Michael D Higgins (Galway West, Labour)

I welcome the opportunity of saying a few words on the Bill. Any legislation that addresses the issue of care for the elderly, particularly those who are dependent in any way, is welcome. However, when one considers what is required I must agree with Deputies who have suggested that the Bill takes only a small step.

In assessing what is required it is important to define the perspective from which one departs. It is clear the approach taken in the drafting of this legislation is not rights based because the Bill does not incorporate any principle of universalism. I will spend a moment clarifying what is meant by universalism. Universal provision arises from a view of citizenship which is based on the idea that certain rights are granted to citizens at all ages and that the rights one might expect in citizenship at a certain age, particularly in old age, are specified. In some respects, one of the legal confusion about nursing home care arises in this area.

This Government and other Governments have rescued themselves from the requirements of the Constitution by suggesting that the existence of a scheme of nursing home bed provision, for example, for those with medical cards, satisfies the constitutional obligation to citizens. It is only a matter of time before this assumption is tested and it should be correctly found to be unconstitutional. In a previous case it was found that when a bed in the public system is not available to a person, for example, a medical card holder who is entitled to a bed in a nursing home, he or she is entitled to require that the relevant body — at that time this was the former health boards — provide a bed in a private nursing home. This court ruling is probably one of the most clouded of all decisions on administrative policy because some of those who administer the system would like to believe it does not exist and no attempt has been made either to draw attention to it or legislate for its extension and implications.

To move from this legal constitutional point to another obvious point related to health policy, it has not been to the benefit of the elderly, their spokespersons or public representatives that accountability for their care and responsibility for the legislation that addresses their care has been transferred from the Houses of the Oireachtas to the Health Service Executive. This move has made it very difficulty to obtain specific answers.

To make my position perfectly clear, my first point is that a rights-based approach to the provision of care for the elderly is the only one which will answer current needs. My second point is that the proposal to allow private hospitals to develop on public hospital grounds is outrageous, given that voluntary groups, including active retirement associations and other voluntary associations dealing with the care of the elderly, have for years sought opportunities to have facilities provided, including on public hospital grounds, in which care of the elderly would be available.

In another life I was a sociologist by training. About 35 or 40 years ago, as part of my only experience in the United States, I worked with the late Professor John T. Liell of Indiana University, the author of a book entitled Links to Life which dealt with care of the elderly. An advanced study in its time, the book suggested that maximising the number of links people have to community allows them to lead longer and more full and active lives. This approach is clearly the way forward.

Public nursing homes, by reason of their responsibility to the public, provide greater assurance about standards. The day facilities available in some of them include laundry and day care facilities and opportunities for those outside who wish to maintain links to residents, in other words, they offer a full range of activities.

The argument in all our life cycles is that we begin with few links to life but acquire many more as we move from childhood into family life and the world of work. Thereafter, the curve shifts downwards and we depart, as it were, linkless just as we arrived. The main point, however, is that the more links that are available, the better. All this means that there is immense benefit in enabling people to spend as much of their life as possible in their own homes, which are positive and reassuring.

To be fair, I note this principle is partially acknowledged in the proportion of funding allocated for the forthcoming year. It is singularly misleading to the public, however, to give gross figures in all discussions on health matters. While it is politically attractive to be able to indicate that the gross figure for the current or forthcoming year has increased substantially when compared with a few years previously, what matters is the amount of time available to provide care, the degree to which services will be extended and the quality of care available to the older person. It is not interesting, apart from being satisfactory politically, to project what will be the gross expenditure on services and care for the elderly either this year or next.

People want to know what has happened to the home help service; whether they will have more or less access to services and whether more or less hours will be available; whether a particular service is better integrated in the public health service and whether the amount of time available to public health nurses to care for elderly people has increased.

It is appalling in the city I represent that a woman who relies on dialysis treatment will have her taxi service to Merlin Park Hospital discontinued because the HSE has taken the extraordinary position that, with demand increasing, it must achieve economies by stopping its taxi service for dialysis patients. I became a Member of this House more than 20 years ago. At one time, if this had happened, I would be able to ask a question of the Minister for Health and Children and get an answer but I cannot get an answer now. Therefore, I began the laborious process of writing letters to the western section of the HSE and waiting for a reply. I was told the same information as was contained in the Minister of State's speech on this matter. The process is neither transparent nor accountable. It is appalling to suggest we should cut off a service like this in a country with such high income levels, however they are measured.

It is disappointing the promised public nursing home beds have not arrived. There is no justification for that. I invite the public to express their outrage as strongly as they can if a site notice for a private hospital is erected on the grounds of a public hospital, while at the same time these public beds have not been provided. It is an incredible indictment of the policy decision that simultaneously stands over the theft of public assets and the neglect of the elderly.

The failure to legislate properly for the inspectorate is equally unacceptable. From time to time, much has been said about the public and private health sectors. It is to the great credit of the public health system that it is accountable. It has built-in norms of accountability concerning new facilities that have been provided. I am thinking, for example, about one such facility in Kildare. The regime that operates in that public nursing home facility provides an excellent model for medical care and the overall delivery of facilities for older people, including chiropody and hairdressing. I cannot understand, however, why we are not assuring the same standard across the system. It is one thing to create through the Finance Act incredible advantages for private nursing home developments but if there is to be a net transfer — which there was of approximately €56 million — taxpayers are entitled to ask that an inspectorate will ensure private services will be of the same standard as those achieved in the public sector. It is deeply disappointing, however, that that is not so.

While I am critical of certain aspects of the Bill, I wish to translate such criticisms into positive proposals. Part of my criticism concerns the absence of a policy based on rights of the elderly, citizenship and the principle of universalism. Means testing is costly, fallible and administratively difficult to deliver. There are two forms of qualification in the Bill, one of which concerns dependency. I read the Bill with a certain amount of concern because the qualification is defined in terms of physical dependency. I refer to Part 2, section 7B(2)(a) on page 6, which states:

the applicant's ability to carry out the activities of daily living, including the applicant's—

(i) degree of mobility,

(ii) ability to dress unaided,

(iii) ability to feed unaided,

(iv) ability to communicate,

(v) extent of orientation,

(vi) cognitive ability,

(vii) ability to bathe unaided, and

(viii) degree of continence.

While I do not have an argument with that list, there are other items one could add to it.

Part 2, section 7B(2)(b) refers to "the family and community support available to the applicant". In that regard, there is a straight, hard fact concerning Ireland, which is how willing families are to look after the elderly. A cultural change has occurred here, which is not necessarily good, in that there has been a decline in the willingness, ability or amount of time a family has to be able to look after an elderly relative. We should be careful about this. One can answer the question by looking at the number of people aged over 60 or 65 in the labour force. Increasingly, one finds the economy is gobbling up all the available social hours in a person's lifetime. The Tánaiste has lectured all those aged under 70 that they are in danger of betraying the economy unless they last until 75 and drop dead. Given the nature of the economy and our views on social time and working time, fewer people will be left to take care of the elderly. If that is to be the case, let us hear about the State's responsibilities to the elderly in rights-based legislation.

The second set of qualifications concerns income. Section 7B also refers to the applicant's principal residence for purposes of valuation, unless a person has disposed of it "within the five years immediately preceding the date on which the application is made". Exclusions apply when the applicant's principal residence is continuously occupied by the applicant's spouse, a child under 21 years of age, or a child in full-time education, and so on. The valuation is not only made on the home but also on its contents. For example, if one inherited a painting or other valuables they must be listed also for purposes of valuation. This valuation system is against everything we know about the social orientation of old people and the importance of that which is proximate and valuable to them. We must take the family home out of consideration when assessing attributable income.

We also need to examine seriously the subvention system and make it available on the basis of equality to a person relying on any form of social welfare or even on the minimum wage. If a person qualifies on the basis of disability and income level, they are then categorised on the basis of extreme, medium or simple dependence. How can the weekly allocation of approximately €195 enable a person to enter a private nursing home in any part of the country, even though they are entitled to do so under the terms of this legislation? A person may reach the maximum dependency and qualify under the income criteria but they are still limited to an allocation of €195 per week so where will the rest of the money come from? Which nursing homes will accept such a person? They do not exist. We are retreating all the time from a rights-based approach to planning for the elderly.

I could argue about why such an approach should be adopted. For example, during one's working life the levy for future pension provision applies. One could argue that the right way to go about it is to make compulsory provision for pensions in future, if necessary. The State could construct a rights-based system governed on universal principles. If Irish law could fit easily into European legislation or international law generally, it would be moving towards granting rights to the elderly. That is the way the legislation is going and it is the way future legislation will be forced to go as elderly people seek to vindicate their rights beyond the framework of Irish law. It would be wise to see this as a limited Bill. We need to resource our planning for the elderly and to do so by having a far wider legislative base.

See this speech in context