Mary Butler (Waterford, Fianna Fail) | Oireachtas source

I move: "That the Bill be now read a Second Time."

I am very pleased to introduce the Health (Miscellaneous Provisions) (No.2) Bill 2024 to the Dáil. The legislation has two main aims. First, through amendments to the Health Act 2007, it will strengthen the regulatory framework for residential care services regulated under the Act. This includes residential centres for older persons, people with disabilities and children in need of care and protection. The ultimate objective of these proposals is to drive improvements for people living in these centres. These are some of the most vulnerable people and it is vital that we have a robust system of regulation to ensure they are receiving safe, quality care. Second, through amendments to the Nursing Homes Support Scheme Act 2009, it will widen the definition of those eligible to be considered as a family successor to a family farm or productive business assets under the nursing homes support scheme, or, as many people know it, fair deal.

I will begin by focusing on amendments to the Health Act 2007. 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 respect of these residential services. The Chief Inspector of Social Services, the regulator of these services, monitors compliance with these regulations and standards. There are three substantive provisions in the Bill to enhance the regulator’s enforcement powers and, consequently, to provide greater safeguards for residents. It is important to state at the outset that in general, there is a good standard of care across our residential services and good levels of compliance with regulations. However, as we all know, this is not always the case. We can see that in the inspection reports published on a regular basis by the chief inspector. In a recent annual overview report of monitoring and regulation of older persons' services in 2022, the chief inspector noted that although there was good overall compliance in 2022, "there are regulations with consistently higher levels of non-compliance over a prolonged period". For these instances, it is essential that effective enforcement mechanisms are in place.

The first of these enhancements will provide the chief inspector with a new power to issue compliance notices, which are an enforcement tool common across other regulated sectors. At present, the chief inspector’s enforcement powers centre on placing restrictions known as conditions on a registration or, in extreme cases, cancelling a registration. The chief inspector has described these as blunt instruments. Compliance notices will provide for a more timely and proportionate intervention where there is a breach of the regulations, focused on bringing a provider into compliance and driving service improvement. Non-compliance with a compliance notice will be an offence under these new provisions and may be subject to prosecution. It is important to state that this amendment is not introducing new requirements or increased regulation on service providers. It is simply providing the chief inspector with a further mechanism to ensure that the current protections for residents, as required under regulations, are adhered to and upheld.

The second enforcement provision relates to the power to enter and inspect premises. The chief inspector currently has the power to enter and inspect premises that are registered or are in the process of registering as designated centres. It is an offence to operate as a designated centre without being registered by the chief inspector. However, there is no explicit power for the chief inspector to enter premises which he or she suspects are operating as designated centres to establish if, in fact, this offence is being committed. To address this, the Bill provides for an amendment to the Health Act to provide a clear and unambiguous power for the chief inspector in this regard and will ensure the protections afforded to residents of registered centres are extended to those in centres operating outside the registration and regulatory system.

The third change being made to enhance enforcement arrangements concerns the timelines for current enforcement processes in the Act. At present, service providers have 28 days to make representations in relation to a proposed decision by the chief inspector to place a condition on registration or to cancel a registration and to appeal a decision of the chief inspector to the District Court. I want to make these processes quicker in order that the chief inspector can take timely action to safeguard residents. The amendment will reduce these timeframes from 28 days to 14 days. I believe that this is a proportionate measure and takes account of the fact that there is generally significant engagement between the chief inspector and the provider in advance of any proposed enforcement decision. The new timeframe also aligns with timeframes for other District Court appeal processes. The Bill also introduces new provisions in relation to the collection of key data from nursing homes. These provisions relate to nursing homes only. The majority of nursing homes are in private ownership and we currently do not have any centralised powers for the systematic collection of key data across the sector on a regular basis. This issue came to the fore during the Covid-19 pandemic. Access to good-quality, collated data on a sectoral basis is crucial to supporting effective national policymaking and service planning. These provisions are to address this gap. The amendments will provide a new obligation on nursing home providers to provide a defined data set to the chief inspector and will provide the chief inspector with new functions to collect, share and publish this data. The categories of data are defined in the Bill and broadly encompass information on the centre itself and the profile of residents and staff. This is the type of data available across other areas of the health service. It is worth emphasising that data will not be collected at the individual level, that is, the resident or staff member but will be in relation to the overall profile of residents and staff in the facility. Safeguards have also been included in the legislation to ensure that any data that identifies an individual will not be shared or published by the chief inspector. There is a small number of further minor amendments to the 2007 Act, which I will mention briefly later.

I will now outline the changes proposed to the Nursing Homes Support Scheme Act 2009. The nursing home support scheme, commonly known as the fair deal scheme, is a system of financial support for those requiring long-term nursing home care. Participants contribute to the cost of their care according to their means, while the State pays the balance of the cost. As Deputies will be aware, I introduced an amendment to the scheme through the Nursing Homes Support Scheme (Amendment) Act 2021, which extended the three-year cap that applies to the applicant's principal private residence to family farms and business assets, where a family successor is appointed. This family successor must continue to run the farm or business for at least a period of six years and have at least consistently applied to running the family asset for at least three of the last five years. This was a really important change to safeguard and protect the viability of family farms and businesses and it ensures that more family farms and businesses are handed down to the next generation. Since the introduction of the amendment, which came into operation in October 2022, there have been 301 applications, with 96 being successful. Since introducing these amendments, it has become clear that a small group of individuals with no close relatives have sought to benefit from this relief but cannot because they do not have a person who meets the eligibility criteria for a family successor, as currently provided for in the legislation. These proposed amendments to the fair deal scheme will ensure that the safeguards for family farms and businesses apply to the extended family, including cousins, great-nieces, great-nephews and great-grandchildren, further protecting the viability and sustainability of these businesses into the future. This is a really important change for individuals who do not have immediate relatives. There are also a number of technical amendments to the Nursing Homes Support Scheme Act in the Bill, which I will mention briefly later.

I will now provide a brief explanation of the sections of this Bill. The Bill is divided into three parts, with 35 sections. Part 1 is for the preliminary and general provisions of the Bill and contains only one section.

Section 1 contains standard provisions in relation to the Short Title and commencement arrangements. Part 2 provides for amendments to the Health Act 2007 and contains sections 2 to 19, inclusive.

Section 2 is the standard interpretation section and provides that the principal Act refers to the Health Act 2007.

Section 3 sets out amendments to section 41 of the 2007 Act to provide for new functions for the chief inspector to collect key data relating to designated centres for older people - nursing homes - and to inspect premises where he or she suspects the business of a designated centre is being carried out while unregistered.

Section 4 sets out amendments to section 49 of the 2007 Act to provide that any details of any fines or penalties imposed under the Act will be entered on the register of designated centres maintained by the chief inspector. This will enhance transparency.

Section 5 inserts a new section 51A into the 2007 Act to provide an express statutory power for the chief inspector to remove a condition attached to a designated centre’s registration without the need for an application by the registered provider as currently required. This will remove an unnecessary burden on the provider and speed up the process.

Section 6 is a consequential amendment arising from Section 5 and amends section 53 of the 2007 Act to provide that the chief inspector must notify the provider of the decision to remove a condition.

Section 7 sets out amendments to section 54 of the 2007 Act to reduce the timeframe in which a registered provider may make representations to the chief inspector in respect of a proposed decision regarding registration from 28 days to 14 days.

Section 8 provides for two amendments to section 55 of the 2007 Act. The first is another consequential amendment arising from section 5 to provide that the chief inspector must give notice to the provider of a decision to remove a condition, and the second a reduction in the timeframe from 28 to 14 days.

Section 9 amends section 57 of the 2007 Act to reduce the timeframe in which a registered provider may appeal a decision of the chief inspector regarding a registration to the District Court from 28 to 14 days.

Section 10 sets out amendments to section 65 of the Act in respect of the submission of information to the chief inspector by registered providers. It states that the chief inspector can request information necessary for the undertaking of her functions and that the provider is obliged to provide the information, and in the manner and form, the chief inspector considers necessary.

Section 11 inserts new section 65A into the 2007 Act to provide for the collection, sharing and publication of key data from designated centres for older people. It states that no data that can identify an individual can be shared or published. The section also inserts a new section 65B to provide that a registered provider shall not submit false or misleading information to the chief inspector, and it will be an offence under section 73 of the Act to do so.

Section 12 provides for transitional provisions relating to the reduction of the time limits from 28 to 14 days.

Section 13 inserts new sections 73A and 73B into the 2007 Act to provide that the chief inspector may enter to inspect a premises where he or she believes the business of a designated centre is being carried out, but which is not registered. It sets out the actions that the chief inspector may take and the circumstances in which the District Court may issue a warrant authorising entry to a premises.

Sections 14 and 15 are consequential amendments arising from section 13. Section 14 amends section 76 of the 2007 Act to extend the circumstances where the chief inspector may be accompanied by a member of An Garda Síochána to include inspections of unregistered centres. Section 15 inserts new section 77B into the 2007 Act, which mirrors section 77 to provide that a person shall not refuse entry, obstruct or impede an inspection or give false or misleading information in the context of such an inspection.

Section 16 inserts a new section 78A into the 2007 Act to provide for the serving of compliance notices on registered providers. It states that the chief inspector may issue such notices to the registered provider of a designated centre for older people or people with disabilities. It also states that the compliance notice will identify the area of non-compliance and a timeframe within which this should be remedied. It also provides that the registered providers will have the right to make an appeal to the District Court within 14 days. It finally sets out that a registered provider who does not comply with the notice within the specified date is guilty of an offence and liable to prosecution. Fines and penalties for prosecution mirror those currently in the Act. Details of any fine or penalties incurred by the registered provider under this new provision shall be entered on a non-compliance list maintained by the chief inspector, which may be published. This measure will apply to designated centres for older persons and designated centres for people with a disability.

Section 17 sets out amendments to section 79 of the 2007 Act to introduce the offence of providing false or misleading information under the new provisions in section 65A or under section 77B to refuse or obstruct entry to a person carrying out an inspection under section 73A

Section 18 sets out amendments to section 101(3) of the 2007 Act to ensure that there is a clear legal basis for the Minister to prescribe in regulations required elements of a complaints process for designated centres.

Section 19 inserts a new section 101B into the 2007 Act to provide the Minister for Health with regulation-making powers to prescribe the collection, sharing and publication of data relating to designated centres for older persons. Regulations will determine the type of data to be collected, shared and published and the frequency of the submission and sharing of the information as provided for by the new section 65A as described already. Part 3 provides for amendments to the Nursing Homes Support Scheme Act 2009 and contains sections 20 to 33, inclusive.

Section 20 is the standard interpretation section, which provides that the Act of 2009 means the Nursing Homes Support Scheme Act 2009.

Section 21 sets out amendments to section 14A to extend the categories of persons eligible to be appointed as family successors to a family farm or business, to include first cousins, great-nephews, great-nieces and great-grandchildren.

Section 22 provides for technical amendments to section 14C to clarify the circumstances in the appointment of a family successor in section 14C(4)(f).

Section 23 sets out technical amendments to section 14D with regard to a determination of a family successor in the case of members of a couple.

Section 24 amends section 14F to extend the categories of persons eligible to be appointed as family successors to a family farm or business to include first cousins, great-nephews, great-nieces and great-grandchildren.

Section 25 provides for technical amendments to section 14G relating to the death or change in circumstances of a family successor provisions to extend the categories of persons eligible to be appointed as family successors.

Section 26 provides for technical amendments to section 14H in respect of a change in family successor following the transfer of a particular family asset provisions and to extend the categories of persons eligible to be appointed as family successors, similar to those amendments in section 25.

Section 27 provides for technical amendments to section 141 relating to the repayment of an increase in State support provisions.

Section 28 provides for technical amendments to section 14K in the application by a partner of a family successor provisions.

Section 29 sets out technical amendments to section 14L in the application by a partner of a deceased person for the appointment of a family successor provisions and to extend the categories of persons eligible to be appointed as family successors.

Section 30 sets out technical amendments to section 14M in respect of a determination as to farm or business relief where a family successor fulfils an undertaking and the second person in a couple is entering nursing home care after the family successor has fulfilled the undertaking in regard to the first partner. Section 30(1)(d)(iii) currently sets out that this section is to apply where the partner has received three years of nursing home care after the expiry of the period of the undertaking. However, the requirement relating to three years of nursing home care is provided for by way of section 14M(4). For this reason, section 14M(1)(d)(iii) is deleted.

Section 31 sets out technical amendments to section 24A regarding notification of material change in the circumstances of a family successor provisions.

Section 32 sets out technical amendments to section 27A relating to the discharge of orders made under section 14B provisions.

Section 33 provides for technical amendments to section 32 regarding appeals against certain decisions of the HSE provisions.

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