Before we resume on section 7, I welcome Councillor Declan Flanagan to the Visitors Gallery.
SECTION 7.
Nursing Homes Support Scheme Bill 2008: Committee Stage (Resumed).
Question again proposed: "That section 7 stand part of the Bill."
I spoke on section 7 and I await the Minister of State's response to the points made on amendment No. 11 to establish the general legal advice received.
The amendment, which has been disallowed, proposes to delete subsection (11), which states that a care needs assessment shall not be construed as conferring an entitlement to services. The inclusion of the subsection is considered important by the Attorney General because it supports section 5, which stipulates that the scheme is resource capped. The resource cap is a key feature of the scheme and any amendment would have serious financial consequences. For that reason, I am not in a position to accept amendment No. 16.
I am surprised it is financial.
We are discussing the section.
The response is the same.
Is the section agreed?
May I respond to the Minister?
On the section.
Will the Minister of State spell out the implications? Earlier I called on the Minister of State to do so, but it also arises in this section because we are discussing care assessment. Will the Minister inform the House of the Government's understanding of resource capping and the meaning of it in the context of the Bill?
I refer to resource capping and, bearing in mind this would be 15% of people's property and inheritance, it is extraordinary the sentence is in place.
The view of the Government is the scheme is resource capped. This year the cap is €55 million. It simply means the scheme is resource capped.
The legislation will be in place for a good deal longer than this year.
That is correct but it will be capped every year and this year the cap is €55 million.
Will the Minister provide some information on the €55 million and how it will meet the need for the scheme and the need for places? What is the Department's estimate of the total required or of the numbers currently requiring care who would be eligible for the scheme?
I cannot provide the numbers requiring care. Under subhead B16, the total cap is €909 million, which will be reviewed every year. This year the cap is €55 million.
Will the Minister of State repeat that?
Some €909 million is the total allocated under subhead B16. This year the cap is €55 million.
To what does the €909 million refer?
Of the €909 million, €55 million is for the fair deal.
Senator Fitzgerald asked about the breakdown of the number of people in receipt of care. Earlier I asked about the number of private and public beds. I do not know whether the Minister of State has such information to hand. If the mix is not available, will the Minister of State indicate the number of people in receipt of long-stay care who would qualify for this money?
At present, it is estimated there are 23,000 people in long-term residential care in Ireland and of these, 7.5% are under 65 years of age. This indicates 21,275 people in long-term residential care are over 65 years of age, which equates to 4.6% of that population. The total number of beds in nursing homes, including long-stay and respite beds, is 29,000, of which 10,000 are public and 19,000 are private. The total number of long-stay beds in nursing homes is 25,985, including 8,235 public beds and 17,750 private beds. The total number of occupants in nursing homes is 23,000, of which 7,500 are public, an occupancy rate of 91%, and 15,500 are private, an occupancy rate of 86%. That is the number of beds at present.
Did the Minister of State say there were 23,000 occupants and 29,000 long-stay beds?
That is correct, and there are 29,000 long-stay and respite beds.
To what do the figures of approximately 25,000, 8,000 and 17,000 refer?
There are 25,985 long-stay beds and, of these, 8,235 are public and 17,750 are private.
It was the case that there were three levels of subvention as well as enhanced subvention for private beds. Does this remain the position? My understanding is that it does not, but I seek clarity on the matter.
There is only one level of subvention now.
Is it currently in place?
Yes, and it will continue.
I simply wanted to say, "I told you so". It is perfectly obvious this has to do with the Department of Finance and it is because it is not rights-based legislation.
Question put.
The Seanad divided: Tá, 23; Níl, 18.
Tá
- Brady, Martin.
- Butler, Larry.
- Callely, Ivor.
- Carty, John.
- Cassidy, Donie.
- Corrigan, Maria.
- Daly, Mark.
- Feeney, Geraldine.
- Hanafin, John.
- Keaveney, Cecilia.
- Leyden, Terry.
- MacSharry, Marc.
- Ó Domhnaill, Brian.
- Ó Murchú, Labhrás.
- O’Brien, Francis.
- O’Donovan, Denis.
- O’Malley, Fiona.
- O’Sullivan, Ned.
- Ormonde, Ann.
- Phelan, Kieran.
- Walsh, Jim.
- White, Mary M.
- Wilson, Diarmuid.
Níl
- Bradford, Paul.
- Burke, Paddy.
- Buttimer, Jerry.
- Cannon, Ciaran.
- Coffey, Paudie.
- Coghlan, Paul.
- Cummins, Maurice.
- Donohoe, Paschal.
- Fitzgerald, Frances.
- Healy Eames, Fidelma.
- McFadden, Nicky.
- Mullen, Rónán.
- Norris, David.
- O’Reilly, Joe.
- O’Toole, Joe.
- Regan, Eugene.
- Ross, Shane.
- Ryan, Brendan.
Tellers: Tá, Senators Labhrás Ó Murchú and Diarmuid Wilson; Níl, Senators Maurice Cummins and Nicky McFadden.
Question declared carried.
Sections 8 and 9 agreed to.
SECTION 10.
Amendments Nos. 18, 19 and 27 to 29, inclusive, are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 18:
In page 16, subsection (1), line 3, to delete "a suitable person" and substitute "an independent third party".
The Bill gives very little scope for an independent review by a third party. The phrase "suitable person" occurs in the Bill and I propose that it be substituted with the words "an independent third party". The Bill should allow an independent third party to be involved in the assessment of means. The Bill allows the HSE to seek an assessment of means, which would be conducted by a suitable person of the HSE's choice. In establishing the market value of any item, the HSE is not bound by a valuation accompanying an application for State support but is empowered to select a suitable person to conduct the valuation.
A number of issues arise in relation to the assessment of financial means. It is not clear what is meant by "suitable person". Will the Minister of State clarify what is meant by this very wide term? Will it be further defined in regulation or will it be left as broad as it is? Will the means test be carried out by the HSE, State officials or an independent third party?
If there is a discrepancy between the market value of an asset established by the HSE and that submitted with an application for support, the HSE is not bound by the valuation submitted with the application. Such a disparity could have significant implications for the applicant or the State. I will make further points as the debate on this section proceeds. The key issue is the need for the involvement of an independent third party in the assessment of means. What is meant by "suitable person" and will it be defined further?
Amendments Nos. 28 and 29 refer to section 30. It is essential that a person carrying out a review of care needs or of financial assessments is independent. The phrase used in the Bill is "suitable person". The Minister of State may agree that in order to be suitable a person should be independent. It is not a great leap of the imagination, or of a draftsperson's pen, to include the phrase about independence. I support Senator Fitzgerald and I urge the acceptance of my amendments to Part 7, section 30, which deal with reviews and appeals. It is important that any person carrying out a review is independent.
The Minister of State is probably aware that the families of people in long-stay care can come under immense pressure with regard to the level of subvention being paid. Section 30(7) states that a person other than the Executive may not request a review of a determination relating to a financial assessment unless 12 months have elapsed since the date of the initial financial assessment. People's circumstances can change rapidly. For example, a person who is currently dependent on a rental income might find his or her income changing by the quarter. Indeed, in certain instances there could be default in payment of the rent. How quickly can an issue of that nature be addressed in the context of the assessment?
I am aware interested bodies have made submissions. I am happy to work with bodies such as Nursing Homes Ireland and other groups. Has the Minister consulted them or is there a user group to feed information to the Minister on the user aspects of the legislation? The user groups could be a soundboard on the legislation.
I support the amendments. It is important to have people who are independent of the Executive. That is the bottom line. They are people who would not have a vested interest. Given that old people are vulnerable and, perhaps, have assets, it is crucial there is somebody involved who is independent.
Amendment No. 18 proposes that financial assessments should be undertaken by an independent third party. However, as the HSE would still be making and financing the arrangements, it is questionable how this independence could be achieved or guaranteed. This amendment is also impractical in terms of the use of public resources. It would require a dedicated budget to be provided to finance an independent third party organisation. It would also result in the existing officers who administer the subvention scheme and the public long-stay charges system, and who have received some preliminary training for the new scheme, having to be redeployed by the HSE. In short, we would be failing to utilise efficiently existing administrative resources while simultaneously funding additional administrative posts, albeit through a third party organisation.
It would result in another layer of bureaucracy, with applications being submitted to the HSE but processed by a third party. This is likely to prove inefficient and to raise issues around governance and data protection-confidentiality for applicants to the scheme. To whom, for example, will the individual complain if an application is lost or mishandled? In addition, the HSE is subject to the scrutiny of the Ombudsman in terms of the requirement to follow faithfully all procedures set down in statute. With an independent third party, this layer of protection would be closed off to applicants. For these reasons, I cannot accept the amendment.
Similarly, amendments Nos. 28 and 29 propose that reviews should be undertaken by an independent third party, while amendment No. 27 further proposes this third party should be appointed by HIQA. As already stated, an independent third party would have to be financed. It would require a dedicated budget and would effectively duplicate the administrative work of the HSE relating to assessments. Given that reviews are undertaken on the same basis as assessments, such an inefficient use of resources cannot be justified. The governance and data protection issues which I outlined earlier also apply to reviews undertaken by an independent third party. This is because a body undertaking reviews will naturally need access to the person's data and records. For these reasons, I cannot accept amendments Nos. 27, 28 and 29.
Amendment No. 19 proposes to remove the right of the HSE to appoint a suitable person to value assets and stipulates that any valuation must be undertaken by an independent third party. It should be noted that individuals will submit their valuations with their application for State support. As such, this provision is merely a necessary safeguard within the legislation. It provides for the right of the HSE to undertake valuations at its expense, which is imperative from the perspective of accountability and the HSE's audit functions. Furthermore, this amendment would be problematic as the HSE will meet the costs of any valuation requested under section 10. As such, it is questionable whether the valuer authorised and funded by the HSE could be deemed to be an independent third party. It is, therefore, not proposed to accept the amendment.
"Suitable" person as defined by the HSE, which is in section 3, is the person who has the necessary qualifications, training, experience or combination thereof to perform a function. For evaluations it will be a qualified auctioneer.
Senator Callely raised the review of a financial assessment. The review of a financial assessment can be undertaken earlier than 12 months if the HSE is satisfied that there has been a material change of circumstances. That is dealt with in the next section. With regard to consultation, the Minister for Health and Children and-or her officials met all the interest groups that requested meetings with her about this Bill. These included the social partners, Senior Citizens Parliament, the IFA, the ICMSA, Age Action Ireland, the National Federation of Pensioners Associations and other groups.
My concern is that it is a closed system. There appears to be no provision in the Bill for independent review. We propose that a financial review, for example, should be conducted by an independent third party so a fair and reliable estimate could be established in which both the applicant and the HSE could have faith. An important way of doing that is to insert independence into the scheme. That is the reason we propose these amendments. The HSE is a big organisation. It would be in the person's interest to be able to access and use independent advice on the variety of issues that arise under this legislation, whether it is to estimate the market value of an item or to review it. There should be an opportunity to do that under the legislation. If it is not built in as part of the process, there should be some discretionary opportunity to access independent review to a greater extent than is available.
There is also the concept of the HSE having so much control over elderly people. These people will contribute 15% of their estate but nothing is outlined regarding what they will get for that money. Let us not forget that the HSE is responsible for many debacles under Professor Drumm. One matter that comes to mind is the €50 million he was short in his budget a couple of weeks ago. PPARS and Leas Cross are others. Now we intend to hand over 15% of people's legacies and estates to the HSE. That organisation will make the final decision, with no independent person to oversee or review the situation. The people concerned are vulnerable in the first instance due to being sick, infirm or incapacitated. This course is really dangerous and will lead to legal situations in the long run.
Perhaps the Minister will outline how the system will work from the time the person goes into care with regard to the level of contribution and the physical means whereby that contribution is made. We are aware of the current system and the subvention application form. We know how the assessment takes place in the nursing home section and about the appeals process, which is separate. I have every faith in the current system, which appears to work well.
I certainly have concerns about the HSE, and my position on a single organisation running services on a Twenty-six County basis will not change. I am not satisfied with the provision of services, for example, by private operators. We should not lose sight of this. We are talking not only of HSE services but also private operators who provide a fantastic array of services in certain instances where the statutory authorities have failed to provide them. I say that in light of what was just said.
I would like to know how the contribution will work, whether for a private or public bed, and, in the case of a need for a review of the structure to be put in place, how quickly this will be made. Most of us in this Chamber are aware of circumstances in which a family will make an approach, arising from a situation in which the level of payment coming from the HSE is insufficient to meet the need. This is usually in circumstances in which a person is in a private bed. Only because of the goodwill that exists with the private operators will the family be accommodated for many weeks and months. In certain instances an operator will be at a loss at the end if the assessment is not made favourably to meet the need of the individual at the level of charge being made. This happens time in time out and we wait for weeks for cases to go through the appeal process. I ask the Minister to outline how the scheme will work in comparison to the existing system.
I welcome the Minister of State's engaging honesty in stating that her principal reason for not accepting the first amendment is that it would require a separate budget. If it creates a charge on the Exchequer that would have been a reason for ruling the amendment out of order. This further highlights the completely chaotic state of rulings on admissibility of amendments. It is daft. Some important amendments have been ruled out because they created a charge on the Exchequer but in this case the Minister of State informed us a separate budget was required. Some jesuitical fluting around might happen to justify this but it is perfectly obvious there is a lack of coherence and we must examine this point.
I was very interested that the Minister of State suggested an independent review would be inefficient. Perhaps so, but this comes from a Government which seems to believe in the free market, privatisation and the franchising out of matters. What is wrong with franchising out a bit of independent scrutiny?
The principle with regard to the need for a separate budget clearly means a charge on the Exchequer.
I understand the Senator's concerns regarding the independence of the various assessments. However, the scheme contains a number of important safeguards. Care needs assessments will be undertaken by health care professionals who will all be subject to their own scope of practice and their professions' respective codes of ethics. A common summary assessment record has been developed and rolled out nationally for use within the care needs assessment process. This ensures a standardised basis for determining whether a person requires care services. The legislation is highly prescriptive with regard to the basis for undertaking financial assessments. The schedule even sets out a list of rules governing financial assessments.
This highly prescriptive approach within the legislation removes the scope for any discretion or inconsistency in the application of the financial assessment and therefore undermines the justification for an independent assessment body. Reviews must be carried out on the same basis as the original assessments and therefore the same prescriptive, consistent and unambiguous approach will apply. The legislation explicitly stipulates that a person must receive copies of the reports relating to all assessments or reviews. This is not provided for in the current subvention scheme and represents increased transparency.
A person can appeal to the Ombudsman if the HSE does not follow the procedure set down in the legislation for assessments and reviews. There is an appeal mechanism. Appeals officers must be independent in the performance of their functions. This is stated in section 32(1)(a). A panel of appeals officers will be established which must be approved by the Minister. The legislation also requires the appeals officer to consider every matter afresh, as if they were deciding the matter for the first time.
Senator Callely asked a very large question regarding how the scheme will work. I have a great deal of information, including——
Send it to him.
——examples to show how the scheme will work. It is available on the website but I shall organise to have it forwarded to the Senator.
Anybody under the present subvention scheme who wishes to remain in that scheme can do so. People who are in a public facility at present do not have to sign up to the fair deal.
Is Senator Fitzgerald pressing the amendment?
I have a final comment. I do not believe the principle of independence has been understood fully. There is a slight narrowing of scope in this Bill that is unattractive. In her speech in the Dáil, the Minister, Deputy Harney, argued that the Bill was centred not on entitlement, but on eligibility. I have made the point that it is not a rights-based Bill but there are certain rights which should be retained and the right to an independent scrutiny of one's position is one such. The person brought in to review should be independent because there can be a possible and very considerable conflict of interest between parties. The fact that the reviewer is employed by one of the concerned parties, namely, the HSE, calls into question the independence of that person.
It was suggested to me that the desire for independence is analogous to the request by the family in the Roscommon incest case who want an independent review with no input from the HSE into the inquiry. There appears to be a strong case for real independence. The HSE is to employ the person who will conduct the review in which it is one of the interested parties. That is my understanding although I might be misinterpreting it.
It is an important legal point. When I made certain political charges against a former Cathaoirleach of the Seanad I was dragged before a type of star chamber. I agreed to attend only on the basis that I could cross-examine, introduce evidence and witnesses and be legally represented. The then Cathaoirleach, Mr. Doherty, had to move aside from the Chair because he could not be judge and jury in his own case. We managed to bring that situation about which was quite difficult because it involved getting over the question of separation of power but the learned judge held that I was right on a number of instances, one being the matter of independence. Given that political charges had been made against the Cathaoirleach he had to move from the Chair because he could not be judge and jury in his own case under review. That was regarded as a fundamental element and strand in our democracy and I believe it relates to the issue of independence in the matter of review.
I believe I answered Senator Norris's question regarding the independence of the various assessments. They will be undertaken by health care professionals. There is a common summary assessment record. The schedule even sets out a set of rules governing financial assessment. In addition, the reviews must be carried out on the same basis as the original assessments. As I said, it is a very unambiguous approach and there is an appeals mechanism via the appeals officer and the Ombudsman.
There is still the question of being judge and jury in one's own case.
Is amendment No. 18 being pressed?
Amendment, by leave, withdrawn.
Amendment No. 19 not moved.
Amendments Nos. 20 and 21 are related and will be discussed together. Is that agreed? Agreed.
I move amendment No. 20:
In page 16, subsection (4), line 26, after "Act." to insert the following:
"The percentage of the home owed to the Executive should never exceed fifteen per cent.".
This issue is about the percentage value of the assets of the person going into the nursing home that should be distrained by the State. How is this estimated? This question of value arises from time to time and can be very unfair. I speak with some personal heat, because I inherited a small portfolio of shares from my late and beloved aunt and it took two and a half years to get the will out of probate. When I inherited the shares they were at the top of the market, but by the time I was able to sell them, they were at the bottom of the market. However, I had to pay the tax on the putative value of the shares at the top and got nothing like their value at the time I inherited them. I thought that grossly unfair, but I was able to sustain the loss and it did not matter a whole lot to me.
However, think of the situation of somebody who is in straitened financial circumstances. The situation may be slightly different, but the principle of fairness still applies. How and when is the value of a house estimated? For example, the property market is falling disastrously and rapidly. It may be decided that the value is estimated from the date of application, but then there may be a sudden catastrophic collapse in the value of property. Sometimes it can take a long time to get what one considers the proper value of the house and the person may hold out for as high a price as possible, but the value may continue to drop until, finally, the person is advised he or she must accept an offer. I believe people are entitled not to be caught in this trap. Therefore, my amendment seeks to establish the fairest valuation.
The language in this section is also a bit odd. I presume it refers to other assets besides the home. The language is curiously clinical, detached and cold when it describes the executive wishing to establish the estimated market value of any "item". A house is a bit more than an item, but I am not sure how to get round the problem because the word may cover a situation where there are other assets to be disposed of. I accept there is difficulty in finding a user-friendly word, but "item" does seem clinical. I am not sure another word can be found to get round the difficulty. The principal point is that people should not suffer because of a variation in market value and we should address the question of the point at which a value is established.
On a Finance Bill some time ago, having considered the matter in the aftermath of the stinging effect of such procrastination when getting something out of probate, I suggested property should be valued at the market value at the nearest possible point to when the asset can be disposed of. I made that suggestion in terms of stocks and shares and suggest the Minister should consider a formula on those lines to ensure people get fair value. I am talking here about the discrepancy between the imagined or assessed value and the real, quantifiable value. People are vulnerable in this situation and I would not like to see them disadvantaged.
The Fine Gael amendment proposes that the percentage value accruing to the executive under this part should not exceed 15% of the estimated value established under section 10. This would be a protection for people and is in line with Government policy. As we have seen, there is huge volatility in the markets and in valuations and a person's individual circumstances could fluctuate substantially within a short period and the person's or family's ability to pay could be seriously hindered.
If, for example, a house has lost value since its valuation when the individual entered a nursing home, will this section mean that upon probate the State could take more than 15% of the value of the home? In line with Government policy, we believe an individual should be guaranteed to pay no more than 15% of the value of his or her home back to the HSE. I would welcome a clarification from the Minister of State as to whether it is the intent to keep the percentage at 15%. Will there be ongoing valuations to ensure that remains the case or could we have a situation where, given current values, a person will be asked to pay what is, effectively, 20% or 30% of the value of the home?
Amendments Nos. 20 and 21 both propose a different approach to that currently provided for within the Bill with regard to the cap on the principal residence. Amendment No. 20 states that the percentage of the family home to be repaid to the State should not exceed 15%. However, the amendment does not specify the market value on which this percentage is based. It could be equally argued that it is the value at the time of the original application or at the time of repayment of moneys owed. This renders the provision legally ambiguous and for this reason, but not only for this reason, I cannot agree to accept it.
Amendment No. 21 stipulates that the cap should stand at 15% of the market value of the principal residence at the time of the original application for State support. However, I consider that the current approach set out in the Bill is fairer and more favourable for applicants for the following reasons.
First, the cap is currently applied after the first three years of care. In the case of a single person, the contribution payable is a maximum of 5% per annum, resulting in a total capped contribution of 15% if the person spends three or more years in care. In the case of a couple, the maximum contribution payable by each member is 2.5% per annum, resulting in a total capped contribution of 7.5% Thus, the three-year cap acknowledges the situation of couples by limiting the contributions of each member to 7.5%. Moreover, by capping contributions by reference to a time period, it has been possible to extend the cap retrospectively so that many people currently in care can benefit from having their existing time in nursing home care taken into account.
Second, the legislation provides for a financial review. Thus, in a climate of declining property prices, such as we are currently experiencing, a person can avail of this mechanism and reduce the contribution payable on their principal residence to take account of the declining value of the property in year two or year three. A straightforward 15% cap based on the original valuation of the property would not achieve this.
Third, while the Bill provides for the cessation of contributions after the first three years of care, it also takes account of the time value of money, namely, inflation or deflation. This is fair, since the taxpayer is effectively offering an interest free loan under this scheme. It is also important from the perspective of financial sustainability, particularly given the very generous system of further deferral offered within the scheme. The system of further deferral could result in families deferring the repayment of contributions for 50 or 60 years if they wished. In such circumstances, it is only fair and just that the time value of money would be acknowledged. For all of these reasons, I do not propose to accept amendments Nos. 20 or 21.
On a point of further information, the person submits a valuation with his or her application for State support. This is the point of valuation. However, a person can seek a review of the valuation at any time. The cap is based on three years rather than a percentage, although the effect of that is that the contributions are capped at a maximum of 15%, or in the case of a couple 7.5%.
Is amendment No. 20 being pressed.
No. The Minister of State made an interesting case and seemed to accept the principle with regard to fluctuations in value, the point in which I was particularly interested. She has made a good case for the Bill as it stands, taking that into account.
Amendment, by leave, withdrawn.
Section 10 agreed to.
Amendment No. 21 not moved.
Section 11 agreed to.
Sections 12 to 20, inclusive, agreed to.
SECTION 21.
Amendments Nos. 22, 23 and 24 are related and may be discussed together by agreement.
I move amendment No. 22:
In page 28, subsection (5), line 39, after "person" to insert the following:
"and particular regard to the expressed, verbal or written wishes of the person".
The amendment relates to the important matter of taking into account the expressed wishes of a person, whether verbal or written. It refers specifically to subsection (5) which states: "If the court is satisfied that the relevant person concerned is incapable, for the time being, of making a decision to which this section applies, and the court determines that it is in the best interests of the relevant person concerned having regard to the circumstances of the person, the court may appoint a care representative in accordance with this section". The amendment proposes to insert the words "having regard to the circumstances of the person" after the words "relevant person concerned" in the subsection. I am not certain the legislation covers or envisages a case in which, for example, a person going into care has made the equivalent of a living will in which he or she indicated a wish not to be resuscitated. Such a wish is perfectly reasonable and should be taken into account.
Amendment No. 25, which also addresses a substantial matter, proposes to insert the following new subsection:
"(44) (a) The assessment officer should be obliged to provide an education service where it is guaranteed a person with appropriate expertise would assist in the carrying out of the assessment.
(b) The assessment officer should ensure that the person carrying out an assessment would communicate with the applicant in a manner which facilitates appropriate participation, promotes dialogue about the nature of the assessment and that note is taken of the views (if any) of the applicant concerning his or her needs or preferences in relation to the provision of services to meet his or her needs.”.
I referred to the possibility of somebody having a stroke or suffering aphasia. People with the latter condition retain their logical capacity but the speech sector of the brain is damaged and they are not in complete control of their capacity to express themselves. In other words, they are trapped and while they know what they want, they have considerable difficulty in expressing it, which does not mean it is inexpressible. What is needed is professional assistance to ensure the intention and wish of the person is discovered and, if possible, acted upon. The person should be someone who is able to conduct a professional assessment, is knowledgeable, has experience of working with people with these types of conditions and is able to pursue any method or contact that would be able to draw forth the information sought. While some conditions, for instance, mental difficulties, stroke and so forth, may be untreatable and irreversible, their impact can be minimised by ensuring this type of professional person is available. The capacity, for example, of a person with short-term memory deficit to make a particular decision can be improved, as has been demonstrated, if trained in suitable techniques by an occupational therapist or physiotherapist. This is a classic practical example of how a person who apparently cannot make an informed decision can be assisted practically by a professional to make and communicate a decision.
Many communication difficulties arise from physical disabilities and can be overcome. This emphasises the importance of recognising the true basis of what is only an apparent incapacity. There should, therefore, be careful assessment of speech, language functioning, hearing and, if appropriate, sight. One must choose the best location, as has been noted, and it may be appropriate to have assessments done in the person's home given that tension, worry, anxiety and stress can also be factors.
It is important that ancillary services are provided while the assessment is being made. The nursing and midwifery council's guidance for the care of older people, which was published in 2009, suggests there may be physical barriers to communicating with older people. These include hearing loss, visual impairment, cognitive impairment, aphasia and loss of ability to speak or understand words. As it may take longer for a frail older person to process information, it is vital to ascertain who is the main carer and inspect the carer's knowledge and experience of caring for the person concerned as the carer will be best able to explain how to communicate with the person. In other words, the carer will have had long experience of dealing with the person in question and will, therefore, know his or her quirks and how to understand the signals he or she is giving.
Many recent media reports have raised concerns about literacy and numeracy, specifically among adults. If one is trying to obtain information from people about mathematical concepts such as sums of money, percentages and so on, one must be certain they understand the issue and are able to provide rational answers. I have been provided with curious and worrying statistics in this regard. For example, research published in 2008 showed worrying numeracy trends. Less than 60% of those with a primary education or no education were able to give a correct answer to the question, "What is 10% of 1,000?" I failed arithmetic but even I know that 10% of 1,000 is 100. The Minister of State will confirm that is the case. Even a dodo like me could work out the answer to that question, whereas 60% of people with a primary education or little education could not do so. While it may be wonderful that 90% of those with third level education could answer the question, it is even more worrying that 10% of those with university degrees could not provide a correct answer when asked what is 10% of 1,000. These people have not had a stroke, suffered brain damage and so forth. It is important to examine the capacity to explain this issue to people and obtain a proper and appropriate response from them.
We must also take into account that difficulties are sometimes caused by inadequate education and information. People also become flustered under interrogation. For this reason, taking the advice of someone who knows the person is a useful suggestion. When people are cross-questioned on programmes such as "Mastermind", "Today with Pat Kenny" or "Mooney", they are often unable to answer simple questions. People in radioland ask what kind of eejits cannot answer simple questions. The problem is that they know the answer but find it impossible to give it because of stress.
We also ought to take into account that other, quite recent legislation contains these kind of provisions for providing an education service, for example, the Disability Act 2005, in which the assessment officer is obliged to provide an education service where it is guaranteed that a person with appropriate expertise could exist in the carrying out of these kinds of procedures. For that reason, it seems that the Bill, to which I have given a general welcome, is incomplete without a clause that copperfastens the capacity for people to have assisted decision making.
I support the amendment. I refer, for example, to the OECD report on older people and transitions which pointed out how difficult the move into long-term care can be for individuals, that they may have significant difficulties communicating their needs, as Senator Norris stated, and that they may need to be helped in this process by an appropriately trained person, for example, a speech and language therapist. The purpose of the amendment is to tailor the process of the capacity assessment to the individual's need to demonstrate capacity successfully. It is important that there would be a provision such as this in the Bill. It would mean that the person's needs would be met more effectively and that they would be catalogued and noted more effectively so that in terms of a court case or any review of the care, for example, the stated wishes of the individual would be clearly laid out at an early stage of the assessment. The more we can do that, the better.
It is really about human dignity and respect for the wishes of the individual. Clearly, if persons are somewhat incapacitated, whether physically or mentally, they need help, whether on the educational level of which Senator Norris spoke or on a capacity level such as where one might need a speech therapist. This amendment ensures such is the approach that would be adopted. I assume when the care assessment is done this would be incorporated to a degree but this spells it out in more detail.
Amendment No. 22 obliges the courts to have regard to the wishes of the person who is the subject of the application when appointing a care representative. The care representative has a limited function under section 21 which extends only to matters relating to ancillary State support and the creation of a charge. However, the Senator's proposal represents a further safeguard for the person and is consistent with the guiding principles contained in the proposed mental capacity legislation. As such, I accept this amendment in principle.
Amendments Nos. 23 and 24 seek to exclude explicitly from the categories of care representative any medical practitioner involved in the assessment of the person's capacity. This is consistent with the overall policy intention of section 21 and I am happy to commit to considering its inclusion on Report Stage. I will, therefore, accept this amendment in principle.
Amendment No. 25 proposes to stipulate that an assessment officer must have sufficient expertise, must sufficiently communicate with the applicant and must note the applicant's needs or preferences regarding the provision of services. On the final point, it should be highlighted that the assessment of capacity will relate only to the issue of ancillary State support and the placing of a charge against the person's asset. This is the only aspect of a person's capacity which is being examined. As such, a person's power to state the preferences regarding services should not be affected by the care representative process. Moreover, the acknowledgement of a person's preference regarding services is a much wider issue which extends beyond the scheme. The scheme is fundamentally a scheme of financial support. However, within the legislation this issue is acknowledged in section 5 which enshrines the principle of patient choice for all applicants.
On the issues of expertise and communication, I can assure the Senator that medical practitioners undertaking functional assessments of capacity will be bound by their own code of ethics and will ensure such assessments are undertaken in a thorough and robust manner. Moreover, the functional nature of the assessment requires that a person must be provided with all relevant information in a manner which is most easily accessible for him or her and that the person must be supported to communicate his or her decision in any way possible. For these reasons, amendment No. 25 is unnecessary. However, I can advise the House that the Department of Health and Children is working on guidance documentation which will support medical practitioners in undertaking assessments under section 21 and will highlight all of these important considerations associated with the functional test of capacity.
I thank the Minister of State for graciously accepting the principle. I am quite certain that she and her advisers will come up with a better wording than ours, but it is important to acknowledge that the Minister of State has clearly accepted two amendments and there will be ancillary material produced which will support the principle of the third amendment so that we are ad idem on the matters. I welcome that positive development.
Amendment, by leave, withdrawn.
Amendments Nos. 23 to 25, inclusive, not moved.
Section 21 agreed to.
Section 22 agreed to.
SECTION 23.
Question proposed: "That section 23 stand part of the Bill."
On notification of death or discharge of a person provided with financial support, I note that the nursing home proprietor is requested to give notice in writing to the executive not later than three working days after such event. While I think I know the answer, on what basis is this request being made?
To cease the payment.
A nursing home proprietor would provide a bed for perhaps three, five or seven years and we give him or her three days after the death. Has this been discussed with service providers and are they satisfied with a three-day cut-off? It strikes me as being a short period. I do not want to put the Minister of State on the spot but I would ask that she discuss the issue with the nursing home representatives to see whether there is need for a longer period. A three-day period strikes me as being short. Perhaps it could be a seven, ten or 21-day period.
Under the current subvention scheme, they must give notice within 48 hours. Giving them a three-day period actually provides a longer period.
I would just make the point.
I thank the Senator. I will take that.
As I stated, a bed may be occupied for three, five or seven years. There is also a bond between the proprietor of a nursing home and the people involved in the provision of the services to the individual, and there is a mourning process in which they are involved. On providing for this cutting of the tie three days later, we should be more sensitive to those providing the service and a three-day period strikes me as just a little short. I am not pushing anything here. I am just asking the Minister of State to tease it out a tiny bit.
Question put and agreed to.
Sections 24 to 27, inclusive, agreed to.
SECTION 28.
Question proposed: "That section 28 stand part of the Bill."
We are running through this quickly. Is there any part of these sections where we seek disclosure of information on the financial aspects of the nursing homes? There are no sections where we seek disclosure.
It is later.
What section is it in? We are going through the sections very fast.
It is quite confusing.
It is in sections 40 and 41.
Question put and agreed to.
Section 29 agreed to.
SECTION 30.
I move amendment No. 26:
In page 41, subsection (1), between lines 6 and 7, to insert the following:
"(b) where a person is assessed as in need by reason of categories outlined in section 7(6)(c) reviews will be carried out at a minimum of every 6 months and no later than every 12 months;”.
This is a simple amendment requiring that reviews be carried out at a minimum of every six months and not later than every 12 months where a person is assessed as being in need under the terms of the categories outlined in section 7(6)(c).
I understand the intent of this amendment is to provide for situations where a person is in nursing home care but could return to their community if sufficient community based supports and services were in place. It stipulates that a review would be carried out every six months and no later than every 12 months to ascertain whether the person could move back to a community based setting. I can confirm that a person may seek such a review under section 30 as it currently stands. Moreover, I consider it in the person's best interests to empower him or her to request this review should he or she wish to do so, rather than require a mandatory reassessment regardless of the person's wishes.
It is worth highlighting that a care needs assessment could take anything up to three months. Accordingly, a person may not wish to undergo an assessment of their care needs every six months and may consider it intrusive or even have a distressing experience. Moreover, a person may be settled and content in a residential care setting. As such, he or she may experience a mandatory review, the effect of which is to establish whether he or she should be moved back to a community setting, as coercive or disrespectful of his or her dignity. For these reasons I cannot accept amendment No. 26, but I hope my clarification addresses the Senator's underlying concern.
I understand what the Minister of State is saying. However, the other side of this is a situation where a person may have regressed and need a review, and be sent to an even higher dependency unit. It is something that also needs to be discussed. This is a very good amendment. An assessment or review is always a good thing.
I said the review will be carried out no later than every 12 months and will work. If a review is carried out and a person needs a higher dependency unit that will be provided.
Is the amendment being pressed?
Amendment, by leave, withdrawn.
Amendments Nos. 27 to 29, inclusive, not moved.
Section 30 agreed to.
Section 31 agreed to.
Amendments Nos. 30 and 31 not moved.
Section 32 agreed to.
Section 33 agreed to.
SECTION 34.
I move amendment No. 32:
In page 46, line 8, after "ailment" to insert the following:
"and there is an appropriate facility or service that could treat the individual.".
This is to add in the phrase "and there is an appropriate facility or service that could treat the individual" which seems perfectly logical, practical and plain.
Amendment No. 32 limits the power to charge people in acute beds who are no longer in need of acute care to situations where there is an appropriate facility or service that could treat the individual. The amendment is legally ambiguous as the interpretation of an appropriate facility or service could vary in the opinion of the HSE and the person or the person's family.
For example, if a person continually rejects all available nursing home places as being unsuitable, does this mean he or she may remain in an acute setting indefinitely without being subject to charges? This legal ambiguity undermines the basic policy intention of section 34(3), which is to ensure the legislation does not create a perverse incentive to remain in an inappropriate acute setting. It is therefore not proposed to accept the amendment.
This also relates, as I understand it, to the problem of people in acute beds and the fact they are seen as bed blockers. It is a question of the most appropriate place for them to go.
Is the amendment being pressed?
Not at the moment, but I reserve the right to put table it on Report Stage.
Amendment, by leave, withdrawn.
Section 34 agreed to.
Sections 35 to 38, inclusive, agreed to.
SECTION 39.
Question proposed: "That section 39 stand part of the Bill."
I want to ask the Minister of State a number of questions on section 39 concerning transitional provisions. I suggest existing residents need clarity regarding what is proposed under section 39. It is very important that existing residents are not disadvantaged under the Bill. Do the provisions contained in this section mean the subvention rates for existing residents will not increase? The measure will effectively force all existing residents in receipt of subvention into the scheme. It is important the Minister of State clarifies the matter.
If residents opt to remain in the subvention scheme, will annual increases be provided to ensure the shortfall between subvention and the cost of care does not escalate and financially disadvantage existing nursing home residents? It is a query on the transitional provisions, their effect on people who are currently in nursing homes, how the new scheme will impact on them and the cost they are paying. Perhaps the Minister of State could clarify that.
Existing residents can stay as they are under the subvention, if they so wish. The Minister has given a commitment that no one will be made worse off. People already in public nursing homes can stay there in the same system they are currently. New admissions to public nursing homes will be different. Was that the question the Senator asked?
Yes. I also asked if increases will be given to people if the cost of care goes up and if they would not be financially disadvantaged. Is that allowed within the scheme?
Not within the fair deal scheme.
What will happen to people who stay under this scheme? Will they not be effectively forced into the new scheme?
The system will now be fairer across the board, in so far as nursing home costs will be made fairer and the inspection of nursing homes will take place by HIQA. The NTPF will bring fairer costs to nursing homes but there are no plans to increase the subvention.
It effectively means people who are already in nursing homes will have to move into the scheme because, assuming increased costs, the current subvention will not then cover the costs of their care. People will have to move into the scheme, given that the Minister of State said there will be no increases, even if costs go up.
They have the option to remain in it and the Minister has given a commitment that no one will be made worse off. I cannot give the Senator any other commitment on subvention levels.
The Minister of State might return to the issue on Report Stage and see whether clarity can be provided on that aspect of the Bill.
In light of the this section and the transitional arrangements, we are constantly referring to a two tier system and the anomalies that exist within it. Is this section accommodating anomalies? Of two people in very similar financial circumstances, could one who is currently in receipt of a public bed in a long stay institution without paying any contribution continue to enjoy that facility while the other, after the enactment of this Bill, is assessed as having a need and have to pay 15%?
This section has been inserted to provide existing residents with a choice. Residents may choose to remain as they are or to opt into the fair deal scheme.
It strikes me we may be accommodating anomalies and creating a two-tier system.
The intention is to make the system fairer for everybody.
I am not sure if the Minister of State answered my question in relation to a person's entitlement to switch from the current scheme to the new scheme. I am sure I heard the Minister of State say in response to Senator Callely that they can do so. However, the section states: "a person in receipt of a relevant subvention immediately before the commencement of this subsection shall continue to be paid the relevant subvention until...". The section provides that they "shall" rather than "may" continue to be paid. At what point can the switch or transfer occur when it is stated in the section that they "shall" continue to be paid the relevant subvention?
People can apply to switch to the fair deal at any time. The option is theirs, it is a choice.
Where is that particular option written into the legislation?
It is in section 39(1)(b).
Section 39(1)(b) states: “the date from which by reason of the determination of the Executive under section 11(1) State support is to be paid in respect of the person”.
This is another cop-out.
It is the heat. We are all boiling in here. It is worse than a nursing home. At least, the television is not blaring.
Does the person have to apply to transfer?
Yes.
The lodging of an application deems the person eligible to be considered under the new scheme.
Yes.
Perhaps the Minister of State will undertake to consider the matter which I have brought to her attention, namely, the anomalies that exist and will continue to exist under the new scheme. We are seeking to ensure fairness but the anomaly I have outlined exists. Perhaps the Minister of State will address the matter for Report Stage.
Question put and agreed to.
SECTION 40.
Amendments Nos. 33 and 34 are related and may be discussed together by agreement.
I move amendment No. 33:
In page 49, between lines 35 and 36, to insert the following subsection:
"(2) The Minister shall by regulations establish an arbitration scheme for resolving disputes which may arise under subsection (1).”.
I am suggesting here that the Minister should by regulation establish an arbitration system to resolve disputes which may arise under subsection (1). The Bill, as drafted, does not make provision for an arbitration process in the event that agreement cannot be reached between the Minister designate and the nursing home. For example, if the negotiator is the National Treatment Purchase Fund, NTPF, and it fails or refuses to agree to include a nursing home on the list of approved nursing homes, can anything be done? Will the Minister of State consider the inclusion of an arbitration mechanism? I am not sure how often this would arise but it could arise occasionally. There is a need for some mechanism in the interests of fairness and justice. This is evident in a number of areas already, including the construction industry and the NRA or the Department of Transport and the IFA. One can build in arbitration provision. I believe this to be a worthwhile amendment to accept to ensure access to justice by a person who believes not enough reasons have been given or who does not agree with the reasons they had not been accepted.
I believe that the system being established in this Bill is a closed system. We are not building in much opportunity for independent reviews, appeals or assessments. All the power is very much in-house. I do not believe enough opportunities are provided to go outside a fairly closed system of HSE assessments, which is not good for the individuals in care assessment and in nursing homes who could find themselves at a disadvantage owing to a lack of arbitration. Perhaps the Minister of State will consider this matter.
I support both amendments. However, in deference to Senator Mullen, I like his amendment which spells out much. The amendment seeks to delete in page 50, lines 31 to 35, "(3) In performing its functions under paragraph (1)(ba) the Board may examine the records and accounts of an approved nursing home or of a nursing home the proprietor of which proposes to enter into arrangements under paragraph (1)(ba).” and to insert:
"(3) Where the Board has formed the reasonable view that the price at which long term residential care services is proposed to be provided by a particular nursing home is, all things being equal, materially in excess of the price at which long term residential care services are provided by other comparable nursing homes, the Board shall have the power to request, by notice in writing, that the said nursing home provide the Board with a written explanation of the calculation of the price at which long term residential care services is proposed to be provided by such nursing home. In the event that the Board is not satisfied with a written explanation received under the terms above it shall have the power to request that the Minister as soon as is practicable, by notice in writing to such nursing home, designate a person to examine the records and accounts of such nursing home and to subsequently report the findings of such examination to the Minister and to the nursing home in question. A refusal on the part of a nursing home to comply with any notice pursuant to this section shall be construed as a withdrawal on the part of such nursing home from negotiations.".".
I like the careful and legal way in which this amendment has been framed. In other words, the board must form a reasonable view that it is getting a bad deal, that the price is somehow inflated and that the services provided should not be valued at the level at which they are valued. In other words, an excessive charge is being made. The board will then have an opportunity to request a written statement or explanation for the price and the Minister, if the board is not satisfied, can designate somebody to examine the records and try to find out the truth. Where there is a refusal on the part of the nursing home to co-operate, this is construed as a withdrawal on its part from the negotiations. This appears to be a carefully thought out and accurately worded instrument to ensure neither the State nor the individual is defrauded by bad value. For that reason, I am happy to support it.
Section 41 provides that arrangements are made to publish the cost of approved nursing homes with no corresponding provision in respect of public nursing homes, which is an interesting point. What is the cost of public nursing homes and how do they compare? I ask the Minister of State to consider, in the interests of transparency, publication of the cost of public provision.
Section 41(b)(iii) which was introduced by the Minister on Committee Stage is at variance with the statements made by the Department of Health and Children in its publication, A Fairer Deal, the Nursing Home Care Support Scheme 2008, which states: “Prices around the country are already known to the HSE and the Department and can be reasonably estimated already.” It further states:
We are already aware of prices around the country and will not be obliged to reach agreement with any particular provider or nursing home if its prices or unreasonable. We will seek co-operation from the private nursing home organisation.
Perhaps the Minister of State will come back to us on Report Stage in regard to whether she thinks it appropriate for the NTPF, as a monopoly purchaser, to request information that is not in the public domain, specifically, commercially sensitive information in a competitive environment, an issue which Nursing Homes Ireland asked us to raise with the Minister of State. I am sure they raised the matter directly with the Minister of State. I am interested to hear the Minister of State's view on the matter. I accept the question of commercial sensitivity arises. Without an arbitration process providers are put in a difficult situation. The NTPF also has the power to examine the records and accounts of such nursing homes and to subsequently report the finding of such examinations to the Minister and the nursing home in question. While I want to see transparency, I want to see it in the public as well as the private sector. I believe costs in respect of both should be published. We should be looking at the cost of public provision. In other words, how much is a bed in a public nursing home as compared with a bed in a private nursing home. This information would raise many interesting questions in terms of efficiencies and the provision of service.
If there is no access to arbitration, which is the point of this amendment, it would be heavy-handed to allow this in the absence of a corresponding provision in respect of publicly provided services.
We should leave this amendment until Report Stage to deal with the issue. It would be wrong to divulge commercially sensitive information to a monopoly provider.
I can understand why one would seek this type of disclosure when drafting legislation. Progress has been made over several years on achieving parity between the voluntary, private and public sectors in the provision of services. As a former health board member, I was aware of demands that the private and voluntary sectors should provide higher levels of service. I felt somewhat uncomfortable in this regard because it was not fair for a statutory authority to seek higher levels form others than it was prepared to provide itself. For this reason, I welcome that the inspection regime under the Health Information and Quality Authority, HIQA, will be on a level playing field.
I would like to believe the Minister of State, in her wisdom, will see the merit of what is being proposed. The amendment proposed by Senator Mullen deals with a purchaser who demands sensitive commercial information. Perhaps the Minister of State will clarify how the HSE will demand similar information from the public sector. It would be in the interests of this House to receive an indication on whether the substantive content of Senator Mullen's amendment will be accommodated on Report Stage.
While we should listen with respect to Senator Mary White because she has practical experience in the world of business, I am not sure that her argument regarding commercially sensitive information holds much water. We are considering issues of comparability and it is reasonable that when charges imposed by a particular nursing home are "materially in excess of the price at which long term residential care services are provided by other comparable nursing homes the Board shall have the power" to do this, that and the other. It is reasonable to seek to determine whether a charge is excessive. Perhaps I am missing something but I do not see anything commercially sensitive about the matter. I accept, however, that what is sauce for the goose is sauce for the gander and that it would be wrong of the State to demand standards from the private sector which it is not prepared to meet itself. I am not convinced by the argument on commercial sensitivity because the amendment is clear that a materially excessive charge is anomalous within the marketplace rather than in a situation where there is one provider. The State should be entitled to inquire into the reasons for charges being out of line.
Amendment No. 33 requires the Minister to provide an arbitration scheme for disputes between the National Treatment Purchase Fund, NTPF, and private nursing home owners. I reiterate that the scheme is voluntary. Private nursing homes can choose not to negotiate with the NTPF and they only participate in the scheme if they so wish.
That is not very likely.
I do not consider that arbitration would serve a useful purpose in this context. Arbitration is a wonderful tool where disputes concern complex work projects or prolonged and detailed service agreements. However, the issue in question is the price charged for the purpose of the scheme. The resident will decide which nursing home to occupy, the quality of the service will be governed by the new standards and supervision will be a matter for the Health Information and Quality Authority, HIQA.
The goods and services which constitute long-term residential care services will be effectively circumscribed by the information laid before the Houses of the Oireachtas by the Minister for Health and Children. As such, the NTPF and the nursing homes would not negotiate on the volume, range or quality of service to be provided. They will merely negotiate on price. If a nursing home cannot demonstrate to the NTPF that it is offering value for money, I fail to see the value of arbitration. The only possible role of an arbitrator would be to undermine the position of the NTPF, which effectively means undermining the taxpayer.
The issue of administrative costs also arises. The NTPF will negotiate with 400 nursing homes and the amendment would enable each of these to seek arbitration. The potential costs associated with such a provision would be significant both in terms of additional staff and the process of arbitration.
In framing this legislation, the Government has been mindful to place the person at the centre of every policy decision and to safeguard and protect the individual both as care recipient and taxpayer. It is not in the interest of care recipients or taxpayers to accept an amendment which would have the effect of undermining the NTPF's negotiating position before it commences its functions and diverting State funds away from the provision of financial support and towards an administrative procedure of questionable value. For these reasons I cannot accept amendment No. 33.
Amendment No. 34 limits the power of the NTPF to examine the records and accounts of approved nursing homes. This amendment is legally ambiguous because the interpretation of what is reasonable could differ between the NTPF and the private nursing home. It would be administratively cumbersome and time consuming because a number of written notices would be required from the NTPF, the nursing homes and the Minister. It would be necessary to designate separately an individual to examine the accounts of the nursing homes and prepare reports. The amendment excludes the board from receiving the final report and is unclear with regard to who determines the final outcome or agreed price. As such, it leaves a lacuna within legislation which would serve to undermine the entire scheme.
It should be noted that the existing provision states that the NTPF may examine the accounts of private nursing homes wishing to be part of the scheme. As such, the provision is enabling rather than prescriptive. It ensures the NTPF is legally supported in seeking prices for nursing home care which represent value for taxpayers' money and can guard against price collusion and cartel behaviour. I do not propose to accept the amendment, therefore.
The implication of the Minister of State's reply to amendment No. 33 is that an arbitration system should never be developed in case people decide to use it. The point of such a system, however, is that people can use it. That is the reason arbitration is used for labour relations and other areas. It is basic justice to allow arbitration in disputes. I do not think one should assume that all 400 nursing homes would rush to arbitration. Clearly, criteria would have to be met but this is a requirement in all systems of arbitration. The Minister does not accept the amendment on the basis that 400 nursing homes might go to arbitration. If the Minister took that approach no system would ever have arbitration within it and as we know, arbitration is a well defined mechanism that is used. Where there are varying views in industrial relations an arbitration system is set up. This is a basic measure that should be in the Bill.
I asked the Minister about the assessment by the National Treatment Purchase Fund in regard to the provision of the public bed. We are bringing in legislation that we say will be better than what exists, fairer and so on but I have a serious "bogey" with this aspect. Regardless of what is said on the floor of this House, and I do not know how an official of the NTPF may use this measure with a nursing home proprietor, but subparagraph (iii) states: "the Board may examine the records and accounts of an approved nursing home or of a nursing home the proprietor of which proposes to enter into arrangements under paragraph (1)(ba)”. If that measure goes into legislation it may or may not be used by an official of the National Treatment Purchase Fund. We do not know the context in which he or she may use it but we do know the public nursing home around the corner will not be subjected to the same scrutiny as the private operator. There is something wrong in that. I may misunderstand this section, and I hope that is the case, but it would be remiss of the Minister not to accept that there is a difficulty in this respect, that there is an unfairness and an imbalance and that it should be rectified in some form or at least further considered on Report Stage.
I concur with my colleague, Senator Callely, that it is wrong to have any potential interference when people are trying to do business to provide a much-needed service and then allow information to be left around the place. It is not business like, and we have a responsibility in this regard. People are setting up nursing homes and doing their best to provide a service and this is too much intervention by the State. It is an extreme, left wing political view of somebody trying to do business and very dangerous.
I am saying that the nature of the issue to be negotiated would not benefit from an arbitration system. The NTPF will need to obtain value for money because if it does not, the financial sustainability of the overall scheme will be undermined.
The ability to view accounts is only an enabling provision. We understand that accounts are routinely offered to the NTPF when negotiating with private hospitals. The NTPF will treat all information as confidential and commercially sensitive. Costs will be published also for public nursing homes. The Health Service Executive is audited every year.
I have a serious difficulty in that the Minister has not quite answered how the HSE will obtain a public bed and the records or accounts it may be able to assess of the public facility. I appreciate what the Minister is saying. Nobody, including nursing home proprietors, would be unwilling to sign up to value for money. That is not an issue but an issue arises in terms of inserting in legislation the wording I read into the record, which is creating an imbalance between the players in the marketplace. If I am reading it wrongly I would like to be corrected. If there is fairness in the marketplace I would be happy to see that wording in the legislation.
Hear, hear.
There is nothing the nursing home proprietors would fear in terms of their accounts but it does not seem to be fair that the private nursing home around the corner is not required to meet the same criteria as the public operator. We have come a long way in the past decade in bringing parity to the provision of these auxiliary services and facilities but this appears to be a step backwards. All I ask the Minister to do is give us some indication that she is listening to what we are saying and that she will provide some level of clarity on this issue before Report Stage. That is not too much to ask. We are simply seeking clarity. An issue arises in this respect. Anybody with a level of understanding of the marketplace would be sensitive to what is being requested from only one sector of the total sector of service and therefore this aspect is causing a slight difficulty for people like myself. All we are asking the Minister to do is discuss this aspect with her officials and the other relevant players to determine if there is any other way to address it. If there is not she might come back on Report Stage and indicate this is the only way but I ask the Minister to try to ensure that the people we will be asking to sign up to this legislation, that is, the private nursing home proprietors, would be happy to have this wording in the legislation. That is important in terms of moving forward.
Does the Minister wish to comment on that or can it be looked at on Report Stage?
The HSE will publish a list of its facilities and the cost of a bed in each facility. How that cost is arrived at will be laid before the Houses by way of the cost components under section 33. If the Senator wants to resubmit the amendment for further consideration on Report Stage it is up to him but I do not see how it can be clarified.
The Minister said there will be publication of the cost of a bed in public nursing homes. Section 41(1)(b)(ii) refers to arrangements to publish the cost of a bed in approved nursing homes but there is no corresponding provision in the legislation in respect of public nursing homes. Is that not correct?
That is correct.
The Minister is saying that the cost of the public bed will be made known but she is making arrangements for the private nursing home to publish the cost. She is saying it will be provided but there is an imbalance in that one is in the legislation and the other is not, as things stand in the published legislation.
The Minister is in a position to direct the HSE to publish a list of its facilities and the cost of the bed. How the cost is arrived at will come before the House by way of the cost components under section 33.
By way of what?
By way of the cost components under section 33.
Would the Minister explain that?
The Minister does not need this Bill to ask the HSE to publish a list of its facilities and the cost of a bed in each facility. Section 33 sets out the right to charge for public care. It states the charges may not exceed the costs. This means the costs must be publicly available.
In that case it makes perfect sense to put it into the legislation. In terms of relying on a Minister to ask the HSE to provide information, we have seen the difficulties that has led to in a range of areas in the past number of years where information has been very slow coming from the HSE. It has been very difficult to get accurate information and the health committee has frequently tried to get detailed information. I gave the example of where the Minister had directed that €25 million and €27 million be spent on implementation of A Vision for Change, but the €27 million disappeared down a black hole into other parts of the health service and was never spent on mental health services. With respect, the Minister having the ability to direct the HSE to publish is different from including it in legislation. There is an imbalance, as Senators on the other side of the House have pointed out.
The Minister of State has indicated I can resubmit, but that is not what I asked her. I asked her to consult her departmental officials and indicate to us tonight that she would be prepared to reconsider this section. I will make a suggestion to her. I am aware the HSE's various service providers provide annual reports which are normally laid before the House. The wording refers to "the records and accounts". If a table is made available for public facilities, it should be exactly the same as that would be acceptable to the NTPF from the private operators, not the records and accounts. I know tables are provided by organisations such as Bru Caoimhin, St. Mary's and St. Clare's, but they are chalk and cheese in being different the records and accounts of a private operator. I am simply asking the Minister of State to tease out the issue when she leaves the House. We may or may not make progress. I am not asking her to give a commitment that she will come back to the House, but if she would accept there may be an opportunity to have parity and a level playing pitch between all the players involved — public, private, voluntary and charitable — by bringing forward a table, if we cannot come up with another solution.
With respect, I am concerned about how this may be interpreted by an official at a later stage. The content and context of what Members are contributing to the debate in this and the Lower House will not be in the record. What will be before a proprietor is that the NTPF will have the power to examine the records and accounts of the approved nursing home. All I am asking is that the Minister of State accept that there is an issue in this regard which all sides of the House have raised. There is a substantial amendment in the name of Senator Mullen and, while I am not saying it is fully correct, on reflection and following discussion with relevant stakeholders, we may be able to reach agreement to some degree, with the result that the position would then be fairly acceptable.
It is appropriate to examine these matters. Apart from anything else, this is State money.
Nobody is denying that.
I know; I am just saying it. The Minister of State is defending the provision, as it stands, and seems to be subject to a degree of criticism from all sides. I have no difficulty with the board examining the accounts; it would be a scandal if it did not do so. Can one imagine what would happen if the newspapers were to get hold of this and found there was ridiculous overcharging and that we had been too paralysed to examine the matter? It is perfectly appropriate.
The market decides the price.
We should consider going along with Senator Mullen's amendment.
Is the amendment being pressed?
Before moving forward, is there any indication from the Minister of State which might be helpful?
I will certainly give thought to what has been said, but I cannot give any commitment.
Amendment put and declared lost.
Question put: "That section 40 stand part of the Bill."
The Committee divided: Tá, 22; Níl, 17.
Tá
- Brady, Martin.
- Butler, Larry.
- Callely, Ivor.
- Carty, John.
- Cassidy, Donie.
- Corrigan, Maria.
- Daly, Mark.
- Feeney, Geraldine.
- Hanafin, John.
- Keaveney, Cecilia.
- Leyden, Terry.
- MacSharry, Marc.
- Ó Domhnaill, Brian.
- O’Brien, Francis.
- O’Donovan, Denis.
- O’Malley, Fiona.
- O’Sullivan, Ned.
- Ormonde, Ann.
- Phelan, Kieran.
- Walsh, Jim.
- White, Mary M.
- Wilson, Diarmuid.
Níl
- Bradford, Paul.
- Burke, Paddy.
- Buttimer, Jerry.
- Cannon, Ciaran.
- Coffey, Paudie.
- Coghlan, Paul.
- Cummins, Maurice.
- Donohoe, Paschal.
- Fitzgerald, Frances.
- Healy Eames, Fidelma.
- McFadden, Nicky.
- Mullen, Rónán.
- Norris, David.
- O’Toole, Joe.
- Regan, Eugene.
- Ross, Shane.
- Ryan, Brendan.
Tellers: Tá, Senators Fiona O’Malley and Diarmuid Wilson; Níl, Senators Maurice Cummins and Nicky McFadden.
Question declared carried.
Amendment No. 34 not moved.
Question, "That section 41 stand part of the Bill", put and declared carried.
Sections 42 to 48, inclusive, agreed to.
SCHEDULE 1.
Amendment No. 35 is out of order as there is a potential charge on Revenue.
Amendment No. 35 not moved.
Amendments Nos. 36 and 37 are related and may be discussed together.
I move amendment No. 36:
In page 64, lines 38 to 47 and in page 65, lines 1 to 3, to delete paragraph 7.
I support the amendments. When the Bill was published, the initial response of most people was a general and guarded welcome to the proposal as it was felt it would put in place a system of care with a system of payment which was fair, reasonable, transparent and affordable to a reasonable extent. However, the fine print of the Bill was studied and in advance of the debate in the other House the issue came to light about the capping rule whereby the three-year cap would apply only to a private residence. This regulation will have a negative effect and will impact on many people such as farming families and those with small businesses, who instead of having a repayment charge of 15%, 5% per annum for a maximum of three years, could instead have a repayment of 25% to 50% at the time of a bill finally issuing.
I appreciate that in response to the concerns and the arguments put forward, there was some degree of relief granted in the other House by way of a slight change in the technicalities of the scheme and it would provide that in a small number of cases where illness occurred in a sudden fashion, the three-year ruling would again apply. However, I am speaking about the majority of cases in so far as farming families and those with small businesses are concerned, who would not enjoy the relief offered by the Minister of State in the amendment put forward in the other House.
I am asking the Minister of State to reflect on the possibility of changing this section and the calculations as they are determined in the legislation to ensure that the 5% per annum with the maximum of 15% charge would apply in all cases. If this suggestion was not accepted, many people, farming families and those with small businesses in particular, could end up facing massive charges against their estate and this would be unfair. I hope the Minister of State will try to meet us some way on this issue.
Senator Bradford has pointed out the anomaly and injustice. The Bill as drafted has serious implications for farmers and small business owners. While nobody will end up paying more than the cost of care they receive, the deferred charge in the case of the principal private residence is capped at 15%, 5% for three years, but there is no cap on the deferred charge and other fixed assets such as land, farm buildings, commercial and investment property and small businesses which may not be hugely profitable. The situation could emerge where a person with a very valuable residence would be relatively undercharged. The Bill as drafted does not take into account the sustainability of farms or small businesses and it gives preferential status to principal private residences. This is a concern and there is also concern about the impact of the deferred payment on the viability of farms and small businesses.
The Minister of State introduced some changes on Report and Final Stages in the other House to the cap on farms and small businesses, but Fine Gael does not believe that these address the problem adequately. The Bill states that the three-year cap will not apply unless the person has suffered a sudden illness which caused the person to require care services, but there is no definition of what is considered to be a sudden illness. It may be that the illness is sudden but it may have been there for a long time and the person has only suddenly become aware of it. This issue is unclear in the Bill. It was a relatively late amendment from the Minister of State but I ask her to clarify that matter. The potential cost to people is significant.
The Bill requires the person to prove that a substantial part of the working day of the person requiring care services or his or her partner was regularly and consistently applied to farming the farm or carrying on the relevant business until the onset of the sudden illness or disability. This is a very strict criterion given the current situation in farming, with people sometimes working on farms and in the community. This is a very rigorous assessment.
We have concerns about the impact this will have, the cost to families and the viability of small farms and businesses, given the implications of the legislation and the lack of a cap on these assets.
The Senator is proposing to delete paragraphs which I introduced on Report Stage in the Dáil. These paragraphs were introduced to address concerns expressed by a number of Deputies on both Second and Committee Stages about the treatment of farms in the Bill. The effect of the amendments is to extend the three-year cap to farms and businesses in certain circumstances. The amendments provide that a farm or business shall be taken into account within the financial assessment for three years only in the following circumstances: where the person has suffered a sudden illness or disability which causes him or her to require long-term residential care; where the person or his or her partner was actively engaged in the daily management of the farm or relevant business up to the time of the sudden illness or disability; and where a family successor certifies that he or she will continue the management of the farm or relevant business. The policy intention underpinning the paragraphs is to safeguard the financial sustainability of family farms and businesses by ensuring that contributions from such assets are capped and fully quantifiable. As such, removal of these paragraphs would be detrimental to applicants to the scheme. I wish to highlight that the measures have been welcomed by the Irish Farmers Association. We envisage the majority of people would have transferred their farms or businesses more than five years before applying for the scheme, especially given that farming representative groups support early succession of farms. In this case, the farm or business will not be taken into account and no contributions will be payable.
The new measures I introduced on Report Stage in the Dáil address the situation where a person would not have had the opportunity to transfer such assets. For these reasons, I cannot accept amendments Nos. 36 and 37.
The Minister of State said farming organisations have welcomed her proposed changes. Members of the Oireachtas take note of what representative groups say. It is my clear understanding that farming organisations welcomed her Report Stage amendments as a very small step in the right direction. They do not deal with the concerns of the 98% of farming families or small business owners who will not fall ill suddenly and have to take up places in a residential nursing home.
What was the thinking behind not having a cap? The Bill has been welcomed on the basis that care must be paid for and that a reasonable balance is struck by putting a 5% per annum charge, with a maximum 15% possible charge, on a person's private residence. Why was it decided that the 5% charge would be limitless as far as enterprise, business and agriculture was concerned? The Minister of State's response on Report Stage in the Dáil was to alleviate, to a very small degree, the difficulties caused by the original wording. When Deputies and farming organisations pointed out this anomaly, there was a reasonable degree of acceptance by the Minister for Health and Children that the matter needed to be addressed. The Government's response to the issue is inadequate. Nevertheless, I would like to know the thinking behind the idea of saying 5% of all assets could be charged with no limit on the size of the final bill.
I am not impressed by the suggestion that the threat of a huge nursing home charge will encourage farmers to transfer their farms at a younger age. While we all support the transfer of land to young farmers, everyone has a constitutional right to private property and we should not force people to transfer their assets. The Bill attempts to do that. Social welfare legislation uses the phrase, "for pension purposes", with regard to the transfer of assets to qualify for a means-tested payment. An asset which was transferred in the previous two to three years is taken into account when means are assessed. This Bill attempts to chart a new direction. It gives every possible wrong signal and it should be reversed. The Report Stage amendments deal with a tiny fraction of what could become a substantial problem.
When discussing an earlier section, I referred to the significant number of people who are afraid to grow old because of the financial concerns associated with doing so. This section will cause farming families, shopkeepers, publicans and owners of small businesses to fear that by the time they pass on to their eternal reward their asset will have a 100% charge due to the State. That should not result from this legislation. I hope the Minister of State will examine this matter and try to make genuine progress as opposed to the baby step which was the Report Stage amendment.
I agree with Senator Bradford. The Government has taken a very small step to address the serious issue of farm families confronted with having to pay for nursing home care. Such families could be exposed to huge costs and forced to sell the family farm to pay for nursing home care. A person who spends three years in a nursing home costing €800 per week will pay more than €124,000, which is 80% of disposable income. Despite the Government's amendment, the legislation has an unfair impact on such farming families or owners of small businesses. It could have serious implications for the ability of future generations to carry on the farming tradition.
Senator Bradford asked where the idea of not having a ceiling on charges on farming assets came from. Why was this approach taken to other assets when the limit on residences was clearly set at 15%? The Minister of State has not answered that question.
The question of transfer of ownership is of great relevance to farming families. The transfer of a family farm must have taken place at least five years before the time of the assessment of means to have it excluded from the assets for the purpose of the deferred charge. This presents difficulties. The Minister of State referred to the support of the IFA. That organisation's chief economist, Mr. Con Lucey, showed that where the value of the farm asset is excluded, the individual contributes 33% of the total cost of care and the State contributes 67% but where the farm asset is included, the individual carries 81% of the cost of care and the State carries 19%. That is not equitable. The five-year transfer rule will have serious implications for families and for the transfer of farms to a younger generation.
The amendments introduced on Report Stage in the Dáil do not address this serious issue. They go only a small way towards dealing with it. The interpretation of the sudden illness measure is far from clear.
The measures are based on a proposal submitted to the Minister for Health and Children by the IFA. The 5% is consistent with the current subvention scheme. The interdepartmental working group on long-term care considered that this was a fair amount to contribute to long-term care. Bearing in mind that it is capped at the cost of the care, rich people may pay less than 5%. This measure gives owners of farms or businesses who have not had an opportunity to transfer their property to someone else an opportunity to cover the cost of their care at a capped cost of 5%.
Sudden illness and disability is not defined because it would be impossible to take account of all possible individual situations. As such, any definition could seem to exclude people who might otherwise benefit from these important measures.
I wish I could say I felt the Minister of State had a sympathetic understanding of our argument. I feel she does not appreciate or understand the issue.
I repeat my question, which was also asked by Senator Fitzgerald. What is the thinking behind this proposal? Before any applicant comes to occupy a nursing home bed, a financial assessment will have been made. The multimillionaires, be they captains of industry, huge landowners or even lottery winners, will not come within the system anyway because they will have been excluded by virtue of the earlier financial assessment. Every person who applies for and receives State support under this scheme will have already passed a type of means test so the super wealthy will have been excluded. That is not our concern. We have in mind the so-called ordinary people — a phrase I dislike — who might be the local shopkeeper, publican or farmer. I cannot understand how this idea of the 5% per annum, capped at 15%, does not apply to these people.
While the Minister referred to the farming organisations' request for particular changes, to which she acceded, she is absolutely aware that what the farming, business and other organisations sought was the application of the three-year rule. That is what we must try to bring about from the point of view of fairness and equity. Every applicant who is in receipt of support will have already jumped the hurdle with regard to the State's view of their cash, asset value and means. However, those successful applicants will be divided into two categories, the people who have a principal private residence which could be worth any amount and the people whose kingdom might consist of the old-fashioned cottage acre, which bizarrely would result in the 15% limit applying to the cottage and no limit applying to the acre. There will be such anomalies while this clause and thinking apply. We are not talking about the big stud farm owners but a person who might have just a cottage acre or a tiny shop. The Minister must reflect on this. If the legislation is about fairness and a fair deal, this is not fair or a fair deal.
If I accept these amendments, there will be no cap because the Members proposed no alternative. The majority of people entering nursing homes are between 70 and 80 years of age and, as such, the majority of farms and businesses will have been transferred. These new measures will support people who enter at a younger age.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
I move amendment No. 37:
In page 65, lines 4 to 16, to delete paragraph 8.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Question proposed: "That Schedule 1 be Schedule 1 to the Bill."
The Committee divided: Tá, 21; Níl, 16.
Tá
- Brady, Martin.
- Butler, Larry.
- Callely, Ivor.
- Carty, John.
- Cassidy, Donie.
- Corrigan, Maria.
- Daly, Mark.
- Feeney, Geraldine.
- Hanafin, John.
- Keaveney, Cecilia.
- Leyden, Terry.
- MacSharry, Marc.
- Ó Domhnaill, Brian.
- O’Brien, Francis.
- O’Malley, Fiona.
- O’Sullivan, Ned.
- Ormonde, Ann.
- Phelan, Kieran.
- Walsh, Jim.
- White, Mary M.
- Wilson, Diarmuid.
Níl
- Bradford, Paul.
- Burke, Paddy.
- Buttimer, Jerry.
- Cannon, Ciaran.
- Coffey, Paudie.
- Coghlan, Paul.
- Cummins, Maurice.
- Donohoe, Paschal.
- Fitzgerald, Frances.
- Healy Eames, Fidelma.
- McFadden, Nicky.
- Mullen, Rónán.
- Norris, David.
- Regan, Eugene.
- Ross, Shane.
- Ryan, Brendan.
Tellers: Tá, Senators Fiona O’Malley and Diarmuid Wilson; Níl, Senators Maurice Cummins and Nicky McFadden.
Question declared carried.
Question, "That Schedule 2 be Schedule 2 to the Bill", put and declared carried.
Question, "That the Title be the Title to the Bill", put and declared carried.
Bill reported without amendment.
When is it proposed to take Report Stage?
Next Wednesday.
Report Stage ordered for Wednesday, 24 June 2009.
When is it proposed to sit again?
Ag 10.30 maidin amárach.