currently drawn up were so vague that health boards would find it impossible to enforce them because of words like "suitable" and "adequate" and generally vague words. He has not referred to it at all. I have asked for some assurance that these regulations would include the guidelines and I cannot see why the Minister cannot do that in regulations. Guidelines are one thing; what the enforcement officers of health boards want are definite, specific regulations they can enforce. We have got no indication from the Minister on any Stage so far that he intends to make it possible to enforce these regulations in the courts. There is no point in having a situation where you can take certain proprietors of nursing homes to court if you know you cannot enforce them because they are so vague.
It would never be my intention to ignore the Members of this House, or indeed Senator Kennedy. I would never like to be vague because I do not like vagueness or ambiguity. I want to assure the House that we have drawn up regulations in the past. They have been accepted by this House, they have been accepted by the public at large. They have been accepted by the owners and administrators of nursing homes and, above all, they have been accepted by the courts and implemented by them. It is an innovation in regard to legislation that not alone would we debate legislation but we would also circulate a copy of the regulations with the legislation to give an idea to the Members of the House what we propose. These regulations are being drawn up in consultation with officers of the health boards to ensure that they are suitable, that they can be implemented and that they can be sustained. I have no doubt the regulations will be accepted, will be relevant and that the courts will interpret them in a way that they can be enforced.
I am most disappointed with the Minister's reply. I do not think we are talking about the same thing at all. I hope his officials are more in tune with the thinking of the health boards because I know the Department of Health over the past 12 months or so have been writing to health boards asking for their views on this and there have been very comprehensive discussions with the senior officials of health boards with regard to the implementation of the regulations. I have spelled it out here. How can you go to court and suggest that a proprietor, for instance, has not provided adequate space, a sufficient number of staff, suitable and sufficient accommodation? How do you define that? I am suggesting that the health boards are now operating the guidelines, but since the guidelines have no statutory basis they will find it impossible to implement the regulations. Therefore, I have to press this amendment, if only to put it on the record that I am most disappointed with the reply the Minister has just given.
Question put: "That the words proposed to be deleted stand."
The Committee divided: Tá, 26; Níl, 19.
Tá
- Bennett, Olga.
- Bohan, Eddie.
- Byrne, Hugh.
- Byrne, Sean.
- Conroy, Richard.
- Dardis, John.
- Fallon, Sean.
- Farrell, Willie.
- Finneran, Michael.
- Fitzgerald, Tom.
- Foley, Denis.
- Haughey, Seán F.
- Honan, Tras.
- Hussey, Thomas.
- Keogh, Helen.
- Kiely, Dan.
- Lydon, Don.
- McGowan, Paddy.
- McKenna, Tony.
- Mooney, Paschal.
- Mullooly, Brian.
- O'Brien, Francis.
- Ó Cuív, Éamon.
- O'Donovan, Denis A.
- O'Keeffe, Batt.
- Wright, G.V.
Níl
- Cosgrave, Liam.
- Costello, Joe.
- Doyle, Avril.
- Harte, John.
- Howard, Michael.
- Jackman, Mary.
- Kennedy, Patrick.
- McDonald, Charlie.
- McMahon, Larry.
- Manning, Maurice.
- Naughten, Liam.
- Neville, Daniel.
- Norris, David.
- O'Reilly, Joe.
- O'Toole, Joe.
- Ross, Shane P.N.
- Ryan, John.
- Staunton, Myles.
- Upton, Pat.
Tellers: Ta, Senator Wright and Fitzgerald; Níl, Senators Howard and O'Reilly.
Question declared carried.
Amendment declared lost.
It has been decided by agreement that we will proceed with this Bill until 7.30 p.m.
I move amendment No. 11:
In page 8, subsection (2), between lines 48 and 49, to insert the following paragraph:
"(a) prescribe requirements as to the recreational and therapeutic facilities in nursing homes.".
This amendment is of the utmost importance because there is nothing written in here in relation to "recreational and therapeutic facilities". It is often the case that in a nursing home the only recreational facility is a sitting room with a television set, and wall to wall television all day with people sitting around. We should establish clearly that it would be part of the life of a nursing home that there be adequate recreation, that there be a range of recreational activities and that there be various therapeutic facilities. It is effectively self-explanatory what we mean here. I do not see any merit in labouring the point other than to say that it is an important omission at the moment. There should be no difficulty in the Minister accepting this as a worthy amendment.
I formally second the amendment.
Section 6 (2) (a) provides that the nursing home regulations may prescribe requirements as to the maintenance, care, welfare and well being of dependent persons while being maintained in nursing homes. If Senators turn to Article 5 of the draft nursing home regulations circulated earlier, they will see how we deal with the issue of recreational facilities in nursing homes. Article 5 (d) and (e) obliges nursing home owners to provide facilities for the occupation and recreation of the patients and opportunities to participate in activities appropriate to his or her interests and capacities. Article 5 (h) obliges nursing homes to provide information concerning current affairs, local matters, voluntary groups, community resources and events. What is expected of nursing homes in providing recreational opportunities for residents will be thrashed out further in the code of practice which is being finalised at present. Article 5 also obliges nursing homes to provide a high standard of nursing and medical care for patients.
Article 29 (b) obliges nursing homes to provide physiotherapy, chiropody, occupational therapy or other health services as required by a patient. I am satisfied that the draft regulations deal with recreational and therapeutic facilities required in nursing homes and that there is no need for this amendment. I would be grateful if it could be withdrawn.
Amendment put and declared lost.
I move amendment No. 12:
In page 9, subsection (2) (j), line 42, after "officers", to insert "and for such inspections as outlined in this section, the Minister shall introduce a code of practice to be applied uniformly throughout the country.".
I propose this amendment in the names of Senator O'Reilly and myself. We call upon the Minister to introduce a code of practice to be applied uniformly throughout the country. As Senators will be aware, such a code of practice is operated very effectively in the United Kingdom. I would be glad to hear the Minister indicate that the introduction of a code of practice is being considered by his Department at the moment.
I support this amendment. I appeal to the Minister to accept it because I believe it is of vital importance that code of practice be applied uniformly throughout the country. It would be a pity if this legislation was to be found defective because of different standards applying in different health board areas. It is only right and proper that we should have one code of practice throughout the country because, as the Minister knows, the interpretation from one health board to another could vary. I would like to see some uniform practice applied throughout the country.
This legislation is long overdue. I welcome it. It would be a pity if it was found defective because it was interpreted in different ways in different health board areas. The previous situation where, on the one hand, some welfare homes were approved by the health board and others were not, some were getting subsidies and others were not, was crazy. It would be a pity if this legislation failed because of lack of uniformity from one health board to another.
In supporting my colleagues I want to make this point to the Minister. At the moment there are many fairly big groups involved in the nursing home business. I am aware from friends of mine in the world of banking that a number of syndicates or major business people are establishing nursing homes in different health board areas. If a person owns a number of nursing homes — one in the Western Health Board area, one in the South-Western Health Board area and one in the North-Eastern Health Board area, for example, even from that person's point of view, he would find it unmanageable to comply with different standards in each health board area. That makes my case for a national code of practice because it is very important to establish uniformity. For all of these reasons I recommend the amendment.
I have listened with interest to what the three Senators had to say. A code of practice will be an important part of the new arrangements governing the relationship between nursing homes, their clients and the health boards. A code has been drafted for the first time and I have with me the first draft of the new code of practice. We hope to firm it up later on. It consists of two parts. Part I sets out the best practice to which all homes should aspire and Part II deals with the uniform application of the legislation in all health boards. Senator Naughten referred to that. A group of experts are currently examining the code and advising my Department on the final draft.
This amendment would limit the code to dealing with inspections only. I believe the code of practice should deal with much wider issues which arise in caring for the elderly and implementing this legislation. Consequently, in the interests of having the best possible, broadest and most flexible code of practice agreed and available, I would like the Senator to withdraw the amendment as I cannot accept it.
Amendment put and declared lost.
Government amendment No. 13:
In page 10, subsection (3), lines 13 and 14, to delete "person carrying on the home and any person in charge, or taking part in the management," and substitute "registered proprietor and the person in charge".
This is purely a technical amendment proposed by the parliamentary draftsman. I would be grateful if the House would accept it.
Amendment agreed to.
Section 6, as amended, agreed to.
SECTION 7.
Amendment No. 14 is out of order as it involves a potential charge upon the Revenue.
Amendment No. 14 not moved.
Question proposed: "That section 7 stand part of the Bill."
As one of the signatories to the amendment that was ruled out of order, I would like to speak on this section, which is the social core of the Bill. We are talking here about payments by health boards towards the cost of maintenance of dependent persons in nursing homes. In fact, "shall" could be described as a potential charge on the public revenue and "may" does not. That beats me because the option is "shall not" so "may" is in between, I will not argue with the Chair over semantics.
We are talking here about supporting people in these private nursing homes and supporting applications which have been investigated by investigating officers employed by the health board and the conclusive evidence being submitted to the health board that these cases are genuinely in need of of subvention by the health board. At that stage the section takes off into the wind even though the health board genuinely believe that that person should be subvented. The Bill states that the health board "may" support the person in the nursing home.
This is a very flawed section. It is weak and it is reneging on our responsibilities to the less well off who are in these nursing homes, who may only have a pension to meet the cost of maintenance in that health board institution and are depending on the community care section of the health board to help them pay their weekly maintenance Bills in the nursing homes.
Whoever decided this — the Government or the Minister — is turning his back on a promise made in the last three years to emphasise the need to improve community care services. This is reneging on that responsibility, reneging on that commitment. Now we have the position that there could be discrimination, there could be favouritism. Someone will say: "I consider that person in the home is genuinely in need of support but because of the Bill, I have the option to decide not to support him".
"May" is a very weak word when you are talking about supporting people on low income. That is why the signatories to this amendment felt it was a genuine amendment. The fact is that this is the social core of the Bill and there is a weakness in it. We had support from the Government side last week on that. There was a general feeling that "may" was too weak that was why we put down the amendment and asked that it be adopted so that "shall" would be the operative word rather than "may" when it comes to looking after people who need looking after, I believe we are reneging on our responsibilities if we are not prepared to amend this section. As I said, section 7 is the heart of the Bill and without it the Bill will mean nothing to the less well off.
I do not know about others on this side of the House, but I had, and still have, worries about this section. "May" does not mean the same as "shall". I will stick to my guns I ask the Minister to amend this section although I do not know how he will do it, I noted that many amendments were accepted in the Dáil and I would have expected the same to happen here — we still might get them.
Everyone in this nation knows my views of health boards, Health boards are left with the word "may" instead of "shall". It certainly leaves me with deep worry. As a Senator on the other side of the House said when recent legislation was going through, and he was caught with his party, "if I was on the other side I know what I would do". This evening, if I was on the other side, I know what I would do. Senator Ryan knows that I will stick by this side of the House but I will say what I have to say. We should not leave health boards with "may" instead of a stronger word. If there is a stronger word than "shall" the Minister better use it.
Like Senator Ryan I am worried about this section. An interesting thing happened here which I better put it on the record. We discussed the Finance Bill with the Minister for Finance a short time ago and he made the case that "shall" had to be left in one of his Bills because "may" was not strong enough. Here we are with a Health Bill and we are leaving "may" in, we are not getting "shall" because "may" is strong enough. I would like the Minister for Health to have a talk with the Minister for Finance and let the two of them find out what "may" and "shall" stand for.
Will we have "may" or "shall"?
I do not know which we have.
I am conscious of the time factor but I share the views expressed by Senators Ryan and Honan because you could well have one particular——
On a point of order, is it not a fact that you have already ruled out the amendment?
I have but we are speaking on the section. I also appreciate that Members might, in their enthusiasm, not be conscious of that fact.
You could very well have a situation where one health board would interpret their freedom to comply with this particular section by paying a subsidy to the nursing home, whereas an adjacent health board may well take the view that they were not compelled to do so. I would be much happier to see a commitment there that the health board would pay a contribution for people who qualified.
I have just two further very brief questions for the Minister. In the context of the situation which existed prior to this where certain people in approved homes got a subsidy, will those be the criteria laid down for the additional people who will now qualify because the homes they are in become registered? Could the Minister inform the House what additional cost is involved? What kind of money are we talking about in terms of subsidies to those private homes at this time?
I understand it would be both incorrect, technically, and discourteous to make any statement that appeared to challenge your ruling, so I will not do that.
I know the Senator would not do that.
I would not at all. I would like simply to comment on it in terms of language because it would be useful to me to understand in these ways how charges are actually created on the Exchequer because I do not understand it. There may be a technical explanation the Minister would be able to give. I would like, then, to comment on the implications of the correctness of your ruling for what the Minister said in the past couple of days in the House because there is clearly a discrepancy between the two. It is important to understand that.
I must point out to you that you cannot reflect on my ruling.
I am not.
I am trying to convey to you that, regardless of what the Minister gives you by way of reply, that still does not allow you to reflect in any way upon the ruling in relation to the amendment I have made and communicated earlier today.
Can I address the general principle of the application of charges?
On the section.
I am not expert in this matter. I did a little bit of research on it and I placed my views on the record of the House the last day with regard to the previously existing position under legislation before the passing of this section. Since then I have had this confirmed to me in writing by the proprietor of a nursing home in the Southern Health Board district. I would like to quote what it says:
With regard to subvention, the current position is as follows: section 54 of the Health Act, 1970 entitles people in approved nursing homes, i.e., homes approved for the purpose of section 54 of the Health Act, 1970 to claim subvention as of right. When the new Bill becomes law, section 54 of the Health Act, 1970 will be repealed, thus removing a basic statutory right. Unless the wording in section 7 of the Bill is changed, the "may" to "shall" argument, then that right will have been removed and nothing put in its place. It is not acceptable.
This is what has been said to me so the position seems to be quite clear. The position being clear with regard to the 1970 Act, I am now quite confused about this measure and this section because it seems to me there is a charge already, for example, in existence as of this moment so what we are talking about is the creation of a charge in some curious way. I do not know. I believe in creation ex nihilo but there actually is something there already that is a charge. I am simply commenting, a Chathaoirligh, not on your ruling — I would not presume so to do — but on the fact that the operation of this section as it stands now is to remove something. The acceptance of the disputed amendment would simply be to retain the status quo so it is matter of conjecture to me how the creation of the charge arises although I have absolutely no doubt you are correct, as always. I rather have to say that.
It confirms my own belief.
I thought it might. In view of the fact that a distinguished former Leader of this House has been described in glowing terms — it was indicated he was a disciple of Jesus Christ, right across the front page of the Evening Press— it comes as no surprise to me to learn you believe you are also infallible. It is a modest enough claim to make, God knows.
If the Senator cares to accept it, there will be no dispute on this either.
Only ex cathedra, I am an Anglo Catholic ex cathedra but in your individual person I might have my doubts.
We are on section 7.
(Interruptions.)
It is so pleasant to get this light-hearted sniping from somebody who is supporting the position I have taken on this Bill, I may say taken up on this section, who is supporting the people who have tabled this amendment. I draw to the Minister's attention the rather unusual feature that it has support from every section of the House, including the Government party. I believe, despite the correctness of the Cathaoirleach's ruling, that indicates the Minister really should think again. In other words, on this issue he is facing a united House and the professional opinion of those engaged in this area. If this does not give him cause to think and consider the possibility of meeting the request of this House, then I think there is something very strange happening here.
I would like also to make one final point, that is, that the Minister indicated in his speech the last day and indicated also to me far from his position on this matter reducing the Government expenditure and being a cheap skate, pennypinching exercise in health cuts, it would lead to an increase. In other words, his proposals on this leads to the possibility of an increase, according to himself. I find that difficult to believe, particularly because the Cathaoirleach has indicated that the result of our amendment would be to increase spending. It is impossible to have it both ways. I trust the Cathaoirleach absolutely. I wonder what cheese paring and health cutbacks are behind this and perhaps the Minister would be able to explain that.
Will the Minister please take back to the Government the clear feeling of the House on all sides to allow such an amendment, or perhaps he will introduce it because apparently it is not possible for this House to introduce it. This may be just a technicality. The capacity and the power will reside with the Minister to engage in this exercise which will be a generous act; not terribly generous I have to say because by accepting this he would only be continuing the status quo but it would be an indication at least, if nothing else, of parliamentary generosity.
I am very disappointed that we are not able to debate this matter. It will allow health boards to continue to give priority to spending in other areas rather than to the care of the elderly. This is happening already in health boards who have not honoured their subventive payments. It is interesting that all of us are very strong on this because it is the core of the Bill. It is a good Bill but it will be theoretical rather than practical if this provision is left. It is disappointing for me.
The House decided that this debate on Committee Stage would conclude at 7.30 p.m. We have the Industrial Relations Bill as agreed on the Order of Business this morning and we have the Minister for Labour present in the House. I will allow the Minister to reply.
I would not like to draw the wrath of the Chair on me by discussing an amendment that is ruled out of order but there is some misinterpretation as to the reason for this.
We are on the section.
Yes, I am responding to the debate on this point. To impose a charge on the Exchequer is the prerogative of the Government of the day. The Oireachtas in itself cannot take on itself through legislation or through amendments to legislation this right to impose a charge on the Exchequer. Consequently, this would impose a charge on the Exchequer and, indeed as Senator Norris has rightly said, either "may" or "shall" would impose a charge on the Exchequer in any event. We have taken account of that in this year's budget. That is the reason the Cathaoirleach has ruled this out of order.
The Minister for Health in his response to the Second Stage debate clearly outlined the situation pertaining to section 7. We want to ensure that the most flexible position can be adopted to maximise the resources, the services and the regulations that are needed to take full care of dependent people who need to be placed in nursing homes.
Section 54 of the Health Act, 1953, obliges health boards to provide care and maintenance for people who cannot provide this for themselves. This obligation remains under this Bill. The Bill also repeals section 54 of the Health Act, 1970, which obliges health boards to pay subventions to people who opted for care in private hopspitals and/or nursing homes regardless of the person's means or dependency.
The open-ended nature of this section combined with the restrictions on the number of homes approved for subvention and the low level of subvention have been criticised by many groups who have examined this problem. However, we are protecting the rights of those in receipt of a subvention under the present arrangements. Heretofore some approved nursing homes created the opportunity for people in those nursing homes to be subvented by the State. There are many unapproved nursing homes where no subvention is possible even though many people in these unapproved nursing homes need subvention. This section takes full care of that and gives the flexibility to the health boards to adjudicate on the means which people in nursing homes have and thereby give them a new subvention.
We took full care of that in this year's budget where we allocated £5 million for geriatric care, and part of that £5 million must go to taking account of the Act which will be law as a result of the passing of this Bill. We still have protected those who got a subvention heretofore. They will not lose that subvention irrespective of their means but, as a result of this Bill being passed, they will retain the right to apply for a higher subvention. If their means allows them to get that higher subvention then they will qualify for it.
This goes back to the point made by Senator Ryan where he more or less said we were reneging on our commitment to provide community geriatric care. We have not reneged; we have provided £5 million extra this year. That takes account of this Bill which will become law on enactment. We also recognise that once the Bill is passed it will impose a charge on the Exchequer in the future. We will take that into account in the preparation of the Book of Estimates next year and subsequent years. The resources necessary to take full care of and give proper care and maintenance in a proper environment to dependent people will be available in subsequent budgets. Consequently, I hope we can pass this section. I thank the Senators for their contributins.
Briefly, I want to express my dissatisfaction. I am not prepared to accept what the Minister has said. As of now recognised nursing homes in my area are registered and are not being paid. When section 7 is passed with the weakness of the word "may" fewer homes will be paid. In fairness to the officials and the patients, the officials who go out in the field and investigate genuine cases come back into the office and say "Mr. X should be approved for subvention", afterwards the deciding officer says "with regret we are opting out". It is a cop out. We are not meeting our responsibilities.
I regret to have to disagree with the Minister, irrespective of the £5 million but the Bill with section 7 in it will not meet the requirements of the less well off and will give health boards the opportunity to opt out or discriminate against many people. I am not satisfied. I am registering my protest on section 7.
What Senator Ryan said is serious but is not quite the case. I am sure Senator Ryan, would settle for a commitment from the Minister, Deputy Treacy, to the Seanad on Report Stage not alone would elderly people get the subvention that is their right in an institution or nursing home but there will not be further delays. We are aware that nursing homes that did not get subventions will get them from now on. We understand section 7 quite well. I would be satisfied if the Minister for Health, but particularly the Minister here present, could tell us (1) that there will not be further delays in paying subventions in health board areas and (2) that elderly people who have the right to subvention, whether it be in an institution in a health board area or in a private nursing home, will get the subvention. That would satisfy me and it might satisfy my colleague, Senator John Ryan.
There is worry about this section. If the Minister gives his word, that is sufficient for me because I know him well. Perhaps the Minister, Deputy Treacy, would make a commitment on Report Stage that, without changing "may" or "shall" he will ensure that people who are entitled to subvention after this legislation goes through will get it and get it without delay. We all know there is delay in paying subventions at the moment and that there are families suffering hardship. However, that would be dealt with on Report Stage.
If the Minister were to give a final reply that would be fine but there are a number of people offering on this section.
It was agreed to take other business.
That is so. We had agreed to do that at 7.30 p.m. but I acceded to what I presumed was an agreement of the House to allow the debate to continue for a few moments. The Minister dealing with the next item is in the House.
It might be useful if the debate on this section were to continue tomorrow, it would give the Minister an opportunity to reflect. There is a very serious and unusual situation.
It is agreed with the Whips that we will deal with this tomorrow.
Progress reported; Committee to sit again.