James Reilly (Dublin North, Fine Gael)

We have waited for this Bill for quite some time. I fully accept it is complex legislation and, furthermore, I agree the current situation is untenable and grossly unfair on people. There is an acceptance generally that those who can afford to contribute towards their long-term care should do so. However, as ever with Bills in this House, the devil is in the detail. There is much detail in this and many areas of concern.

The Minister stated in her preamble that she is bringing certainty, making fair what has been unfair, making consistent what has been haphazard, making sure what has been in doubt, etc. I would like to believe all that but my past experience of Bills in this House, and past experience on initiatives and so-called reform, is that they have been anything but clear or sure. Therefore, I want to go through the Bill, pointing out the areas where people have concerns and where we, on this side of the House, are clear gaps need to be filled. If all these issues can be addressed during Committee Stage, and amendments accepted, then perhaps there can be agreement on this legislation. However, as the Bill stands, there are as many questions as answers.

The Minister stated that the Bill will remove the inequitable situation between support provided for public and private care, and that the contribution will be based on means and capped in some cases. The capping is of concern because last year the Minister allotted €110 million to this scheme and this year she is allotting €50 million.

One does not have to sell or mortgage one's home at the outset, a provision people will welcome because, as the Minister correctly pointed out, people have had to sell their homes in the past, and family members will not be burdened with the cost of care. The Minister has gone through how this works and I will not repeat all that. However, I am very concerned about the resource capping. Will this Bill operate on the basis that there is a finite sum, such as €50 million, and high dependency will be defined up to the point of the ability of the State to afford the care? Will the threshold rise repeatedly, in other words, that it will no longer be a medical assessment? It could well transpire to be an economic assessment on which a medical assessment is based. What I mean is that in a year where €110 million is available, many more people will qualify than in a year where €55 million is available.

It is not clear from the Bill what is the care needs assessment process, which, obviously, needs to be independent. There have been instances abroad in other areas where health authorities, unable to provide a particular service such as for autism, have a remarkably low diagnosis of autism because if they do not have the facility, they must pay for its purchase from an adjoining health authority. The same principle of conflict of interest may arise here.

The Minister mentioned the National Treatment Purchase Fund, NTPF. It will negotiate fees with the nursing homes. We will all be happy that there is a body which negotiates fees with nursing homes. However, throughout the Bill and the explanatory memorandum, the Minister refers to €800 a week as an example. Anybody who lives in Dublin knows she will not find a bed in a nursing home for that amount. Will we end up with a situation similar to the one I encountered in my clinic only a number of weeks ago?

A constituent of mine in Rush has been assessed as needing nursing home care and unable to continue to live independently at home. He is prepared to go into a nursing home which, as the Minister will be aware and as she has already alluded to, is a significant decision — an major emotional break for such a person. The good news is there is a bed available for him, but it is in Portlaoise. This man lives in Rush. To my mind, this decision is designed to let this gentlemen go and wither on the vine 50 miles away from where all his relatives, friends and family could visit him. Somewhere local would at least make the move to the nursing home less of a shock to the system and he could continue to be engaged in his community. Nobody wants people put that distance away and if this Bill allows the NTPF to operate solely on price, on what it can buy down the country versus what is required in the reasonable locality of a patient, then this is a matter that needs to be further clarified.

It is not clear what happens if nursing homes drop out of the scheme. Will patients be moved out of the nursing home? Will they no longer qualify? What will happen? For example, what if regulations change? There are two sides to this — the NTPF is at one end but HIQA is at the other. HIQA will establish the standards. Those standards have not been agreed; they are only in draft form. They need to be seen by Members of this House and agreed. I understand there is general consensus on them, but I have not had an opportunity to go through them. There does not appear to be an issue but, for example, if there is a future recommendation regarding major infrastructural developments in all nursing homes, such as, that they should have a certain number of Parker baths which would involve an additional expense, will some nursing homes find themselves outside the loop or will the NTPF operate reasonably and allow for such matters above and beyond normal inflation?

A major current concern is that nursing homes can be inspected by the HSE, but who is inspecting HSE nursing homes? HIQA is to do this, I hope, independently. Another issue is unclear. Will the HSE remain both a purchaser and a regulator of care or will those functions be separated, one to the NTPF outside the HSE and the other to HIQA?

This Bill is limited to long-term nursing home care, which is defined as anything over a year but which is not limited by age. Therefore, I presume this will apply to younger people who find themselves incapacitated through brain injury, etc. We need to consider whether we accept these concepts. As I stated, there is broad agreement on the basic principles.

Another issue which requires further debate is that the 5% charge on the primary residence is capped at three years, but it is not capped on all other assets. If one lives ten years, it is 5% per annum. That might seem reasonable in certain circumstances, but it may cause tremendous difficulty, hardship and problems for people in rural areas. This will involve siblings, another major aspect of this matter. That charge will be a major issue for people who live on smallholdings, perhaps a brother and a sister, with the land being devalued over time.

Is it realistic to expect this will remain capped? The amount of €55 million will not address long-term nursing home care needs. Why is it capped at €55 million this year? Is it because the Minister does not intend to introduce it for half a year? Is it money for half a year? Is the €110 million additional to the money currently being spent on subventions or is it included?

Who are the winners and the losers? Obviously, the winners are those with limited assets, a home and nothing else. For them, this will be a welcome relief. For many others, it will cause a problem. Those in public nursing homes pay up to 80% of their assessable income. New patients in this category will have their other assets brought into consideration. Those who opt to enter a nursing home but who may not be regarded as medically highly dependent may not qualify.

These patients may also lose from the change in the tax treatment of medical expenses from the marginal to the standard rate. A great deal of confusion has arisen about this and in response to a parliamentary question from Deputy Olivia Mitchell, the Minister for Finance, Deputy Brian Lenihan, finally confirmed that from January 2010 the tax allowance for long-term nursing home care will drop from the marginal rate to the standard rate. If only high dependency patients, by current definition, will be allowed into nursing homes, one third of the 21,000 people in nursing homes at present will not qualify and they will suffer seriously as a consequence of this. How will they be looked after and how will they qualify? This issue must be addressed.

The issue of those who wish to reside in higher cost nursing homes for reasons of geography brings us to how the NTPF will choose the nursing home and whether it will be purely on a monetary basis. Previously, I mentioned nursing homes with a higher cost base.

I know it is not possible to do everything but a major gap in the Bill is that it makes no mention of care at home, and this is a major lost opportunity. Everybody in this House, including the Minister, has accepted that the preference is for people to stay at home. People live longer if they remain at home. This is a multi-factorial finding but it is nonetheless a fact. Will the tax treatment of home care packages and the cost of home care be changed from the marginal rate to the standard rate? Does the Minister plan to introduce measures with regard to care in the home?

The option to defer payment is based on the value of the asset when the initial payment was due rather than the deferred value and the CPI is then applied. If an individual's assets were valued two years ago and he or she had €200,000 worth of bank shares, and if payment were to be made now what would those shares be worth? It would be the same for a house valued three years ago. A person would find rather than paying 15% of the value of the house over the three years they would have been paying 25% of its value. This matter needs to be addressed.

In assessing support requirements, the principal private residence is treated differently to all other assets. As the Minister stated, once three years are paid the contributions stop. As I stated earlier, with regard to land, shares, property and cash the 5% contribution continues until the person dies. Many people will lose out on this. Strict rules will apply on the transfer of assets to others prior to assessment. This could cause problems for people.

The valuation will be signed off by a professional valuer appointed by the HSE. In any dealings in which I was involved or about which I have heard, two valuations are done by valuers agreed by both parties and the middle value is taken. The Bill does not contain proper protection for the individual. The HSE will have a contract with a single valuing agency in an area and it will automatically create a conflict of interest. The person, group or company holding the contract naturally will be inclined to be favourable to the HSE given that the HSE is its client. This is not a reflection on anyone, it is a reality of life. We should have a minimum of two valuations. No provision is made for an independent valuation by the individual if he or she is not happy. This is another weakness of the Bill.

The only standards which apply at present are the 1993 regulations and they only apply to private nursing homes. We need a full set of updated regulations prior to the introduction of the Bill. We need to be assured that whoever the regulator is, and I presume it will be HIQA, it will have sufficient staff to carry out inspections. The other problem we have with HIQA is that it has no teeth. It can inspect a hospital, tell it what is wrong, demand and admonish but that is all. It cannot censure. The hospital faces no consequences. It can say, "sorry, see you next year" and nothing changes. This needs to be addressed urgently whether or not it requires different legislation. It does not apply to nursing homes only but to all health facilities. I mentioned the conflict of interest arising from the HSE as purchaser and regulator. This needs to be examined.

I am extremely concerned about the medical assessment, which is to be carried out by a separate team appointed by the HSE. This returns to the point I made with regard to the health authorities in the UK. Will the health assessment be coloured by availability? It should be independent. Will the Minister address the issue of a patient in hospital assessed by his or her medical team as fit for discharge but who has not been assessed by the assessment team? This situation will arise and it is not provided for in the Bill. The health assessment team will be extremely busy and will find it cannot get to patients for one, two, three, four or five weeks. This will be through no fault of the patient but he or she will have to pay for the hospital bed. Given previous experience of this type of body and assessment, it is most improbable that the assessment will be back within 24 hours. The Bill states it will be within four weeks. Somebody could clock up a bill for three months in a hospital as a consequence of this and through no fault of their own face additional expense.

I would like the Minister to address a host of other issues. I know she cannot do so today but she can come back to us during the course of this debate and on Committee Stage. There is no provision for children over 21 years of age unless they are in receipt of welfare benefit equivalent to the State pension.

The Bill also includes the provision that recipients must be "ordinarily resident in the State". What is the position of elderly members of the diaspora in the United Kingdom and United States who wish to return home in their latter years? Are they entitled to benefit from the scheme or are they excluded under the definition "ordinarily resident in the State" because they may have spent the majority of their working life abroad?

The Bill provides that where co-payment is not made, ancillary payment ceases. This will not normally be an issue. However, what about cases of hardship or other unusual circumstances? Why can co-payment not also be taken as a mortgage lien on assets in such circumstances?

What are the Minister's reasons for excluding foreign property from the list of assets? Will we have a situation where persons with a share in a second house in the State will see the value of that asset driven down year on year, but the same will not apply for those with a holiday home in Portugal or Spain? There are many people with second homes and investments abroad.

In the event of a resident dying in a nursing home, a relative must make an application within three months to be allowed to remain in the family home. This leaves all the onus on the relative to make the necessary arrangements with a short timeframe. There should be a provision whereby the Health Service Executive or the solicitor administering the will must inform the relative of the need to make this application. Many of the relatives concerned will also be elderly and some may not deal well with legislation, forms and other vehicles of authority. If such persons do not apply within the three-month timeframe, whether through lack of ability to interact or lack of knowledge and awareness, will they be put out on the street? The timeframe should be extended to at least six months and there must be provision to make some designated person responsible for ensuring the relative remaining in the house is aware of this condition and who will act to help him or her.

The Minister referred to care representatives. However, I see no mention of grandparents who may be in this position, particularly in the case of chronic brain injury.

The provision for 15 days' notice after which financial support will cease is another issue of concern. At least a month's notice should be given so that families can make alternative arrangements where the Health Service Executive intends to withdraw financial support.

The Bill provides that moneys reimbursed shall return to the Central Fund. Does this refer to the Exchequer, in which case the moneys will be for general use, or does it refer to the overall health budget or to a ring-fenced fund for the long-term nursing home care needs of the elderly? This must be clarified. My own view is that these moneys should be ring-fenced for the purpose of the provision of long-term nursing care.

In regard to the leveraging of mortgages on assets for the amount due to the Health Service Executive, will these be the same as a revenue mortgage and what will the implications be for businesses in terms of who has first call on the asset? Will it be the first or second charge? There are many examples of people living above the sweet shop with their mother. Where that mother is in a nursing home, the property value will be assessed and a 5% annual charge levied. Will this impede the child if he or she wishes to borrow money to modernise the shop? That issue must be examined.

The Bill provides that support is index linked to the consumer price index, CPI. I am concerned that this may be inadequate given that the CPI has never kept pace with medical inflation. More latitude is required in this regard.

What happens when a dispute arises with the nursing home? Although the Health Information and Quality Authority, HIQA, now has responsibility for monitoring standards in nursing homes, people remember with concern the Leas Cross case. What if there is a breach of trust and a breakdown in relations between the nursing home staff and the patient and his or her family? How easy will it be for patients to move to another facility? Will they effectively be locked into a particular nursing home?

We need more detail on the moneys provided for the scheme. The estimated cost to the Exchequer is €820 million, with an immediate cash flow cost of €103 million from deferred payments. However, the Minister has allocated only €55 million in the budget. This is a cause of concern.

My greatest concern relates to the rights of siblings. Many elderly siblings have lived together all their lives, while others return home to live with a sibling after being abroad for a long period. However, there is no provision in this Bill for such persons.

Section 53A of the Health Act 1970, as inserted by section 33(3) of this Bill states:

This section applies where in-patient services (not being long-term residential care services within the meaning of the Nursing Homes Support Scheme Act 2008) are provided to a person in a hospital for the care and treatment of patients with acute ailments (including any psychiatric ailment) and a medical practitioner designated by the Health Service Executive has certified in writing that the person in receipt of such services does not require medically acute care and treatment in respect of any such ailment.

Age Action Ireland and others have expressed concern that this arrangement may be open to abuse or misapplication in that there is no definition of acute care. As a result, one doctor may take social need into consideration while another may not, resulting in an inequity of charges.

The availability of community services is taken into consideration as part of the needs assessment, and availability should be a consideration when deciding whether to discharge a person from acute care. A study by Coughlan and O'Neill in 2001 found that almost one quarter of those requiring long-term care died in hospital awaiting placement. The report suggests that a medical practitioner designated by the Health Service Executive should make the decision that the acute care phase of a person's treatment is completed and that he or she is ready to be discharged. It is a question of independence of assessment. This decision should be made by the multidisciplinary teams. The Minister is a fan of these teams, so she should have no difficulty with that.

Another issue to which Age Action Ireland has alerted me is the possibility that a person may be double charged during his or her lifetime under the provisions of the Bill. For example, a woman whose husband was in long-term nursing home care and who dies in hospital may decide to downsize to a smaller home, in which case she will pay a 7.5% charge when she sells the jointly owned property. If she herself requires nursing home care some time later, her estate will be subject to a deferred 15% charge on her home. Couples should not be charged twice in the lifetime of either spouse but it is not clear whether this protection is contained in the Bill. It is often the case following the death of a spouse that the remaining spouse will downsize from a four-bedroom house, for example, to a two-bedroom apartment. People do so for many reasons, including security.

An extraordinary aspect of the memorandum accompanying this Bill is that in all nine examples, there is no mention of children. Clearly, children will not be catered for in the Bill. It is not uncommon for people in their 50s to take early retirement to look after a frail 72 year old mother or father only to find, God being good, that the latter lives into his or her 90s. The parent having gone into a nursing home at the age of 89, the child, now in his or her 70s, is faced with a charge for 15% of the value of the family home. That is grossly inequitable and unjust, and pays scant regard to the commitment of that daughter or son in taking care of their parent, and saving the State considerable sums of money by so doing. That is not addressed in the Bill. It is a glaring defect that will have to be addressed.

Nobody on this side of the House, at least in the Fine Gael Party, has an issue with trying to address the current, clearly unsustainable situation. However, we do not wish to discover, as we so often have previously, that a perfectly good concept in principle turns into a mire and nightmare for people in practice. I do not wish to introduce an adversarial tone to the debate but we must be mindful of what happened with the HSE. We cannot allow that type of mess to be inflicted on people.

I look forward to discussing the Bill on Committee Stage and I hope the Minister will allow us to suggest amendments. I also hope she will come forward with suitable solutions to address the issue of children and of siblings living together, of which there are many examples, the concerns of those who live on small holdings and who have perhaps farmed them all their lives, for example, two brothers and a sister, which is not uncommon, and the situation of the small shop or small business where the family home is an integral part of the building.

See this speech in context