Seán Crowe (Dublin South West, Sinn Fein)
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The purpose of the meeting is for the joint committee to discuss the general scheme of the health (amendment) Bill 2022, which has been referred to us for pre-legislative scrutiny. The committee is required to report on this by 21 December. To enable the committee to consider this matter further, I am pleased to welcome representatives from the Department of Health, Ms Laura Casey, principal office, Ms Fiona Larthwell, principal officer, and Ms Nuala O'Reilly, assistant principal officer.

All present in the committee room are asked to exercise personal responsibility to protect themselves and others from the risk of contracting Covid-19.

Witnesses are reminded of the long-standing parliamentary practice that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable or otherwise engage in speech that might be regarded as damaging to the good name of the person or entity. Therefore, if any of their statements are potentially defamatory in relation to an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative that they comply with any such direction.

Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against persons outside the Houses or an official either by name or in such a way as to make him or her identifiable. I remind members of the constitutional requirement that they must be physically present within the confines of the Leinster House complex to participate in public meetings. I will not permit a member to participate where he or she is not adhering to this constitutional requirement. Therefore, any member who attempts to participate from outside the precincts will be asked to leave the meeting. In this regard, I ask members partaking via MS Teams to confirm, prior to making their contributions, that they are on the grounds of the Leinster House campus.

I invite Ms Casey to make her opening remarks.

Ms Laura Casey:

I thank the committee for the invitation to discuss the general scheme of the Bill. I am a principal officer in the social care division in the Department and I am joined by my colleagues, Ms Fiona Larthwell, principal officer, and Ms Nuala O'Reilly, assistant principal officer.

I would like to outline the background and rationale behind this draft legislation, before briefly addressing some of its main provisions. The purpose of the Bill is to amend the Health Act 2007 and enhance aspects of the regulatory framework for designated centres regulated under the Act. This includes residential centres for older persons, people with disabilities and children. The ultimate objective of these proposals is to drive improvements for people living in these centres.

By way of background, the Health Act 2007 established the Health Information and Quality Authority, HIQA, and the Office of the Chief Inspector of Social Services. It also provides for a scheme of registration and inspection of the aforementioned residential services and for the making of regulations and the setting of standards on safety and quality in these services. The chief inspector monitors compliance with these regulations and standards.

A key driver for the legislation is the Covid-19 nursing homes expert panel report. As the committee will be aware, the expert panel made a series of recommendations not only on the response to Covid-19, but also on reform across the nursing home sector. The legislation addresses two areas of recommendations within the report: first, the requirement to modernise and enhance the regulatory framework governing nursing homes and, second, the need for mandatory reporting of key data by nursing home providers. The need for reform of the regulatory framework has also been identified in a number of previous reports from HIQA.

It has been agreed that a programme of regulatory reform in the nursing home sector will be pursued on a phased basis, with initial enhancements provided for in this legislation. The intention is that these initial enhancements will span two thematic areas, providing for a broader suite of enforcement tools available to the chief inspector and the collection, sharing and publication of key data on designated centres. As part of a second phase of work, the Department will undertake a further, more comprehensive review of the regulatory framework in the coming year.

I now move on to the provisions of the Bill. On the first thematic area, enforcement, the intention is to introduce new enforcement powers for the chief inspector to issue advance notices and non-compliance notices and, if necessary, to obtain urgent orders through the courts. The main provision for this is set out under head 6, with related or consequential amendments under heads 7, 12 and 15. The intention of these proposals is twofold. First, the introduction of advance notices and non-compliance notices will establish a more proportionate and graduated set of powers and tools for the chief inspector, focusing on bringing a provider into compliance and driving service improvement, as opposed to current powers that are limited to attaching restrictive conditions to a registration or cancelling registration, which HIQA has described as blunt instruments. These proposals have been informed by practice in other regulatory areas. Second, the introduction of urgent orders will provide the chief inspector with a means to react more quickly and effectively to urgent issues where it is believed that there is an immediate, material, adverse impact on the health, welfare, care or safety of a resident. Head 15 will introduce a number of offences carrying a proportionate range of targeted penalties to ensure the effective operation of these new tools.

In addition to the introduction of these enforcement tools, a number of enhancements and clarifications to existing enforcements provisions are also provided within the general scheme. First, head 8 provides the chief inspector with the express power to remove a condition attached to a registration, removing the need for the registered provider to make an application on the associated costs.

Second, heads 9, 10 and 11 provide for a reduction in the timelines for registered providers to make representations in relation to a proposed decision by the chief inspector under sections 50, 51 and 52 of the Act, or to appeal a decision to the District Court under section 55. These sections relate to decisions to impose or vary conditions on registration or to cancel a registration. The intention is to reduce the timeframe from 28 days to 14 days. This will align with timeframes for other court appeal processes. Third, head 14 provides a definitive, clear legal basis for the chief inspector to enter a premises that is unregistered to inspect it, where he or she has reasonable grounds to believe that the business of a designated centre is being carried out on that premises. This will provide absolute clarity that the protections afforded to residents of registered designated centres are extended to those who are in centres that have not been included in the registration and accompanying inspection regime.

Turning to the second thematic area, that of the collection, sharing and publication of key data, given the nature of the nursing home sector, in particular, with approximately 570 separate, registered entities, the majority of which are in private ownership, regular collation of key data on a voluntary basis and in a timely manner can be challenging. We all know that access to good-quality data is crucial to support national policymaking and service planning. It is also the case that the publication of data can improve transparency, drive service quality improvement and support prospective residents and their families to make an informed choice regarding their nursing home care. The intention of head 4 is to provide for a new function for the chief inspector to establish and maintain a reporting mechanism for the collection of key data in relation to designated centres. Once collected and then pseudonymised, this data will be shared with relevant Ministers and relevant State agencies, including HIQA, the HSE and Tusla. This head also provides for the publication of prescribed data relating to designated centres for older people to improve service user choice and transparency in the sector.

As set out under head 17, the operation of this reporting mechanism, including the data that will be collected, shared and published, will be determined by regulations made by the Minister for Health or the Minister for Children, Equality, Disability, Integration and Youth, as appropriate. Given that responsibility for the designated centres concerned rests with two separate Ministers, two similar but separate sets of provisions are set out in this head. It should be noted that while the enabling provisions under head 4 will provide for the reporting of data for all designated centres within the scope of the Health Act, they will not apply until regulations are made for each type of designated centre by the appropriate Minister.

A small number of additional enhancements and clarifications are provided for in the draft legislation. Head 5 will provide an express provision for the sharing of information by the chief inspector with HIQA. Heads 13 and 15 will provide that it is an offence to provide false or misleading information to the chief inspector. Head 16 provides that in any proceedings for an offence under the Act, the burden of proof shall be on the registered provider who is relying on the defence of reasonable excuse.

While the impetus for the proposed regulatory changes has arisen in relation to nursing homes, in particular, it is intended that the proposed amendments, in the main, will apply to all designated centres covered by the Act. In concluding, it is important to reiterate that the ultimate objectives of these provisions are to enhance service provision and to improve the protections for residents and centres. We are also aware that any new provisions must be proportionate. The draft legislation has been informed by stakeholder engagement and developed with this principle in mind. Again, I thank the committee for giving its time today and we look forward to the opportunity to further discuss the proposals.

Seán Crowe (Dublin South West, Sinn Fein)
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I thank Ms Casey. I invite members of the committee and other Members to discuss this matter with the witnesses.

Ms Laura Casey:

The data to be collected will be developed further and laid out in regulations. The first point I will make on nursing homes, in particular, is that very little data are currently in existence at a national level. The recommendation from the expert panel was precisely to that point. While that has always been the case, a real light was shone on it during the Covid-19 pandemic. Very little data are currently collected at a national level. We are beginning to have some engagement, and have had some already, with stakeholders, HIQA and the HSE on what data will be useful in policymaking and service planning, in addition to better informing prospective residents and families when they are choosing a nursing home. Initial consultation has begun on that.

I do not want to be definitive but to give some examples, at present there is no national database that gives an idea of resident profile within the nursing home sector. We have very little data on staffing within the sector or around bed occupancy levels. Some of the data are quite baseline, to be honest. In developing a new system of data capture, we need to be conscious of proportionality and not overly burdening a system. We will pay very close attention to what data can make a difference to policymaking and service planning at a national level.

Ms Laura Casey:

It is twofold. It is for the Department and the HSE in terms of service planning, projecting demand into the future and ensuring there are sufficient resources across the sector. Baseline data that enable us to project demand into the future will be important. The second purpose is very much around user choice. The findings from the first care experience survey within the nursing home sector were published quite recently. One of its findings was that approximately 30% of residents felt they did not have enough information about the nursing home they went into in advance of them going into it. Some of the data will help to inform prospective residents and families when choosing a nursing home in the future. There are two purposes to the data collection. One is more around national planning and service planning within the nursing home sector, and the other is for families and residents.

The heads provide that HIQA and the chief inspector will use this information for their own purposes to inform their regulatory oversight of the sector. That relates more to key operational data on resident profile, staffing profile and bed profile in the sector. There are very presently very few data, given the nature of the sector, that give us full oversight.

Ms Laura Casey:

The Department has undertaken a number of demand and capacity projection exercises in recent years. The Economic and Social Research Institute, ESRI, has done a number of pieces of research around this to help to plan and understand the demand into the future in order that capacity can be built up around it. It is more on that national and regional level. We do not have information on a regional level. As we move towards regional health areas, RHAs, this will enable the data to be disaggregated on a regional basis also.

Ms Laura Casey:

Ms O'Reilly might correct me on this. There are two main sets of SIs on care and welfare, which are regulations from 2013, in addition to the designated centres regulations. They have not been amended very much in recent times. There have been a number of quite small amendments to the care and welfare regulations. We have worked up an informal consolidation to assist people to understand the regulations.

The Minister hopes to publish revised regulations around complaints and access to advocacy services in the coming days. We hope to include those in the informal consolidated version of the regulations. The Act is reasonably old at this point, dating from 2007, the regulations were made in 2013, and there has not been much legislative change in the period since. It is timely that we are reviewing the legislation applying to the sector.

Ms Laura Casey:

The 2013 regulations set out requirements for complaints processes in nursing homes. Like most areas of complaint, the first port of call is the internal process. Each nursing home is required to have an internal process. We have been considering this matter arising out of recommendations from the expert panel and the recent extension of the remit of the Patient Advocacy Service to enter private nursing homes. The Minister hopes to publish revised regulations in the coming days to strengthen the requirements around complaints processes.

There is generally a complaints officer in a nursing home who reviews complaints. My understanding from speaking to stakeholders, including advocacy groups, is that the majority of complaints can be resolved quickly and on a somewhat informal basis, but there are also processes for formal complaints and reviews of same. All of this is within the internal complaints process. Residents and family members then have recourse to the Ombudsman for an external review of complaints where they do not believe those complaints have been dealt with satisfactorily within the internal complaints process.

Ms Laura Casey:

Currently, HIQA does not have a statutory role in examining and investigating complaints. It receives quite a volume of complaints, though, and it takes these into account in its risk-based approach to oversight and inspections within the nursing home sector. However, it does not have a specific legislative role to investigate complaints. Another recommendation from-----

Ms Laura Casey:

There are a number of avenues. It is an issue across the health sector more generally, not just the nursing home sector. The Department is undertaking several pieces of work on examining patient complaint and patient safety incident policies across the system. The intention is to try to have a standardised process and to examine the external recourse for complaints. Several pieces of work are ongoing on developing a standardised system across the health sector. Currently, HIQA does not investigate complaints, and this issue is being considered within that process.

An area where a decision has been taken to give HIQA a new power is in serious patient safety incidents. The Minister will table an amendment to the patient safety Bill to provide the chief inspector with a discretionary power in circumstances where there is a serious patient safety incident involving a resident where part of his or her care is provided in a nursing home. In specific cases, this will allow HIQA to examine the incident, not just within the nursing home but within the broader health system. I believe the Minister will be tabling that amendment later this month.

Róisín Shortall (Dublin North West, Social Democrats)
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I thank Ms Casey for her presentation. In a nutshell, what will be the main advantages or benefits of this legislation?

Ms Laura Casey:

HIQA's current enforcement provisions are "hammeresque", as it were, and are mostly concerned with restrictions, in that HIQA places conditions on and restricts a nursing home provider's business in some way or cancels a registration. What we are proposing in this Bill is focused on affirmative actions. HIQA will be able to issue a notice - in some ways, it could be called a warning notice - where it believes there is non-compliance. It will set out clearly within that notice where the non-compliance arises and how it believes that non-compliance can be rectified, and it will give the provider a specific timeline to come back into compliance. This legislation is much more focused on positive action to remedy non-compliance as opposed to attaching restrictive conditions or cancelling registrations. It is a different side of the coin compared with the current provisions. HIQA has been vocal in calling for a graduated set of powers. These are generally the types of provision that are given to regulators in other areas and we have tried to draw on practice in other areas to inform the proposals.

Róisín Shortall (Dublin North West, Social Democrats)
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Will there be a requirement for a substantial number of additional inspectors?

Ms Laura Casey:

I do not believe so. No new obligations are being placed on the providers. This Bill just gives the chief inspector a broader range of tools to address areas about which HIQA is concerned.

Róisín Shortall (Dublin North West, Social Democrats)
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Is Ms Casey not saying that HIQA will need to take a slower approach with individual nursing homes or have a more involved engagement with them? That implies a requirement for additional staff and staff time.

Ms Laura Casey:

What we are providing for is a formalisation of existing practice. In advance of moving to the more extreme provisions within its powers, HIQA already tends to work with providers on an informal basis. HIQA would not just land a section 51 process on a provider; there would already have been a number of engagements with the providers. There will obviously be more formalities to go through. With HIQA, we will have to work through how this will work in practice, but I do not believe it will place significant additional work on the regulator.

Róisín Shortall (Dublin North West, Social Democrats)
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It is difficult to see how that would be the case if the new powers were being used fully.

The expert group reported in August 2020 and made a lengthy list of substantial recommendations. Why has it taken so long to produce this draft legislation and why is the Department taking a two-stage approach instead of dealing comprehensively with the expert group's recommendations?

Ms Laura Casey:

I agree, as we would have liked to have drafted this legislation faster. One of the advantages of what we have done is that, when we got into the detail of it, we ended up seeking legal and drafting support. We have done a quite a bit of work that will save us time in the drafting stage. We need to engage with the Attorney General's office on this, but-----

Róisín Shortall (Dublin North West, Social Democrats)
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Where was the difficulty in the drafting?

Ms Laura Casey:

Just to get the provisions right. There were many details and data protection issues to consider within the reporting heads. There was also significant consideration around getting the compliance provisions right for the sector. Instead of lifting provisions for other areas, we nuanced them, given that the nursing home sector is different. I take the Deputy's point and we had hoped to move on this more quickly, but we also hope that the Bill can now be drafted speedily and we can get it into the Houses quickly next year.

Róisín Shortall (Dublin North West, Social Democrats)
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Why is it that just a limited element of the expert group's report has been taken on board for the legislation? Why is the Department not dealing with it comprehensively?

Ms Laura Casey:

There are a number of areas. The compliance tools and the data reporting were identified quite early as requiring primary legislation. This work is comprehended in the legislation before the committee. The regulations are also being looked at. A number of the expert panel's recommendations relate to the 2013 regulations and parallel work is being done in conjunction with HIQA to look at revising these. We hope to be able to move on this quickly early in the new year. A lot of work has been done on it.

The second phase of work is a more broader review of the regulatory framework. A number of pieces of work are ongoing to inform this. In particular, we have committed a piece of research to look at the regulatory frameworks in a number of countries to identify trends in regulatory approaches to the nursing home sector. We hope to receive this at the end of the year. This will give us a platform for a more thorough comprehensive review of the legislation in a more holistic way.

Ms Nuala O'Reilly:

The Deputy will be aware that the Health Act 2007 deals with designated centres for people with disabilities, older persons and children's centres. With the transfer of certain functions in the Act to the Department of Children, Equality, Disability, Integration and Youth, it would take a longer time to separate the nursing home elements if that is the approach to be taken. There is a lot of consideration to be made for the wider review of the Act.

Róisín Shortall (Dublin North West, Social Democrats)
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In many ways that would increase the urgency of the need to address the significant issues raised by the expert group. This will apply to centres for people with disabilities. It is quite disappointing. The report of the expert group more than two years ago was pretty damning of the regulatory framework. What we are seeing now is just scratching the surface and dealing with partial recommendations. The rest of the work has been kicked down the road to some point in the future. How many people in the Department are dealing with the area of regulation of residential facilities?

Ms Laura Casey:

In the Department working in the legislation?

Róisín Shortall (Dublin North West, Social Democrats)
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Yes.

Ms Laura Casey:

We have a team of four.

Róisín Shortall (Dublin North West, Social Democrats)
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Okay.

Ms Laura Casey:

I might just say on the expert panel that compliance tools were a key area that HIQA raised as being a deficiency its own armoury. The provisions that will be made in the legislation are important. I take the Deputy's point that it is narrow but it will be important. Another point on the expert panel is that while it made a number of recommendations that require legislative change, there are a number of other recommendations where implementation is ongoing. I have referenced the patient advocacy service remit being extended. The care experience survey is important. We spoke about earlier about data in the sector. Although data are a snapshot and a sample, they provide important insight.

Róisín Shortall (Dublin North West, Social Democrats)
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I apologise but I am nearly out of time. With regard to the recommendations from the expert group, is there a report status on each of the recommendations? Does the Department have this?

Ms Laura Casey:

Four progress reports have been published and the most recent was in June. We can send Deputy a copy.

Róisín Shortall (Dublin North West, Social Democrats)
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Okay.

Ms Laura Casey:

It is quite comprehensive and goes through the 86 recommendations.

Róisín Shortall (Dublin North West, Social Democrats)
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I thank Ms Casey. In its submissions, the Department of Children, Equality, Disability, Integration and Youth made two important observations. The first was that the legislation as it stands does not distinguish between major and minor non-compliance issues. This needs to be addressed. The second point is that the chief inspector is assigned powers without those powers also being assigned to an authorised officer. Again, this is important. Other officers apart from the chief inspector need to be involved. Is the Department addressing both of these points in the legislation? Does it accept these points made by the other Department?

Ms Laura Casey:

Yes, and to date we have had good engagement with the Department. With regard to the major and minor issues, we were applying the framework that exists at present and it does not differentiate. It is an important point that colleagues have raised.

Róisín Shortall (Dublin North West, Social Democrats)
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The Department is take on board of these points.

Ms Laura Casey:

We will engage with the Office of the Attorney General on both of these points in drafting the Bill.

Róisín Shortall (Dublin North West, Social Democrats)
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The Department is taking on board the principles that have been raised in both of these matters.

Ms Laura Casey:

We will discuss them with the Office of the Attorney General to get its views. Proportionality is a very important point and we will speak further on it.

Róisín Shortall (Dublin North West, Social Democrats)
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I do not know why Ms Casey would not give an absolute "Yes" but we will look at it in the Bill. I thank the witnesses.

David Cullinane (Waterford, Sinn Fein)
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I apologise for being late. I was travelling and got caught traffic. I welcome the witnesses. My first question is for Ms Casey. I also welcome the Bill. We had a lot of discussion about nursing homes during Covid. I met HIQA officials a number of times to discuss their understanding of the sector and, more importantly, how they see the State and the HSE understanding the nursing home sector. When HIQA came before the committee after the worst of Covid something its representatives said was quite stark. They stated their observation was that the HSE did not fully understand a sector it was substantially funding, that is, the private nursing home sector. I will not rehearse all the issues that happened during Covid because it is a separate piece of work that will have to be done. There was a lot of suffering in nursing homes. The issues of quality care, safeguarding, regulations and standards in nursing homes came to the fore and they need to be dealt with. HIQA said it had a sense that the HSE did not fully understand the private nursing home sector and the Bill does not directly deal with this. It permits a chief inspector to collect a wide range of data depending on what is specified by the Minister. What additional information does the Department believe would be helpful to build a better understanding in the HSE of what happens in private nursing homes and how they can be better supported?

Ms Laura Casey:

I thank the Deputy. The intention behind the reporting provisions in the legislation is to collect quite baseline data in some ways. There is very little data on the nursing home sector. This really does create impediments to being able to properly plan service delivery throughout the sector. The types of data we hope to collect are still under consideration. They will be set out in regulation. We have had engagement on the types of data with HIQA and the HSE and we also hope to engage with the sector. We hope it can be quite a user-friendly approach to collect some very basic data. We have information on nursing home support scheme clients but regarding the sector as a whole and being able to disaggregate on a regional basis, we have no profile of residents or staffing in nursing homes. We do not know a lot about bed occupancy levels or the types of beds. Some of it is what I term "baseline data" to help inform policymaking and projections.

David Cullinane (Waterford, Sinn Fein)
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Heads 4 and 17 provide that there will be an onus on the chief inspector to maintain a reporting mechanism to monitor it. Does HIQA need a new IT system to deal with this? Is the existing IT infrastructure sufficient? What additional capacity and resources would HIQA need to enable it to do this work?

Ms Laura Casey:

I thank the Deputy. He is absolutely right it will need a new IT system. HIQA is in the process of procuring a new IT system for designated centres more generally. It is an opportune time. We will be building this into the functionality. As the Deputy knows, HIQA already collects data from providers on statutory notifications. We hope it will be able to blend in with this in some ways. It will not be on the same-----

David Cullinane (Waterford, Sinn Fein)
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There is a new system.

Ms Laura Casey:

There is a new system being procured at present.

David Cullinane (Waterford, Sinn Fein)
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It would be important for this committee to engage on that as well because we have had lots of problems with systems that were not fit for purpose. The children’s disability network teams system, for example, is clearly not fit for purpose. It is not collecting the data and we cannot monitor the data. There were reports on the aggregate need of children that need to be submitted to the Minister annually but do not get submitted because the data is not there. Getting that part right and capturing data are important. I am happy, therefore, that there is a new IT system.

I have a quick question that I meant to ask earlier because Ms Casey talked about designated centres. Are we talking about all centres, including for people with disabilities, being covered under this?

Ms Laura Casey:

Yes.

David Cullinane (Waterford, Sinn Fein)
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That is good. I will speak about non-compliance notices, which I called for in a document I published on this whole area last year. I did so on the back of considerable engagement I had with the sector, HIQA, nursing homes and so on. While I get the importance of non-compliance notices, it is important that they do not become overly bureaucratic and that they work. When policy hits reality we find out whether these things work. A more graduated proportionality-based response is what we need. I gave the example in the past of inspections in workplaces. Compliance notices are issued by the Health and Safety Authority and these can vary in nature. We all know there are difficulties at times in nursing homes or any designated centre and the vast majority of them will do their best. The stick does not always have to be used. However, compliance notices are a very good way of getting improvements. I hope we will see a fundamental shift whereby this works with centres and gives them the tools to improve. I am not convinced that what I have seen in the Bill gets that right. I have a concern that we could end up with a model that is overly bureaucratic. In looking at this Bill and what is being proposed, was the Health and Safety Authority model considered? Have other models outside Ireland been looked at? Does Ms Casey share my concern in relation to non-compliance notices that if we have an excessive focus on those, we could end up with an overly bureaucratic system that creates a rigid structure? That would then become the issue, as opposed to actually dealing with the problem. Could a more graduated proportionality-based response be considered at this stage?

Ms Laura Casey:

The Deputy makes a very important point. It is absolutely our intention that this will be a usable system of tools that brings about improvement and compliance. That is the intention. As with any general scheme, we are setting out the broad provisions within it and we will engage with the Office of the Attorney General on making sure we get this right in the Bill. We welcome comments from the committee on that. It is absolutely the intention that it will not be bureaucratic and will be usable, both for HIQA and also for the providers and the entire-----

David Cullinane (Waterford, Sinn Fein)
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My understanding is HIQA will make its own submission. I imagine it will raise some of these issues in its submission. The point I am making is that it is good that we are having this engagement today. The purpose of this process is to improve the Bill. I imagine we are all trying to arrive at the same place. This is an area that we need to get right. While compliance notices can be an effective tool, a more graduated approach would be better. Let us see what HIQA recommends.

How will the chief inspector become aware of infringements?

Ms Laura Casey:

The inspectors will become aware as they do already. They use the term "lines of inquiry", so they get information from various sources, be it from concerns or complaints raised with them or from their regular inspection process if they see something while out on an inspection. There are a number of avenues by which-----

David Cullinane (Waterford, Sinn Fein)
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One of the problems that surfaced during Covid, and it is an area I feel very strongly about, was a lack of safeguarding laws and supports in nursing homes. It is my understanding that HIQA can only examine system failures. It does not have the power to initiate an inquiry into an individual incident in a nursing home. I understand no authority has that power. That needs to be looked at. I would argue that this Bill has to go hand in hand with improving safeguarding laws as well. I know there are commitments and promises of safeguarding legislation. I just want to put it to Ms Casey that this needs to be done. How does she envisage there being a link with safeguarding teams, social care teams and social workers in the context of what is being proposed here?

Ms Laura Casey:

I might ask my colleague, Ms Larthwell, to respond in a minute. On investigations, the Minister is hoping to bring an amendment to the Patient Safety (Notifiable Patient Safety Incidents) Bill later this month to give the chief inspector some discretionary powers as regards serious incidents within nursing homes. That will be a new power that fits in with this in some ways. It is in separate legislation but it is important to mention.

David Cullinane (Waterford, Sinn Fein)
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That is very important information for us. However, I always get nervous when we have something as fundamentally important as this coming in to a Bill through an amendment at a late stage. We have done pre-legislative scrutiny on the patient safety Bill and that may well be what we want but the committee needs to look at this. It is happening quite often that we have sections of Bills coming into existing Bills. We will do that with a couple of other Bills as well. We need to make sure we get these things right. That is very important.

I know from speaking to many families of people in nursing homes that there have been horrendous issues of abuse, although it is a tiny number. Overall, people in nursing homes get great care. However, when there cannot be power of initiation, that is a problem. It needs more fundamental thought, as opposed to just saying we will try to make an amendment through a different Bill and we might be able to provide more powers. That is a separate point. I think Ms Larthwell was going to come in.

Ms Fiona Larthwell:

Yes, I was just going to come in on the safeguarding policy. As the Deputy knows, we are at an advanced stage of development with the safeguarding policy. We have secured some funding next year for the roll-out of that policy. We expect to go to public consultation very shortly on it. We are at the last stages of kind of editorial clean-up, I would say, of the policy. We are hoping to make that ready for internal review within the Department before the end of the year.

HIQA is involved in that. We have a steering group for the policy, which is a cross-departmental steering group with important input from across the sector. HIQA has been very involved in that, as has the HSE. We have regard to standards that HIQA and the Mental Health Commission developed as well. It is important to us that we align with these and all of the changes that are being made through the Patient Safety (Notifiable Patient Safety Incidents) Bill as well to ensure we are not replicating them. The intention is, through that safeguarding policy, that for adults at risk of abuse, we will see risk assessments and ability to review incidents as well. The HSE obviously has a policy around that already for incidents that happen within the HSE.

David Cullinane (Waterford, Sinn Fein)
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My final question is an observation and a question. The Department of Children, Equality, Disability, Integration and Youth notes that the rights of entry are assigned to the chief inspector, which is fair enough. I can understand why. The chief inspector will be the authorised officer, while HIQA will not. It is important that this power is delegated. That is an omission in the Bill and it needs more thought and wider consideration. I ask that this is given substantial consideration. It is one of the major flaws in the Bill. We obviously want this Bill to progress but there are so many areas in this that we have to get right, and that is one of them. Perhaps the witnesses can respond to that point in the 30 seconds left.

Róisín Shortall (Dublin North West, Social Democrats)
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Ms Casey answered that.

David Cullinane (Waterford, Sinn Fein)
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My apologies.

Ms Laura Casey:

It is a good point the Deputy Cullinane has made. Deputy Shortall has made it also and we have received it from our colleagues in the Department of Children, Equality, Disability, Integration and Youth. We will looking at it in the Bill drafting.

I will make a final point in terms of HIQA and its views on all of this. It is important to mention that we worked very closely with HIQA on the development of the general scheme and we will continue to work with it during the Bill drafting. I know it will have its views but we have had very good engagement with it to date.

Neasa Hourigan (Dublin Central, Green Party)
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I welcome our guests. The progress reports were mentioned. We are on our fourth progress report at the moment. Is that correct?

Ms Laura Casey:

Yes.

Neasa Hourigan (Dublin Central, Green Party)
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Am I right in thinking that is the last progress report due from that panel?

Ms Laura Casey:

It is the final progress report of that period of implementation. There were a number of implementation structures set up to support the first 18 months of implementation and those implementation structures have now concluded their work.

It was the final report out of that implementation oversight team in June.

Neasa Hourigan (Dublin Central, Green Party)
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That group will not publish another report.

Ms Laura Casey:

There is no intention to do so.

Neasa Hourigan (Dublin Central, Green Party)
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Okay. Will a similar report be compiled?

Ms Laura Casey:

There were 86 recommendations in the expert panel report and some of them were quite specific to Covid-19. Some were directed at nursing home providers and others were directed at State actors. The more substantial medium- and longer-term measures have now been mainstreamed into various programmes of work, including this one.

Neasa Hourigan (Dublin Central, Green Party)
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The expert panel is comprised of people who are working in the industry. What will replace that level of engagement for the Department as it works through this?

Ms Laura Casey:

The expert panel concluded its work in 2020 and the oversight group for the implementation structures was made up of the Department, the HSE and HIQA.

Neasa Hourigan (Dublin Central, Green Party)
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Okay.

Ms Laura Casey:

We work as part of general working arrangements.

Neasa Hourigan (Dublin Central, Green Party)
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There is no replacement to provide engagement with the sector.

Ms Laura Casey:

There is no set group. We have numerous and various engagements with stakeholders. Many of the recommendations have turned into substantial programmes of work that have built-in engagement and consultation structures.

Neasa Hourigan (Dublin Central, Green Party)
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Those reports are helpful and Ms Casey is correct that they are broad in their scope. It was an expert panel, and a similar situation pertains for the Department in respect of progress reports. They are not legislators so they are not necessarily linking the various packages of work to legislation. It is very hard for me to glean from the report how many Bills are in the mix if we are to implement all of the recommendations. Has the Department created a matrix of how many Bills we are looking at to create reform?

Ms Laura Casey:

In respect of the recommendations that have legislative change attached to them, the majority will be encompassed by the amendments to the Act.

Neasa Hourigan (Dublin Central, Green Party)
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That is this Bill.

Ms Laura Casey:

That is so. There will also be amendments to the 2013 care and welfare regulations for the nursing home sector.

Neasa Hourigan (Dublin Central, Green Party)
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That is the 2013 Bill. We have also talked about safeguarding and there are a number of other-----

Ms Laura Casey:

The third piece I was going to mention is the patient safety Bill, which was seen as a timely vehicle to bring forward the important new provision for the chief inspector. That is why it is within the patient safety Bill. That is it.

Neasa Hourigan (Dublin Central, Green Party)
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Is there concern around the division of that? Was consideration ever given to an omnibus Bill to bring everything under the one banner?

Ms Laura Casey:

The problem is that many of the required changes to the regulations are through secondary legislation. It may not seem like it but most of it is within the primary Act, which is the 2007 Act, and the 2013 care and welfare regulations for the nursing home sector.

Neasa Hourigan (Dublin Central, Green Party)
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Would it be fair to say that we are giving a number of discretionary powers to inspectors under this Bill? Ms Casey has mentioned serious patient safety incidents and it seems we need something like that. I know that does not arise under this Bill. Is the removal of a designation for a particular nursing home at the discretion of the inspector?

Ms Laura Casey:

At present, that is what is within the Act.

Neasa Hourigan (Dublin Central, Green Party)
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Okay. Does this legislation involve a considerable expansion of an inspector's powers in terms of his or her discretionary remit?

Ms Laura Casey:

It is giving inspectors a different set of tools. The obligations on providers remain the same. The obligations are set out within the regulations and all this is doing is giving the regulator a broader or, as Deputy Cullinane described it, graduated set of tools to try to respond to breaches of regulations.

Neasa Hourigan (Dublin Central, Green Party)
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Let us take, for example, a case where the inspector can remove that designation. What is the benefit of that?

Ms Laura Casey:

It is ultimately to protect residents.

Neasa Hourigan (Dublin Central, Green Party)
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Okay.

Ms Laura Casey:

The powers of the regulator, as currently set out within the Act, mean it is within the gift and remit of the regulator to apply the tools and powers that have been given to it in the Act as it sees fit. HIQA would say it takes a risk-based approach that is proportionate to the type of compliance and non-compliance it is seeing.

Neasa Hourigan (Dublin Central, Green Party)
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We have talked a little about the current legislation as a hammer and perhaps too blunt an instrument. I am concerned that we are dealing with a relatively privatised industry and we are now introducing a level of discretion for inspectors. I have a concern about the oversight of those powers.

Ms Laura Casey:

I hope we are leaning into the framework that is already there. I do not know if "discretion" is the right word, but the regulator is empowered to use the tools that have been given to him or her as best he or she sees fit in his or her role as regulator. It is not changing the current approach. It is giving him or her a new set of tools to use while applying the same risk-based approach.

Neasa Hourigan (Dublin Central, Green Party)
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Ms Casey mentioned in her opening statement how non-registered facilities will be affected.

Ms Laura Casey:

I did.

Neasa Hourigan (Dublin Central, Green Party)
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Can we return to that? I would like to understand the position further. If a facility is registered, the stick, as opposed to the carrot, is that it can lose its registration if it is non-compliant. Will Ms Casey give an example of how that will work with non-registered facilities? I am trying to understand a number of issues. What would be the nature of the report? Could families report to an inspector about a non-registered facility? What evidence would be required to do so? Would it have to be a medical professional? What threshold of evidence would the inspector require? What would be the follow-up in a non-registered facility? How do we implement law for non-registered facilities? I am trying to understand and require more clarity around how that would work for non-registered facilities or even for facilities that are in the process of being registered.

Ms Laura Casey:

I thank the Deputy. It is currently an offence under the Act to operate as a designated centre without registration. That is already an offence. The power we are giving through this Act is to put it beyond legal doubt that an inspector can go into a facility that is not registered where the inspector believes the business of a designated centre is happening. It is to allow an inspector to enter and inspect, which can lead to various enforcement powers. The enforcement powers are already there.

Neasa Hourigan (Dublin Central, Green Party)
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How would an inspector come to believe that is happening? Is it a matter the Revenue would flag? Would it be associated with the financial turnover of a private person? Is it a matter of a report from a person who has placed a relative in what he or she considers a facility? How does this kick off?

Ms Laura Casey:

I understand the Deputy is asking where the information comes from. It can potentially come from a variety of sources. Information could come from an individual. HIQA has quite a lot of knowledge of the sector so it may come from the authority. It may come from the medical side or the HSE. There are various avenues by which an inspector may become aware that a centre is operating without registration.

Neasa Hourigan (Dublin Central, Green Party)
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If such a centre is identified, an inspector would knock on the door and enter. If he or she finds the facility is relatively compliant, does it become a criminal matter where a prosecution is brought immediately? Is the intention to put facilities on the road to registration? What is the goal within the legislation?

Ms Laura Casey:

My colleague will come in on that point.

Ms Nuala O'Reilly:

I thank the Deputy. It will be for the chief inspector to deem the appropriate enforcement action to be taken in that circumstance. Through the legislation, we are ensuring that an inspector can enter the premises to determine whether the designated centre should fall under the regulation within the Act. Inspectors will determine, using a risk-based approach, how best to proceed. They will consider whether to engage with the person carrying on the business and whether to escalate the enforcement action they take. It would not be for us to determine that here.

Neasa Hourigan (Dublin Central, Green Party)
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Will the definition of the designation be contained within this legislation or within the review of standards more broadly that will happen in the coming months?

Ms Nuala O'Reilly:

The definition of a "designated centre" is in the current Act and we do not envisage-----

Neasa Hourigan (Dublin Central, Green Party)
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The Department is not going to vary that.

Ms Nuala O'Reilly:

We do not intend to vary it.

Neasa Hourigan (Dublin Central, Green Party)
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The Department does not envisage that definition being reviewed significantly in the next round of-----

Ms Nuala O'Reilly:

We do not, or at least not in this round. In the wider review, there are a number of issues to be taken into consideration. We would not be in a position to determine today whether we would change the definition.

Neasa Hourigan (Dublin Central, Green Party)
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I thank the Chair.

Gino Kenny (Dublin Mid West, People Before Profit Alliance)
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I thank the officials for their opening statement. This is good legislation that I hope will make the nursing home environment safer for everybody. I wish to pick up Deputy Hourigan's point about an unregistered premises. Will the officials give us an example of an unregistered nursing home setting? Have they ever come across that? It would seem that if something is not registered alarm bells would ring straight away.

Ms Laura Casey:

It is not something that comes up much on the nursing home side. It is an issue HIQA brought up with us more in the context of disability centres, and it can happen with emergency placements that people are placed in centres that are not on the register. It is more on that side than the nursing home one, to be honest. This is really an avoidance of doubt measure. In legislation in other regulatory areas, it is a power generally given to regulators when they understand there are activities happening in a centre or business that is not registered. It is for the avoidance of doubt and to put it beyond legal question that the regulator will have this power. It is very similar to the powers of entry the authority has already for registered centres.

Gino Kenny (Dublin Mid West, People Before Profit Alliance)
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That is fair enough.

My next question is on the nursing home sector. It has evolved over the past 25 years. Back then, the vast majority of homes were publicly run but that is now reversed and the majority are privately-owned. Given the disparate nature of that sector, it is not surprising there is not much joined-up thinking and that, as Ms Casey said in her statement, it is very challenging to collect data. Do the officials agree that because of how the sector has evolved over recent decades, it is difficult to quantify registration and regulation of the sector? We saw during the pandemic it was hugely exposed with respect to resources, staffing levels and how it was dealt with. There are serious questions to be asked about the sector during the pandemic. It is harder to collect that information if the sector is so disparate in nature.

Ms Laura Casey:

It is a good point. We are dealing with 570-odd separate entities, many of which are in solo ownership, so there are a lot of different actors. What we are hoping to do, and the intention of the reporting mechanism, is to piggyback on systems that are already there. HIQA collects data across a number of areas and, in particular, at the minute it has a portal to collect data on an ongoing and regular basis on statutory notifications, incidents and things like that. I mentioned earlier there is a new IT system in development within HIQA for designated centres. We are hoping that new technology will be very user-friendly both for collating the data on the HIQA end but also for providers inputting the data, so that this will provide an efficient way of collecting data across the system. The Deputy's point is well made.

Gino Kenny (Dublin Mid West, People Before Profit Alliance)
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If there was more public ownership in this environment, there would be more joined-up thinking. One would think that. That was the weakness with what happened during the pandemic due, as I said, to the disparate nature of the nursing home sector.

Out of the 570 registered premises in the nursing home sector, how many residents are in full-time care? Do the officials have that number?

Ms Laura Casey:

There are approximately 30,000 beds. Ms Larthwell might know the number of residents.

Ms Fiona Larthwell:

There are approximately 22,700 residents currently in the NHSS who are long-term care residents. I think there are 31,000 beds. Some of those are short-term beds used for respite and so on. We do not have exact figures on how many people who are fully private residents who pay privately for their care without using the NHSS. Within the NHSS it is about 22,700 residents. Approximately 80% of them are in private facilities, as the Deputy identified.

Ms Laura Casey:

Even the fact we find it difficult to give the Deputy a hard number on that proves the point the provisions to develop a mechanism that can collect this baseline data across the sector would be useful to have a better understanding of it.

Gino Kenny (Dublin Mid West, People Before Profit Alliance)
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How co-operative is the nursing home sector, especially the privately-owned portion, with the Department or HIQA in the collection of this kind of data, which is beneficial for the two bodies?

Ms Laura Casey:

I can only speak to our engagement on the legislation. We have had a number of engagements with the representative bodies and have had good engagement with them. We hope to engage further, especially around this area of the reporting mechanism and the types of data we will collect. Much of the data we hope to include on the system is readily available within nursing homes. They will have it and, therefore, in terms of a burden on them, we hope piggybacking on what is collected within the sector and the new IT system HIQA is developing will be a user-friendly process for everyone concerned. We have had good engagement with the representative bodies to date.

Gino Kenny (Dublin Mid West, People Before Profit Alliance)
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I thank the Chair.

Seán Crowe (Dublin South West, Sinn Fein)
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Deputy Durkan does not seem to be available so I ask Deputy Colm Burke to come in.

Colm Burke (Cork North Central, Fine Gael)
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I thank the Chairman. Some concerns have been raised by Nursing Homes Ireland about the time period of 14 days. For argument's sake, if a notice was issued on 20 January, would the officials not accept that is far too short a period for people to respond in? I have seen this happen before with regulation where notices were issued during holiday time. People are looking for time to get all their responses in place and take action. What are the views of the officials on that?

Ms Laura Casey:

I thank the Deputy. In developing the proposals we are conscious of proportionality and getting the balance right. The intention of the reduction in timelines is very much around providing for a quicker sanction process with residents in mind and ensuring wherever the breach in compliance is that it is rectified quickly to protect residents. Again, the areas where we are proposing this reduction in timelines are quite serious sanctions, either for applying a condition to registration or cancelling a registration, so a certain bar will have been met to even engage in this process. I also mentioned earlier that HIQA does not just embark on a process out of nowhere. There will generally have been lengthy engagements with the registered provider around this particular issue.

Colm Burke (Cork North Central, Fine Gael)
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However, the courts are not sitting at certain times. They do not sit in August, so what happens if a 14-day notice is served on 30 July?

Ms Laura Casey:

I take the Deputy's point. Our intention is to provide for a quicker process. When the timeline for representations and the timeline for appeal are added together, that amounts to 56 days, which is quite lengthy, but we will take advice-----

Colm Burke (Cork North Central, Fine Gael)
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Will the Department come to a compromise on this issue and agree a period in between of, say, 21 days?

Ms Laura Casey:

It is something we will engage with the Office of the Attorney General on as part of the Bill drafting to get advice on the workability and proportionality of the proposals.

Colm Burke (Cork North Central, Fine Gael)
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Those are the two time periods I am talking about. The courts do not sit in August, although they may sit for serious criminal matters. The District Court sits one or two days a week, depending on the area of the country. During the Christmas period the courts also do not really sit, except for criminal matters. Therefore, you would run into problems with the 14 days' notice. That is one of the issues.

The second issue I want to touch on is the proposed section 73A, which refers to "reasonable grounds for believing that a person is, at any premises, carrying on the business of a designated centre in a premises that is not registered". An awful lot of religious communities now have an ageing population. Instead of having five or six members of the religious order in different locations, a lot of them tend to bring them all into one location in Dublin, Cork, Limerick, Galway, Waterford or wherever. Will that section 73A give power to an inspector to go into such a facility? Is that the intention? A concern has been raised that an inspector could interpret his powers as entitling him to go into such a facility.

Ms Laura Casey:

Under the current Act, those types of facilities are excluded. There is no intention to change that within these provisions.

Colm Burke (Cork North Central, Fine Gael)
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Someone could decide to interpret section 73A to that effect because of the way it is drafted.

Ms Laura Casey:

The intention is that it will not have that effect. That is something we can look at in the Bill drafting process. The intention is not to change the exemption that is there already.

Colm Burke (Cork North Central, Fine Gael)
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In a large number of these facilities - I am talking about more than 20 - the people are all over 70 but they have a structure in place as regards the care being provided. Looking at the drafting of the section, it would appear to me to give the power to an inspector to go into such a facility. Will that be looked at? Concerns are being raised about it.

This legislation applies to both HSE facilities and private facilities. Then there are certain facilities that come under the Mental Health Commission. I previously gave an example at this committee where there were 26 residents in a mental health facility, or a geriatric psychiatric facility, and nine of them died within two weeks because the facilities just were not adequate. I am concerned. Am I correct that an inspector does not have the power to go into such a facility, because it comes in under the Mental Health Commission?

Ms Laura Casey:

It is only the designated centres that are set out within the Health Act.

Colm Burke (Cork North Central, Fine Gael)
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Does this not make it a duplicate system? The Mental Health Commission is supposed to be doing its job in relation to these facilities, but when Covid came we found an awful lot of the mental health facilities were not at all up to scratch. There was one example where there were not even changing facilities for staff coming on duty, which would be a basic requirement in any medical facility. Yet this facility was under the Mental Health Commission. Therefore, there will be some duplication in that we are giving more power to the inspectorate around private nursing homes and public nursing homes or homes that are under the HSE's jurisdiction but we are excluding facilities that are extremely important for the residents in them. It was proved during Covid that there were huge deficiencies in that area. The Mental Health Commission is now issuing various warnings to facilities right across the country. Would we be better off having one really well structured inspectorate system, whether for mental health facilities or nursing homes, both public and private?

Ms Laura Casey:

It is an interesting point. It is beyond today's discussion around the regulatory framework but I take the points the Deputy is raising. The Deputy is correct that there are two separate regulators at present.

Colm Burke (Cork North Central, Fine Gael)
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From the time the legislation is in place, is it envisaged that additional people will be required to do this work?

Ms Laura Casey:

We do not think so for the compliance measures. HIQA has already been resourced quite significantly over the last couple of years with additional inspectors. We do not see the powers we are giving it as increasing the workload substantially per se. However, it will be the case with regard to the reporting mechanism, given the data collection and analysis. We will be working with HIQA on that. It is probably a small number but there will likely be a resource requirement from that piece of the legislation.

Colm Burke (Cork North Central, Fine Gael)
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I am going slightly off the point here. This question relates to the private and public facilities under the HSE's jurisdiction. There is huge variation in funding support. Is there not a need for the Department to look at that whole area? If we want really good care facilities to be provided, there has to be adequate funding in place, whether it is public or private. Should the Department now look at that whole funding mechanism, in view of the cost? For instance, in any nursing home or residential centre, a simple thing like the cost of heating has gone up by 200% or 300%, while funding has not been adjusted accordingly. Does the Department now not need to look at that whole area as well? We want to make sure we have the best possible facilities, but in order to provide them adequate funding has to be in place as well.

Ms Laura Casey:

I might ask my colleague to come in on that.

Ms Fiona Larthwell:

The Deputy has raised an important point about those kinds of costs and funding pressures that come on, which are perhaps unanticipated. When Covid happened, we put in place the temporary assistance payment scheme, TAPS, which the committee will be aware of. That has provided about €145 million to private and voluntary nursing homes to date. In the last couple of weeks, we launched the temporary inflation payment scheme, TIPS, which is aimed at assisting private and voluntary nursing homes with the temporary inflation costs that we are going to see over this winter. That will enable them to claim up to 75% of their energy increases up to €5,250 per month, backdated to July, in order to assist with those particular costs. The NTPF model requires that contracts are set for any time. It could be a year or could be three years. Within that, it is not terribly responsive to pressures. We are looking at ways of trying to be responsive when these really unusual international events are happening.

The other point is that the public and private cost of care differential was examined in the value for money report that was issued last year, which set out nine recommendations. We are working on those at the moment. We would be very concerned about ensuring efficiency in the public cost of care and that private facilities are funded to a reasonable level in order for them to deliver properly regulated care. That is our main focus.

Colm Burke (Cork North Central, Fine Gael)
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We need to make sure there is full compliance with regulation, but for that to happen we need to make sure there is adequate funding. We can easily fall into the problem where a private facility suddenly finds itself with its back to the wall and shortcuts can be taken. For instance, a number of facilities have closed down in the last eight to ten months because they felt they could no longer provide the standard of care.

It is important that the standard of care should always be the priority. They felt that they could not longer do that on the basis of the support that they were getting.

Ms Fiona Larthwell:

It is something that we are very conscious of. I think 17 nursing homes have closed in the year to date. That is a high number for any period outside Covid. It is something that we are keeping a close eye on.

Bernard Durkan (Kildare North, Fine Gael)
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I welcome the witnesses and thank them for their advice. I am a bit concerned about this legislation. Can we be certain that the proposals before us are adequate to deal with situations that have been brought to our attention in the past, whether in respect of older people, people with disabilities or other vulnerable people? Can we be assured that it is adequate to safeguard their interests and meet requirements of existing legislation, as well as this legislation, now and into the future? We should keep in mind the number of situations that have been brought to our attention over the past number of years, for one reason or another, that did not reflect well on the system. Incidentally, there are countless nursing homes and institutions all over the country that have done well, operate to a very high standard and continue to do so. However, we need to know, as Deputy Burke said, that adequate resourcing is made available to ensure that the highest standards prevail. Are the officials happy that this is the case?

Ms Laura Casey:

That is one element of a reform programme to get to the place to which the Deputy referred. The intention is focused on giving the regulator more tools to bring about compliance and service improvement within the sector. It is one of a number of reforms being put in place at the moment that will improve standards across the sector. I spoke to some of them earlier. The extension of the patient advocacy service to private nursing homes is very important. That was introduced in November. We have looked at complaints policies and we are increasing the requirements around those, within the regulations. My colleague spoke about safeguarding. We are also looking at staffing and the skill mix within the sector. There is a broad reform programme, which is very much driven by the recommendations from the expert panel. Collectively, they can make a real difference in terms of standards across the system.

Bernard Durkan (Kildare North, Fine Gael)
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I should mention that I have been in attendance, from the outset, from my office. Reference was made earlier to a number of relevant Ministers. Who are they? Why do we have to have a number of them? How many Ministers might be regarded as designated Ministers under the proposals?

Ms Laura Casey:

Just two at the moment, namely, the Minister of Health in respect of the nursing home sector and the Minister for Children, Equality, Disability, Integration and Youth in respect of the designated centres for children. As the Deputy will be aware, responsibility for disability services is due to transfer to the Minister for Children, Equality, Disability, Integration and Youth. At the moment, responsibility lies with the Minister for Health, but it will transfer across. The designated centres that are regulated within the legislation fall under two Departments and two Ministers.

Bernard Durkan (Kildare North, Fine Gael)
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Would it not be better if one Minister was designated as being responsible for the overall application of the regulations?

Ms Laura Casey:

The responsibilities lie with different Ministries at present, and the legislation reflects that. The provisions that we are proposing also need to reflect that.

Bernard Durkan (Kildare North, Fine Gael)
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Well, whatever was reflected in the past was not good enough. There were massive gaping chasms in the application of standards and the protection of people deemed to be vulnerable, and there was difficulty in producing evidence and reports. We are still waiting on reports on some of the institutions. Can we be certain that a single standard applies right throughout the system, in respect of both public and private institutions, in order that there might be continuity of responsibility, continuity of service and some kind of standardisation of the service that patients might expect?

Ms Laura Casey:

While the areas of policy responsibility lie with different Ministers, the benefit is that there is one regulator in HIQA and the chief inspector. That is where the standards derive from. I think that provides for the level of continuity the Deputy is speaking to. Responsibility for the standard setting and the inspection against the regulations and standards set lies with one body.

Bernard Durkan (Kildare North, Fine Gael)
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There have been instances of abuses in institutions throughout the country. We have seem almost to have difficulty in identifying them in early days, obtaining a report, publishing a report and taking action to prevent any repetition. Does this legislation meet that challenge?

Ms Laura Casey:

I hope so, taking it in the context of the broader reform programme and the various different pieces of work that are ongoing across the sector. Again, some of the reforms that are very much focused on the residents and giving the residents more of a voice are important. I have mentioned the patient advocacy service and the review of complaints policies. The recent publication of the findings from the nursing home care experience survey is an innovative development. It gives us insight into the views and concerns of residents themselves and their families. That is a survey that will be undertaken on a periodic basis. It can be used to give us a real sense of what is happening within the sector. There are a number of programmes of work and new reforms, some of which are in place and others that are being rolled out, that will make a discernible difference across the sector.

Bernard Durkan (Kildare North, Fine Gael)
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I wonder why it has not been found possible to have a system whereby the inspection system is first to identify any deficiencies and to bring those to the attention of the respective authorities and management in private nursing homes and public institutions in order that efforts might be made to correct any deficiencies that might exist. Can we expect that in the future?

Ms Laura Casey:

The inspection process is really important. As we discussed earlier, the regulator can become aware of issues through a number of sources. The other point I would make is that the resources within HIQA, and in particular within the inspectorate, have been increased over the past few years. The number of staff has grown from 22 to 35. There has been quite a substantial increase in the resource available to the chief inspector for inspections across the sector. That will help with the level of oversight that HIQA can bring.

Bernard Durkan (Kildare North, Fine Gael)
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What is the rate of unsolicited inspections, where there was no public outcry first, the inspection was carried out, and deficiencies were identified by the inspectorate and brought to the attention of the respective authorities, as opposed to the number of situations where inefficiencies or otherwise were brought to their attention as a result of there being a particular problem in the institutions concerned?

Ms Laura Casey:

I do not have that data to hand. We would need to get that data from HIQA. Previously, on average, a centre would have been inspected once every 18 months. HIQA has stated that ideally, on average, it would like to inspect a centre once a year. It is close to achieving that with the additional resource. I think this year already, it has done up on 500 inspections. As the Deputy mentioned, those inspections can differ.

They can be part of routine registration inspections that can arise for particular reasons, if issues have been raised. They also do thematic-type inspections which are more proactive in looking at particular areas. We can safely say the level of inspection has increased in recent years with the additional resources that have been given to HIQA.

Bernard Durkan (Kildare North, Fine Gael)
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Are we happy about the extent to which regulations and legislation lay down the requirements of the various institutions in the present climate? How does it tie in with the proposed legislation? Is the legislation sufficient to identify such situations as have been brought to our attention in the past as a result of unfortunate happenings?

Ms Laura Casey:

Is the Deputy's question on whether the powers HIQA have at present are sufficient?

Bernard Durkan (Kildare North, Fine Gael)
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Yes, with regard to the powers the inspectorate, regulator or whoever. We need to get to a situation where we do not wake up some morning and find there is an issue in an institution that has been going on for a considerable time, has been reported and no action has been taken. I can think of at least one such situation off the top of my head. We know this will be averted by virtue of this legislation.

Ms Laura Casey:

I suppose we cannot say anything for definite. The additional resource that is being put in will be helpful with regard to HIQA's capacity to oversee the sector. The other point to make is that the vast majority of inspections are unannounced. I do not have up-to-date figures, but it is well over 90% of inspections, which is important with regard to the type of inspections and the approach taken. That is an important point. With regard to the provisions within this Bill, the intention is to try to give HIQA tools to work with the sector to improve compliance. At the heart of all of that is to improve standards within these centres for the benefit of residents. The powers we propose to give HIQA are important more generally with regard to improving standards across the system.

Bernard Durkan (Kildare North, Fine Gael)
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The Chair or another one of my colleagues made the point earlier on whether it was a good policy to have the legislation as it is, hanging on to other legislation, or whether this was sufficiently serious to require specific legislation or an amendment to a major Bill.

Ms Laura Casey:

Is the Deputy's point with regard to the general scheme before us today?

Bernard Durkan (Kildare North, Fine Gael)
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It is.

Ms Laura Casey:

This will be a standalone amending Bill to the health Act 2007. The intention at present is that it will be so.

Bernard Durkan (Kildare North, Fine Gael)
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Will the name of the Bill sufficiently advise the observer as to what the Bill is supposed to do?

Ms Laura Casey:

It probably does not give a lot away. I will agree with the Deputy there. We will engage with the Attorney General when the Bill has been published.

Bernard Durkan (Kildare North, Fine Gael)
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Will we ask that it be a little bit more specific? The intention to have it vague, as it would appear to be, is not good for the quality of the service or its reputation.

Ms Laura Casey:

We will take the Deputy's point away.

Seán Crowe (Dublin South West, Sinn Fein)
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We are talking about the most vulnerable, that is, children, the elderly and disabled people. I suggest that be covered.

Frances Black (Independent)
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I apologise. I have only just gotten into Leinster House and I think some of the questions I had have already been covered. I will follow up on one or two. I thank our witnesses for coming in this morning. The purpose of this Bill in driving service improvement for the service user is very much appreciated. I have no doubt about it, considering what has been going on in recent years. In the Department's opening statement, it was mentioned that once issues are identified by the chief inspector, proportionate penalties must be imposed. Will additional supports or resources be provided to ensure that any adverse impacts on residents are addressed promptly? I ask the witnesses to forgive me if they have already answered that question.

Ms Laura Casey:

There is already a range of offences within the Act which allow for prosecution with regard to breach of various sections. I would say and I think HIQA would say the same in that they really are a last resort. Given the nature of the sector we are dealing with and that the facilities are peoples' homes, taking those more extreme powers, such as cancelling registration, applying certain conditions or moving into prosecution on offences are really taken as a last resort. With areas of enforcement, there always has to be an accompanying regime of offences and penalties. However, the practice to date will continue with regard to their being a last resort.

Frances Black (Independent)
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My next point is on adult safeguarding. I am very glad adult safeguarding has come up this morning. It is a considerably important issue and, unfortunately, in recent years it has received insufficient attention. There is considerable urgency to it. I know my colleague, former Senator, Colette Kelleher - is she still there or have we lost her?

Seán Crowe (Dublin South West, Sinn Fein)
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The Senator is still there.

Frances Black (Independent)
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I apologise. Something came up on my computer. Ms Kelleher introduced legislation in 2017 which unfortunately stalled on Committee Stage because the Government said it would undertake the work necessary to produce its own legislation. It seems that work is under way but do the witnesses have any idea of the timeline for when the heads of Bill will be published? That would be very helpful.

Ms Fiona Larthwell:

I can address that question. We are finalising the policy at present. There is a sequencing issue. We have to have the policy first because we were tasked by a Government decision to develop a national policy for the health and social care sector with regard to adults at risk of abuse. Our intention is to go to public consultation as soon as possible. It had been to have been done by the end of this year but we will probably see it very early next year at this stage. Once that is done, we have to have a costing study and bring that as a package to Government for approval. At that point, we will be able to start drafting any necessary underpinning legislation. However, the very important thing for us in the first instance is to get the policy finished, out there, active and operational. Thus, we have secured €4 million not just to help expand safeguarding services across the HSE to echo the Sláintecare requirements in the regional health authorities, but to start to roll out the new structures we envisaged under the policy.

Frances Black (Independent)
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Is the Law Reform Commission working on the policy? I am aware it had started the work in early spring and said it would have some of the work in by the summer. I feel there is a bit of a delay on it. Does Ms Larthwell have any information on that?

Ms Fiona Larthwell:

I do not have an up-to-date timeline on the Law Reform Commission work. It is extremely important work to look at a regulatory framework for adult safeguarding across society, not just in the health and social care sectors. We anticipate we will be in advance of that but I do not have a timeline. We will ask the question and get back to the Senator.

Frances Black (Independent)
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That would be very helpful. I would appreciate that.

Seán Crowe (Dublin South West, Sinn Fein)
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The Bill covers the most vulnerable people in society, that is, children, people with disabilities and the elderly. One of the big challenges which is going on in accident and emergency departments at present, is that relatives have no access. Many of the hospitals are locked down because of the pandemic. That is a key piece of information.

I imagine that the majority of complaints come from relatives or someone who visited the home and so on. I am sure that we can all recall the stark images during the pandemic of people outside of nursing homes waving at their elderly loved ones inside. Information and communication are key in this area. When people visit their loved ones they can see whether their loved one has lost weight, the place is clean and other things are happening. I cite that to stress the importance of visits and concerns arise when people cannot visit. Unfortunately, in many cases, and particularly the cohort of people that we are talking about, the residents may be unable to articulate their situation so visits are vitally important.

Ms Casey mentioned that the legislation provides "the chief inspector with a means to react more quickly and effectively to urgent issues". I ask her to explain how that will work. Members have asked questions on inspectors and inspections. Will more inspectors be recruited? There is clearly a need for more inspections and there was agreement on that after what happened previously. Some people who worked in these places, particularly in nursing homes, residents and their families felt abandoned and we have heard stories about staff having to wear painter suits because there was a lack of PPE. I ask my questions not just for the sake of the committee but because I am conscious that people are watching proceedings at home who are equally concerned about how this provision will be developed.

Ms Laura Casey:

On the Chair's reflections on visiting, the HSE guidelines are quite clear that unless there are particular circumstances, visits to nursing homes should be allowed. Visits are important for all of the reasons he outlined and for the well-being of residents in particular. I am sure that we all know the importance of meeting and seeing family and friends. I reiterate that unless there is a particular incident within a nursing home, visiting should not be restricted.

On providing the chief inspector with a power in the form of urgent orders to deal more quickly with issues, in those circumstances it is "where it is believed that there is an immediate, material, adverse impact on the health, welfare, care or safety of a resident". Currently, under section 59 of the Act, HIQA has quite strong powers but the bar is quite high and is threat to life or a serious risk to health. For the Bill, it still needs to be a serious incident but the bar is lower and it provides for quick action, through the courts, to bring a provider back into compliance.

The Chair made a further point about the level of inspectors. As I mentioned earlier, there has been quite an increase in the number of inspectors not just on the nursing homes side within HIQA but broadly across HIQA. Approximately €5 million in additional funding was provided over the past number of years to increase staff across a number of areas and the inspectorate is one of them. Those resources are making a difference. They have increased the rate of inspection and we hope to see that continue in the coming years.

Seán Crowe (Dublin South West, Sinn Fein)
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On finding suitable placements, it has been stated that designated facilities come under the Health Act. There has not really been a focus on this in the discussion. There are big challenges when it comes to finding places for people, in particular for children and those in the disability sector. That is the view of many of the families who have tried finding a place for their children. Everything, including holiday homes, has been used. In terms of places in designated facilities, does the Bill cover a child who is put in a holiday home? Currently, the Act does not cover that. People are trying to be imaginative and provide separate spaces, etc. The Health Act does not necessarily cover "designated" facilities. The children we are dealing with, under this Bill, will be put in various placements. Is there a gap in the legislation?

Ms Laura Casey:

As the Chair said, the Act is specific about what a designated centre is and is not. Somebody used the phrase "at the discretion of the chief inspector". It is within the remit of the chief inspector to determine when she thinks the business of a designated centre is being practised within a facility and if that is not registered, the powers in this Bill such as the power of entry those facilities is relevant. It is only when the chief inspector is satisfied that the business of a designated centre is happening within a particular facility. I do not know if I have answered the question.

Seán Crowe (Dublin South West, Sinn Fein)
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I am still confused. Let us say a holiday home has been used quite a number of times for children with special needs because there is nowhere else to put them. If the holiday home is used more than once, does that make it a designated facility? I do not ask my question in an effort to catch out officials.

Ms Laura Casey:

I understand.

Seán Crowe (Dublin South West, Sinn Fein)
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I asked my question on behalf of families who are in that situation and seek supports, etc. One would like to think these children would be safe in such situations. There must be follow-up in terms of inspections and everything else.

Ms Laura Casey:

I do not think I can be definitive in my answer. HIQA has published, I think it was during the summer, a document that tried to set out what the authority considers is and is not a designated centre. I do not have the document with me. However, I understand that the document, although I cannot recall it properly, dealt with holiday homes or respite-type facilities, which in part met some of the confusion or concerns that arose in this area. We can supply the document to the committee.

Seán Crowe (Dublin South West, Sinn Fein)
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Deputy Cullinane covered issues concerning head 15 earlier. Ms Casey stated: "Head 15 will introduce a number of offences carrying a proportionate range of targeted penalties to ensure the effective operation of these new tools", which are advance notices, non-compliance notices and urgent orders. What happens if there is no response? Are the penalties proportionate bearing in mind that people may have died or may die in the future?

Ms Laura Casey:

Our intention was to align and fit in with the existing legal framework. On the proportionality of the offences and the powers more broadly, it is something on which we will seek further advice from the Attorney General when drafting the Bill.

Seán Crowe (Dublin South West, Sinn Fein)
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Reference was made to the staffing and skills mix. Is there a focus on workforce planning in the Bill? It is a stretch but a major infection vector that was identified was the deployment of agency staff across multiple venues during the pandemic, which meant Covid-19 spread through nursing homes.

Ms Laura Casey:

On the staffing and skills mix framework, phase 3 of that is specifically around nursing homes. It is still in the research and testing phase of the framework. The intention is to get a better indication of what are appropriate levels of staffing and an appropriate skills mix within the sector. The research is well under way and involves a research team from UCC.

It will provide a clear idea of what the needs are within the sector. The policy and workforce planning piece will then come after that.

Seán Crowe (Dublin South West, Sinn Fein)
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The other issue that came up during the debate, which may be impacted by the legislation, is the transfer of elderly patients without proper testing. This was another serious problem. In some cases, they were taken out of nursing home or, vice versa, they were transferred from hospital back to nursing home without proper testing. Many of them were infected. Is that covered under the legislation? Again, it was one of the big issues that was signalled during the pandemic as a weakness within the system.

Ms Laura Casey:

Not within the legislative system. The pandemic presented unique challenges and placed a focus on the need for system-level and central-level guidance, which I think is the point the Chair made. There was much work done during the pandemic on the Health Protection Surveillance Centre, HPSC, and work on various different arms of the HSE in terms of the provision of care guidance based on best evidence and evolving evidence at the time. However, that is not something that is provided for within the system.

Seán Crowe (Dublin South West, Sinn Fein)
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Another area that, again, came up when we talked about weakness was the new integrated community support teams. The importance is that there would be someone available in nursing homes in each area. Is that a key element of the support around this Bill?

Ms Laura Casey:

Absolutely. Again, it was a strong focus within the expert panel report. The Covid response teams were put in place quite quickly in 2020. They remain in place and are supporting the sector during winter this year again. At the time, they were set up on kind of a temporary footing. There is funding now and our intention is to transfer them across into permanent support teams in each community healthcare organisation, CHO, area within the HSE to provide continuing supports and, I think it came up earlier, to also drive that better connectedness of the nursing home system in general within the health and social care system.

Another development that is important is the development of ICPOP teams, the specialist teams for older persons, within the broader community enhanced programme. They are being set up now. There are 30 to be set up across the country and there are 20 or so fully resourced geriatrician-led teams. Again, they are to provide expert specialist resources – medical and across the full spectrum of multidisciplinary resources – to older people, which will include people residing within nursing homes also.

Seán Crowe (Dublin South West, Sinn Fein)
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I appreciate that our witnesses came in this morning. It was very helpful and there was good debate. As a committee, we will have to decide how we will progress the Bill. We are still waiting on different sectors. HIQA is outstanding and we will probably have representatives in for a meeting on this. I thank Ms Casey and her colleagues from the Department for assisting the committee in this matter. The committee will look to further consider it. The meeting is now adjourned until our meeting in private session at 4 p.m. on Tuesday, 28 November.