Michael D Higgins (Galway West, Labour)

I question these amendments' sufficiency. On the final Stages it is worth questioning the Bill's essential constitutionality. It is legally fragile in so far as it sets out to treat citizens in a different fashion, in a manner which could be construed as arbitrary. Separate from the issue of strict constitutionality, other questions arise. There is a real problem as there is such a significant departure from any rights-based approach in the legislation. In identifying forms of physical dependency, the legislation purports to deal with the needs of a citizen. On the other hand, it proposes to meet the needs of the citizen through a set of mechanisms. This will create problems.

When compared internationally the Bill is not consistent with several European conventions. It will not stand up to a court challenge if a case is brought. It is my expectation and hope that such a case will be brought. The fundamental principle is that citizens are entitled, even in the scarcest of times, to be treated equally. The 1966 International Covenant on Economic, Social and Cultural Rights contains several crucial words, "the progressive realisation of one's rights". One cannot structure an inequity of treatment.

The Minister of State will be advised that he is legally entitled to establish some form of a means test. That will not rescue him from the fact that people are being treated unequally. These are fundamental points. The only way of delivering a system, even if one did not have the surplus we have now in the State's revenues, is by treating people equally. The legislation does not treat citizens equally. That is its fundamental flaw and it will fall, rightly, on it.

The Bill eschews the principle of universality. I accept that is an ideological position. The Government, particularly its junior partners, rejects a robust citizenship founded on the principle of universality. In ordinary language, this means each child is entitled to a decent education. People must be treated equally in housing legislation, which has already been tested in the courts. These principles have been established in different aspects of health care. The system proposed in the Bill rejects universality and establishes a set of tiered qualifications based on the most dubious principles. If one followed it from a rights perspective, one would expect to be moving towards the progressive realisation of care for an older person. Accountability is not being offered. One is burying different forms of discretion but the citizen does not receive a guarantee. The system is not based on a principle of guarantee. It is, therefore, moving out of the framework of any constitutional certainty. It is simply bad legislation.

Having been a sociologist for 20 years, I have spoken on occasion about the various academic work on longevity. There is that great curve of life where one has no roles when one is born or dead and the great parabola when one is most active. The longer one stays active in different interests, the longer one lives. Few Members are willing to speak about the short period people actually live after they enter a nursing home. It raises questions as to the degree of activity available to residents. It raises questions as to the urgency of a nursing home inspectorate which is not yet in place.

A most important aspect is when one moves from one's home to an institutional setting. The Bill assumes that one can put a market value on a person's home. It is assumed that it is available as an asset, free to go on the market and based on the market value in one region or another. This principle would not last a day in court because of its highly arbitrary structure. Older people moving to an institutional setting must make a choice as to what they must leave behind. They are limited in what objects that have connotations of intimacy or are family-related they can bring with them. One goes as a single person rather than as a unit. It is a traumatic transition. Most people visiting relatives in nursing homes will often tell them how well they are being looked after. They are likely to get a withering look because the relatives in the nursing home know the difference between their current situation and that which they enjoyed in their own home. Anybody who says to such persons that they must put a value on their house, that it is simply an asset, knows nothing about social gerontology and the aging process. It is rubbish.

In regard to the family home, there are several ways the obligations of the beneficiaries of estates and so on can be structured through the taxation system. However, this is not the direction being taken. Instead, nursing home residents must concern themselves, as my colleague, Deputy Wall, pointed out, with the price they got for their home, the difference between it and the current rate and the division of the sum they secured by the monthly charge. They must ask themselves how long will it last and what is to happen when it is used up.

There is a waiting list of five years at the St. Francis nursing home in Galway and some one third of those on the waiting list are more than 80 years old. Some 15 public nursing home beds were made available in County Galway in the past ten years. There are no step-down facilities in the county and the spare capacity in hospitals is being given over to private medicine, for private rackets in the sickness industry.

All Deputies are aware of the situation. We should agree in a cross-party way on the urgent need for an inspectorate and an enhancement of the level of nursing home care. We all agree there are circumstances in which people need care. However, I do not agree with the substitution proposed in section 3 in regard to the definition of need. The problem is that if we are to meet the definition of need on a rights basis, there must be something that is coterminous between the assessed need of a person and the provision he or she receives. For instance, three levels of dependency are defined. If these are assessed externally, what will happen in the context of the institutional setting of the nursing home? Who is to decide whether it is maximum, high or medium? Will this be assessed by the inspectorate or otherwise?

Even before Committee Stage, I noted a serious flaw in the Bill in the provision relating to those who will make an assessment of impairment, whether physical, psychological or social. There are major deficiencies in regard to the social and psychological aspects. Might there be a suggestion that environmental inspections could be followed up by other inspections and that this would be adequate? It is an absurd prospect. In the transition from a home setting to a nursing home assessments must take account of the whole person. The definitions in the explanatory memorandum do not address this issue which was not dealt with on Committee Stage.

My attitude to this issue is straightforward and republican. In a republic what should count is citizenship. From that citizenship certain rights should be derived. Nobody is saying everything one demands should be provided today or tomorrow. However, the rights perspective, traced through economic conditions, should be based on vulnerability. The State can be reasonably required to move towards the progressive realisation of these basic needs, whether in regard to children, the elderly, disabled people or other vulnerable categories.

It is disgraceful in such conditions of surplus that this legislation should demand that the homes of elderly people must have a market value and that estate agents will decide their entitlement to nursing home subvention. The estate agents who publish the average price of a house, whether in Dublin, the greater Dublin area, Leinster, Munster, Galway or elsewhere, are the ones who report victory every other week when a particular house breaks the magic figure of €1 million. They are parasites who are simply massaging speculators, completely oblivious to any decent consideration of rights, needs or necessities in regard to young people, the elderly or other vulnerable groups.

I do not give a damn whether the value of a person's home exceeds some specified threshold. It is an obscenity that the House should discuss the needs of older people in such terms. The citizens of a republic are entitled to be treated according to a progressive realisation of their needs. That is the basis of a rights perspective. Consequently, they are entitled to be treated equally and to a service that is accountable. Beyond this, they are entitled to an inspectorate and the dignity of assessment as a whole person. They must not be sent to places where they will spend the remainder of their lives — less than three years on average — wondering whether the yield from their home, the asset value, will suffice and whether there will be anything left for their children.

If the Government has concerns about the beneficiaries of estates, it should have the courage to deal with that issue through the taxation system. Will it be the case that the HSE in the different regions will approach the local auctioneer to discover the average price of a house in that location? Will there be people wondering whether they should put half their house over the border into the greater Dublin area and the kitchen in Leinster? All of this is an insult in regard to the care of the aged.

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