Tuesday, 5 December 2006
Health (Nursing Homes) (Amendment) Bill 2006: Report Stage (Resumed)
Serious concerns have been expressed in respect of the proposal in Part 2 regarding the financial assessment of an applicant's means. The Bill states that such an assessment shall be made on the basis of his or her property. However, a number of means are excluded. For example, in respect of a spouse, a child of the applicant in full-time education or a relative of the applicant in receipt of disability allowance, 5% of the family home will not be calculated, and rightly so. However, this will also be the case in respect of a relative of an applicant who is in receipt of a contributory old age pension, which is his or her sole income.
I put to the Minister of State the case of two elderly people aged 78 and 77, respectively, the former of whom enters a nursing home, while the latter is in receipt of a contributory pension and a small retirement pension. According to the criteria, the value of the latter's house will be calculated in respect of the nursing home subvention for the former and will seriously reduce or perhaps eliminate it, depending on the value of the house. This will force the 78 year old on a contributory old age pension and a small occupational pension to sell his or her house. There will be similar cases where people will have small amounts of income that will exclude them from the provisions in this section. In other words, their houses will become eligible to be included in the calculations relating to the subvention.
The Minister for Health and Children stated that this was introduced in 1993. It was introduced as a regulation, with discretion given to the then relevant health board area, now the Health Service Executive, to consider all factors in respect of its application. The Bill removes that discretion because section 7B(3) states: "Subject to subsection (4), the financial assessment of an applicant's means shall be made". It does not state that the assessment "may be made" or that it will be done at the discretion of the Health Service Executive, it states that it "shall be made". Regardless of the circumstances, those making calculations in respect of the nursing home subvention will have no discretion to take into account special circumstances such as those relating to the 78 year old to whom I refer. We may be discussing an occupational pension of €5. However, it will be above the level of the contributory old age pension. The Minister of State should seriously consider allowing discretion in all circumstances when calculating means. He has allowed a level of discretion regarding medical cards, since special circumstances may be taken into account. The Government promised 200,000 extra full medical cards in the last budget. While we are often disappointed at the application and level of the means test for such cards, we recognise that a means test must be applied. Discretion exists when calculating entitlement to a medical card, and we see occasions where it works well.
I can recall situations where elderly and very ill people, perhaps only weeks or months from death, have been extremely concerned at their condition's cost to their family. Making representations on behalf of his constituents, the Minister of State will have witnessed the relief of the terminally ill and their families because of something as simple as allocating a medical card. Doing so in the context of terminal illness, where the person will die within weeks or months, costs very little. I have seen people with advanced cancer who have received a medical card, expressing their appreciation that the HSE had recognised their fate by saying to them that it would assist them somehow. Apart from the financial aspect, it was a psychological boost. I was often amazed at the degree to which this was so, since the patients were in critical circumstances.
I do not see why the same criteria should not be applied to means tests. The HSE would have discretion, and I am not arguing that it should not in certain circumstances exclude the relative of an applicant receiving a disability or similar allowance who has other income. Rather I am arguing that the HSE should be allowed discretion. The provision has deeply worrying implications for the elderly, whose houses have often soared in value since being bought or inherited. Certain such houses will have been in families for generations, with their value increasing over time. The asset is no good to the elderly person, since it is his or her home that will never be sold.
I have witnessed local authorities allowing houses to remain unoccupied after people were sent to long-stay hospitals, since they knew of the psychological effect that taking the house, which might have been in the family for two or three generations, would have. No matter how ill or elderly someone is, he or she always wishes to return home, where his or her father or mother may have lived. Now, when 5% of the value of the home is assessed as income and included with the old-age pension, it might put many applicants above the threshold to qualify for nursing home subvention.
The Bill copper-fastens the 1993 regulations in the form of primary legislation, but one must remember that those regulations were treated differently in each former health board area, with final decisions entirely discretionary. On Leaders' Questions, the Taoiseach stated the HSE could use its discretion in situations where an elderly person might be forced to sell his or her home. Having read the legislation and spoken to lawyers in that regard, I am advised that contention is incorrect, since "shall" means they must act as the legislation outlines. They do not have a choice and would breach the Bill, once enacted, if they acted otherwise, meaning they could be held accountable to their masters. They would breach an Act of the Oireachtas that states how the proposal "shall" be applied, without discretion.
The Taoiseach's statement does not constitute a guarantee and provides little assurance to those who might find themselves above the income threshold, even if the income in question is purely notional and not of any value in day-to-day terms. The grim reality is that this legislation will force some elderly people to sell their homes. I am extremely disappointed at the underhand way in which the Government is trying to push through this provision, and we seek a full debate on funding care for the elderly, in which context the issue should be discussed.
Those most affected by the proposal must be given a chance to express their views, and we must ensure no one is caused hardship or refused a subvention to which he or she should be entitled. The Government's record on the elderly is nothing short of scandalous. From illegal nursing home charges, to Leas Cross, to the shameful absence of an independent social services inspectorate, to the subvention restrictions, it seems the Government is content to preside over the neglect of a vulnerable sector of society.
Psychiatric patients in long-term stay hospitals are excluded from the refund of illegal nursing home charges. Those institutionalised for many years, and now treated in homes with full nursing care but under the same treatment regime as in a psychiatric hospital, will not be refunded nursing home charges in the same way as those who did not avail themselves of, or were not determined to move to, long-stay psychiatric nursing homes. Does the Minister of State feel it discriminates against patients who may have received 20 or even 40 years of treatment in psychiatric hospitals before moving to a psychiatric nursing home, sometimes referred to as a high-dependency hostel, with 24-hour nursing care and full psychiatric treatment?
The Minister of State's colleague, Deputy Tim O'Malley, or perhaps his superior, the Minister for Health and Children, Deputy Harney, should revisit the situation. It is disappointing that circumstances outside our control connected with the budget make this week so difficult, meaning we will be denied the usual opportunities to raise the matter. I plead with the Minister of State to bring our concerns in this regard to the attention of the Minister, Deputy Harney, and Deputy Tim O'Malley, the Minister of State with responsibility for psychiatric services. It denies such patients the same treatment as those in the old psychiatric hospitals, which Planning for the Future in 1985 proposed to close by now, with appropriate care for all.
We look forward to a response to our submissions on calculating means for nursing home subventions.
The Minister of State has not given much leeway on any of the proposed amendments to this Bill, but there is no reason he should not consider accepting this particular proposal. A person who applies for a nursing home subvention must fill in forms and endure various tribulations so that his or her level of dependency may be assessed. Under the provisions of this Bill, any such persons may be liable to have their application reassessed after only one week of care. This is unacceptable. Amendment No. 15 seeks to rectify this by affording some level of freedom and security to the person in receipt of the subvention and to their families and others providing support.
I raised the issue of the three rates of subvention when the Bill was first introduced. This tripartite scheme is irrelevant because nursing homes do not recognise those rates but instead specify a fixed charge of €600 or €700 per week, for example. The specification of three separate rates only causes suffering for those seeking subvention for nursing home care. Those who do not meet the criteria for the highest rate must make up from their own resources the difference between the rate charged by the nursing homes and the amount they receive in subvention.
There is no logic in determining rates of subvention according to whether a person can shave his own face, for instance, or must rely on someone else to do it for him. Such considerations make no difference to the rates charged by nursing homes. The specification of three different subvention rates, based on varying degrees of dependency, assumes that the Department of Health and Children has control over nursing homes to the extent that they can be instructed that a person who adheres to a particular dependency level must be charged the appropriate rate. The Minister of State knows this is not the case.
The issue of assigning one of three subvention rates according to the level of dependency is not relevant in the current situation. If a loved one of mine were admitted to a nursing home tomorrow, it would be pointless for me to claim that he or she should be charged a particular rate because, for example, he or she is able to use the toilet and get breakfast unassisted. The legislative provisions in this regard are illogical for the simple reason that nursing homes charge fixed prices. That is the way the system works.
Amendment No. 15 will offer some relief to subvention recipients and their families by specifying that the level of dependency cannot be reassessed for a period of 12 months. It is highly unlikely that a person taking up residence in a nursing home will remain there for a shorter period. It is generally the case that these people's families and GPs are of the view that they will require long-term care. I ask the Minister of State to accept this amendment in the interests of fair play. Providing some leeway in regard to reassessment will involve a minimal cost to the Exchequer. There is no reason that he should not accept this proposal, which will give some solace to those in receipt of nursing home subventions and their families.
With respect, this amendment represents damn little solace and comfort for anybody. It is the absolute minimum that is required. To defer reassessments for 12 months or more is probably as much in the interests of departmental officials, who may otherwise be caught in an administrative nightmare, as it will be of benefit to those in receipt of subventions. One can hardly imagine it will be possible to review every subvention case determined within a 12 month period.
The reality is that the imposition of a timeframe for reassessment will be of marginal import. It may be useful in providing an opportunity for a healing or cooling-off period. Can the Minister of State be unaware of the difficulties involved for families in placing a parent in nursing home care? I am in my tenth year as a Member of this House and was a councillor for many years before that. In that time, I have seen that the stress involved can be both traumatic and problematic for families. Many are forced to go through a difficult internal family negotiation in determining the respective contribution of each member towards the overall assessed cost, with or without subvention.
This often leads to dispute and rancour. I am aware of many cases where family rifts occur that may never be healed. This is unfair and unnecessary. These are ordinary human beings already having to contend with so much in their own lives, and perhaps with a limited appreciation of the challenges and difficulties each must face.
I will be brief. This amendment would make a small concession and give an opening to the Department with the term "exceptional circumstances". One could describe any number of reasons for embarking on an earlier review as exceptional circumstances. It is a non-definitive term. In the majority of subvention cases there is at least a 12-month settling time.
Many difficulties arise with this legislation. The core difficulty which led to a division on the Order of Business this morning is the continued intention to include the primary residence — the family home — in calculating the subvention. This is outrageous. At a recent engagement with HSE representatives in the audio-visual room in Leinster House Fianna Fáil Members, including former Ministers, stated they strongly opposed this approach. They spoke in absolute defence of the exclusion of the primary residence. I accept it would be a different story if an individual had multiple homes. Since I last spoke on this matter, prominent Fianna Fáil Members have stated they are in agreement with my argument and that of other Opposition Members. Why is it that this objectionable approach to the calculation of a subvention will be railroaded through by a guillotine motion this evening? It is outrageous and a disgrace.
The Bill should have addressed this matter in a holistic, caring and humane fashion. It will only compound the pain and hurt of so many. It will not only affect the person who needs care but also his or her immediate family. During Private Members' Business, at the 11th hour, I suggest the Minister of State consult those Members from his party who attended the meeting in the audio-visual room before he expects the House to endorse the legislation. It must be brought back to the drawing board. Nothing else will be acceptable. For those of the Minister of State's colleagues who will vote for the provision but hold an opposing view on it, twice the shame on them.
It was very memorable too. We have never sold this legislation as making a major change to the way the subvention scheme operates. The scheme operates under the 1993 regulations. On the advice of the Attorney General, it was decided to provide for it in primary legislation. There will be no real change in how the scheme will be administered. It will be administered on a standardised basis across the State.
The HSE would have to be in a position to review the degree of dependency and the means of a dependant at any time as both dependency and financial circumstances can change significantly in 12 months.
A person could win the lotto. There is only a certain amount of money that can be put into the scheme. In the first year €5 million was provided for it. This year up to €160 million will be spent. It is prudent to ensure the money is targeted at those who need it most. A person in receipt of a subvention could inherit money or have a substantial win on the pools.
It is prudent for the HSE to be in a position to carry out a review if circumstances change dramatically or significantly. This provision represents no change from the position as laid out in the 1993 subvention regulations.
Deputy Ó Caoláin spoke about the trauma and difficulties experienced by dependants and their families. With Deputy Wall, I am familiar with them. I have said before the subvention scheme is far from ideal and several changes will have to be made to it. That is why we have given serious consideration to the funding of long-term care. If one were drawing up a subvention scheme from scratch, one would never arrive where we are at.
There is no bottomless pit in any scheme where money is provided. When the scheme began in 1993, €5 million was provided. It was a Labour Party Minister who introduced the clause concerning the primary residence. At the time it did not seem to cause any difficulty for Opposition Members when they were on this side of the House.
The argument has been made for excluding the family home. It is not possible to agree to this proposal on this occasion. I am not in a position to accept the amendment.
The Dail Divided:
For the motion: 73 (Bertie Ahern, Dermot Ahern, Michael Ahern, Noel Ahern, Barry Andrews, Seán Ardagh, Niall Blaney, Johnny Brady, Martin Brady, Séamus Brennan, John Browne, Joe Callanan, Ivor Callely, Pat Carey, John Carty, Mary Coughlan, John Cregan, John Curran, Noel Davern, Síle de Valera, Tony Dempsey, John Dennehy, Jimmy Devins, John Ellis, Michael Finneran, Dermot Fitzpatrick, Seán Fleming, Mildred Fox, Pat Gallagher, Jim Glennon, Noel Grealish, Mary Harney, Seán Haughey, Jackie Healy-Rae, Máire Hoctor, Joe Jacob, Cecilia Keaveney, Billy Kelleher, Peter Kelly, Tony Killeen, Séamus Kirk, Tom Kitt, Brian Lenihan Jnr, Conor Lenihan, Michael McDowell, John McGuinness, Micheál Martin, John Moloney, Donal Moynihan, Michael Moynihan, Michael Mulcahy, M J Nolan, Éamon Ó Cuív, Seán Ó Fearghaíl, Charlie O'Connor, Willie O'Dea, Liz O'Donnell, John O'Donoghue, Noel O'Flynn, Batt O'Keeffe, Ned O'Keeffe, Fiona O'Malley, Tim O'Malley, Peter Power, Seán Power, Mae Sexton, Brendan Smith, Noel Treacy, Mary Wallace, Joe Walsh, Ollie Wilkinson, Michael Woods, G V Wright)
Against the motion: 49 (Bernard Allen, Dan Boyle, James Breen, Tommy Broughan, Joan Burton, Paul Connaughton, Paudge Connolly, Seymour Crawford, Seán Crowe, Jimmy Deenihan, Bernard Durkan, Olwyn Enright, Martin Ferris, John Gormley, Séamus Healy, Joe Higgins, Michael D Higgins, Paul Kehoe, Kathleen Lynch, Pádraic McCormack, Dinny McGinley, Finian McGrath, Paul McGrath, Paddy McHugh, Arthur Morgan, Breeda Moynihan-Cronin, Catherine Murphy, Gerard Murphy, Denis Naughten, Dan Neville, Caoimhghín Ó Caoláin, Fergus O'Dowd, Jim O'Keeffe, Brian O'Shea, Jan O'Sullivan, Séamus Pattison, Willie Penrose, John Perry, Ruairi Quinn, Pat Rabbitte, Seán Ryan, Trevor Sargent, Joe Sherlock, Emmet Stagg, David Stanton, Billy Timmins, Liam Twomey, Mary Upton, Jack Wall)
Tellers: Tá, Deputies Kitt and Kelleher; Níl, Deputies Kehoe and Stagg.
Question declared carried.
I move amendment No. 16:
In page 12, between lines 8 and 9, to insert the following:
"(5) (a) A person who is in receipt of a subvention and who is deemed by the Executive under subsection (2) either to be no longer qualified for the payment of a relevant subvention, or qualifies for the payment of a different relevant subvention than that currently being paid to the person, or a person acting on his or her behalf, may appeal, to an appeals officer designated by the Minister, on the grounds—
(i) of his or her means and circumstances,
(ii) that the review conducted under subsection (1) was inadequate, improper or incorrect, or
(iii) of any abatement of the maximum rate appropriate to that person's level of dependency, against the decision of the Executive under subsection (2).
(b) The designated appeals officer shall consider an appeal under paragraph (a) and shall inform the person making the appeal of his or her decision within 28 days of the receipt of the appeal.
(c) For the purpose of deciding the appeal, the designated appeals officer may request information from the Executive and from the person to whom the appeal refers or a person acting on his or her behalf.
(d) A decision of an appeals officer shall be final and conclusive.
(e) Where the Executive makes a determination under subsection (2), it shall inform the dependent person to whom a relevant subvention is paid, of his or her right to appeal the decision under this subsection.".
The Dail Divided:
For the motion: 52 (Bernard Allen, Dan Boyle, James Breen, Tommy Broughan, Joan Burton, Paul Connaughton, Paudge Connolly, Jerry Cowley, Seymour Crawford, Seán Crowe, Jimmy Deenihan, Bernard Durkan, Olwyn Enright, Martin Ferris, Eamon Gilmore, John Gormley, Séamus Healy, Joe Higgins, Michael D Higgins, Paul Kehoe, Enda Kenny, Kathleen Lynch, Pádraic McCormack, Dinny McGinley, Finian McGrath, Paul McGrath, Paddy McHugh, Liz McManus, Arthur Morgan, Breeda Moynihan-Cronin, Catherine Murphy, Gerard Murphy, Denis Naughten, Dan Neville, Caoimhghín Ó Caoláin, Fergus O'Dowd, Jim O'Keeffe, Brian O'Shea, Jan O'Sullivan, Séamus Pattison, Willie Penrose, John Perry, Pat Rabbitte, Seán Ryan, Trevor Sargent, Joe Sherlock, Emmet Stagg, David Stanton, Billy Timmins, Liam Twomey, Mary Upton, Jack Wall)
Against the motion: 73 (Dermot Ahern, Michael Ahern, Noel Ahern, Barry Andrews, Seán Ardagh, Niall Blaney, Johnny Brady, Martin Brady, Séamus Brennan, John Browne, Joe Callanan, Ivor Callely, Pat Carey, John Carty, Donie Cassidy, Mary Coughlan, John Cregan, John Curran, Noel Davern, Síle de Valera, Tony Dempsey, John Dennehy, Jimmy Devins, John Ellis, Michael Finneran, Dermot Fitzpatrick, Seán Fleming, Mildred Fox, Pat Gallagher, Jim Glennon, Noel Grealish, Mary Harney, Seán Haughey, Jackie Healy-Rae, Máire Hoctor, Joe Jacob, Cecilia Keaveney, Billy Kelleher, Peter Kelly, Tony Killeen, Séamus Kirk, Tom Kitt, Brian Lenihan Jnr, Conor Lenihan, Michael McDowell, John McGuinness, Micheál Martin, John Moloney, Donal Moynihan, Michael Moynihan, Michael Mulcahy, M J Nolan, Éamon Ó Cuív, Seán Ó Fearghaíl, Charlie O'Connor, Willie O'Dea, Liz O'Donnell, John O'Donoghue, Noel O'Flynn, Batt O'Keeffe, Ned O'Keeffe, Fiona O'Malley, Tim O'Malley, Peter Power, Seán Power, Mae Sexton, Brendan Smith, Noel Treacy, Mary Wallace, Joe Walsh, Ollie Wilkinson, Michael Woods, G V Wright)
Tellers: Tá, Deputies Kehoe and Stagg; Níl, Deputies Kitt and Kelleher.
Amendment declared lost.
I move amendment No. 17:
In page 12, lines 22 and 23, to delete all words from and including "a" in line 22 down to and including "Executive)" in line 23 and substitute "an independent person".
This is an important amendment, and at the outset I hope the Minister will take its principle on board. An appeal against a decision of the executive is to be heard by someone who could be an employee of the executive and who must comply with the guidelines set out by the executive, as relating to sections 7E(3) and 7E(4). It is important to make reference to these.
Section 7E(3) states "Where the Executive receives an appeal under subsection (1), it shall appoint a person (who may be an employee of the Executive) to consider the appeal." Section 7E(4) states,
The person appointed pursuant to subsection (2) to consider an appeal under subsection (1) shall—
(a) comply with guidelines issued by the Executive in respect of the procedure to be followed with respect to the consideration of any appeal,
(b) consider any written or oral objections made by the appellant in support of the appeal,
(c) make a decision ("relevant decision") in writing determining the appeal as soon as is practicable in all the circumstances of the case, and
(d) send a copy of the relevant decision to the relevant person and the Executive together with the person's reasons for the decision.
Comprehensive guidelines are set out within which the person will work. It should be noted that no independent appeals mechanism is in place. Since I entered this House, Bill after Bill has made reference to an appeals mechanism. Here we have a Bill which refers to the most vulnerable in our society, namely, elderly people who for the last two or three years of their lives will be confined to a nursing home because they do not have the provision or means to remain in their home environments where most would prefer to be. Through necessity they must enter either a public or private nursing home. A decision is then taken by the HSE for a particular reason that the person is not eligible for a miserly subvention of €114.30 for medium dependency, €152.40 for high dependency or €190.50 for maximum dependency. They are the levels of subvention.
Families of parents who over the years made huge sacrifices to educate them are told a public nursing home place is not available. This Government, notwithstanding its commitments in its manifesto and programme for Government that another 800 public nursing home beds would be provided, has not provided one. It is a shame on the Minister for State that this is the case.
Under this Bill, people will be told they will not be eligible for a miserly subvention. What is the situation throughout the country? I can tell the House what is the position in my constituency and in the greater Dublin area. The average rate for a nursing home bed in the Fingal area is between €800 and €900 per week. Where a high level of dependency is involved, the average weekly rate can be as much as €1,200 per week. This Bill states one can go through an appeals mechanism but no independent adjudicator will be involved. The executive or a nominated person from it will adjudicate on the appeal. This is a scandal. Show me another Bill which does not include an independent adjudicator. As far as I and the Labour Party are concerned, it is not acceptable that the most vulnerable in society and their families can be dealt with in this way.
Let us envisage an employee of the HSE designated by the chief executive to make an adjudication. Many people are of good standing. However, it is unfair to ask them to adjudicate in the first instance. Certain people, hopefully in a minority, could consider such a situation in light of the best way of climbing a career ladder. Will they adhere to the advice, recommendations and guidelines handed down by the executive to the letter of the law? They will be asked to make a judgment.
As I stated, an independent appeals mechanism is not in place nor is there an advocacy service for an appellant. Both services are proposed in other Bills. It would be better if they were in place before the Bill is enacted. This Bill is all the poorer without this amendment. This is about people having confidence that when they make an appeal it will be considered by someone in an objective manner and not as an employee of the chief executive. Such a person may be viewed as being there to implement the diktat of the executive.
It should be stated in the Bill that decisions of an appeals officer should be subject to a review by the Ombudsman. Why is the Ombudsman not referred to in this Bill? Perhaps the Department and Minister are afraid of the Ombudsman and have taken exception to decisions made by her over the years. The Ombudsman consistently stated with regard to issues relevant to older people that the Department broke the law. The Ombudsman is the one person who stood up for older people and the treatment they were afforded by the health boards in the past, and now the HSE. Why can we not have reference to the Ombudsman for further adjudication?
When we consider the situation of older people in its entirety and their rights and entitlements, it is obvious this Bill is not necessary. The guidelines in the Bill for an appeals officer state the financial assessment of an applicant's means will include all income and investments including life policies and any assets transferred within the previous five years for nominal consideration and up to 5% of the market value of one's house. I know the Minister of State does not like us getting back to this, but it is taken into consideration in the assessment of means.