Tuesday, 5 December 2006
Health (Nursing Homes) (Amendment) Bill 2006: Report Stage (Resumed) and Final Stage
In deciding on appeals there must be independence. In an appeals process in the Department of Social and Family Affairs, the appellant is informed that it is an independent process. That puts the appellant at ease as he or she knows there will be fair play. The tribunals of inquiry are fully independent of what they are investigating. The independence of an appeals board ensures both sides have trust in the process.
In the nursing home subvention scheme, if an appeal is to be heard by a member of the HSE, it will put the appellant under much pressure. He or she will be appealing a decision by the HSE to a HSE staff member. Such a process does not occur in the normal appeals processes in other State agencies. I cannot see the logic behind this provision. A staff member of the HSE hearing an appeal against its own decision does not allow for transparency in the system. In many applications for nursing home subvention, the individuals concerned have reached the end of a very difficult process. Integrity in terms of the appeal is of the utmost importance. It would be easier for the Minister to provide that the tribunal would be overseen by an independent person. I ask the Minister to accept the amendment, otherwise there will not be transparency.
This amendment seeks to ensure a member of the staff of the HSE does not adjudicate in the event of an appeal presenting. That is a reasonable proposition. As the previous speaker said, what other instance can the Minister of State give us where an appeal is conducted directly by the agency which made the initial determination? It does not stand up. It is not the case in D'Olier House and it should not be the case in the appeals process vis-À-vis the entitlement to a nursing home subvention or the extent of such support that any dependent older citizen would need.
It is very important to point out that the amendment should go further. It refers to an independent person. The Bill refers to a person who may be an employee of the executive, but what of the need for specific training and for real skills, for the ability to be open to the difficulties experienced by older people? Members have given many examples of these during the debate. There are very serious and often negative consequences not only for the senior citizen, the applicant party, but also for his or her family. The appeals process should not be heard by a person just plucked out of the staff of the executive, as the presentation suggests is allowable. Neither should it just be an independent person. The person involved must be qualified with the required insight into the difficulties of life for so many people who find themselves in this situation. It is not good enough just to comply with guidelines or to consider any written or oral objections, to make a decision as is required of the holder of the position in paragraph (c) and to send a copy of the decision to the relevant applicant and the executive. The legislation should be far more specific in terms of the person or persons who should carry out the appeals function. That is a weakness in the text of the Bill and in the amendment.
The amendment, however, would make a significant improvement to the Bill. If people are to participate in an appeals process, they must have confidence in the system. Otherwise, how can they ever accept an outcome that is adverse to their understanding of their position? It is very important that this is taken on board and that the Minister of State does not go through this entire exercise with a "no, no" position — I did not add a third "no" because I will not put him in the Thatcher mould just yet. She always had three "no's". I am being nice to Deputy Seán Power, particularly given what is involved in this legislation which I find so objectionable.
As Deputy Wall said, it is high time the Minister said yes for a change. Deputy McManus's amendment seeks independence in the adjudication of any decision where an appeal presents. I hope the Minister will give us a change of answer on this occasion.
I support the other speakers on this amendment, without which the legislation is weak, faulty and flawed. The strength of any legislation or system which deals directly with the public, and where a decision can affect their lives to the extent to which this legislation can, is an appeal system. The integrity of the entire system, not just the appeal system, is determined by the degree to which the appeal system is independent. If the system is not independent it becomes a self-serving exercise. What else can happen but a repeat of the original decision? In this situation many people are vulnerable, under stress and pressure. They have worked all their lives and given their best to the country and society. At the end of that, the best we can come up with is an appeal system whereby, if the person is lucky and the appeals officer is in a good mood on the particular day, a favourable decision might be reached. On the basis of the decision originally coming from the same Department, what is likely to happen in the event of an appeal? Will that appeals officer overturn that decision? Will he or she overturn 50% of the decisions? There is no chance of that. Will he or she overturn all the decisions? There is absolutely no chance of that. If that could happen we would have different legislation in the first place and a different provision in the Bill.
There is an urgent necessity to take on board this amendment, which will give the Bill some kind of integrity and an appearance of fairness to all, particularly those people with whom we have all dealt. Over the years, like every Member of this House, the Minister has dealt with families in stressful situations faced with the type of scenario anticipated in this legislation, under which they will not have a compassionate response and institution to go to in the event of a decision being made. We have all seen decisions that have put individual households in virtual penury almost at the end of their days. There is so much money floating around this country. There is virtually money to burn, and in some parts of the country it has been burned. An abundance of money is coming in at such a rate that even the Department of Finance was unable to count it in the last few days until the last minute. How have we arrived at the situation whereby although the Government has that kind of money in its pocket, there are people who are vulnerable and under stress, who have one eye on the clock and the other on the bank account, wondering whether the decision will go against them? If the decision goes against them, they wonder what will happen to their appeal, who the appeals officer will be and to what extent they can depend on that appeals officer returning a decision in accord with their circumstances.
I am amazed that we are discussing a Bill that will allow the HSE to seize the homes of elderly people and sell them if their income is €5 above the old age pension. That is the thrust of this Bill. To compound matters we are dealing with the appeals system that might be available. The principle of the independence of an appeal or a judicial decision is enshrined in many pieces of legislation. If the Minister were bothered he could see that everybody agrees we made a serious mistake on this matter when we established the Garda Síochána Complaints Board, which allowed the Garda to examine complaints against itself. This was ineffective and unacceptable, and fell into disuse arising from the fact that it was not independent. At last the Government is doing something about that, and it will have to do something about this. This type of legislation whereby somebody who is the cause of a grievance will have a peer from his or her own organisation dealing with the grievance will not give any sense of fairness. Even if the appeal officer came to a correct decision and the complainant had no case in the appeal, there would still be a grievance due to the perception that an appeal officer from the organisation that made the original decision could not be objective or fair. If the Minister of State does not have the authority to do this, he should refer it to his senior Minister and introduce an amendment similar to this one on Report Stage.
I support the amendment. The one requirement for an appeal system is credibility. People must believe they are getting justice and there must be a sense of objectivity and fairness. I do not say the members of the executive who will be appointed will not be fair. While some of them may be influenced, most will be fair. There is much integrity among civil servants. However people whose appeals are unsuccessful will not believe this. They will be suspicious and lack confidence when embarking on the appeals process if they know the appeals officer is from the organisation against which they are appealing.
I do not know whether the Minister has the power to make decisions. His demeanour and responses on this Bill suggest he does not have that power. We have seen some Ministers and Ministers of State make decisions on amendments that were influenced by debate. They faced down the advice they were given on the basis of what was right. Despite strong presentations and views from the Opposition, he has not made such decisions. We have seen the independent investigation of issues by the Department of Social and Family Affairs and we deal with them regularly, as the Minister does from his constituency. Deputy Stagg has referred to the Garda Síochána Complaints Board and the Minister knows the difficulties that have arisen, not regarding the decisions of the body but the perception that it was part of the institution.
Would the Minister take courage on this decision? It will not require an extensive change. His Bill specifies the appeals officer may be a member of the HSE. If he changes this to specify that it may not be a member of the HSE it will be independent. The Minister made his mark politically some time ago. Now he should make his mark again and say it will be independent, since under the Bill it can be independent. He should not allow influences beyond his control to be exerted on this issue, which might result in cases not being adjudicated on independently for reasons he may not like. He might not be in control of this area ten years hence.
I support the amendment. The general principle is that an appeals system should be independent and seen to be independent. People should have confidence in it and should feel that the system is fair, allows them to advance their point of view and is overseen by someone without a hidden agenda. The current position suggests that will not be the case. The Bill is black and white. It guarantees that people who have worked their entire lives, bought a council house and helped to build the Celtic tiger will be forced to sell their homes. Even if Almighty God was the appeals officer he would not be fair, nor seen to be fair, nor could he be.
I put a question to the Minister of State last week. I know two brothers on non-contributory old age pensions. Both are medical card holders and local authority tenants. Both have applied for public beds in long stay institutions but the beds are not available. The maximum subvention they can receive is €240 per week. When this is added to the pension each is €100 short per week. What should they do?
The Deputies ask questions they do not want me to answer.
The purpose of the Bill is to include in primary legislation a scheme introduced by way of regulation. We do not seek to restructure the scheme.
The amendment refers to section 73, which allows the HSE to appoint a person from the HSE or outside to consider an appeal. This allows the HSE to retain an employee to consider appeals in particular instances where it proves difficult to recruit a person outside the executive with suitable qualifications. Any appeals officer must act independently in hearing an appeal and act in accordance with natural justice, as provided for in the Bill.
The Dail Divided:
For the motion: 62 (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, Tony Dempsey, John Dennehy, Jimmy Devins, John Ellis, Michael Finneran, Seán Fleming, Pat Gallagher, Jim Glennon, Noel Grealish, Mary Harney, Seán Haughey, Máire Hoctor, Joe Jacob, Cecilia Keaveney, Billy Kelleher, Peter Kelly, Tony Killeen, Séamus Kirk, Tom Kitt, Conor Lenihan, Tom McEllistrim, John McGuinness, Micheál Martin, John Moloney, Donal Moynihan, 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, 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: 46 (Bernard Allen, Dan Boyle, James Breen, Pat Breen, Tommy Broughan, Paul Connaughton, Paudge Connolly, Joe Costello, Jerry Cowley, Seymour Crawford, Bernard Durkan, Olwyn Enright, Martin Ferris, John Gormley, Séamus Healy, Paul Kehoe, Kathleen Lynch, Pádraic McCormack, Dinny McGinley, Finian McGrath, Paddy McHugh, Liz McManus, Arthur Morgan, Breeda Moynihan-Cronin, Catherine Murphy, Gerard Murphy, Denis Naughten, Dan Neville, Caoimhghín Ó Caoláin, Aengus Ó Snodaigh, Fergus O'Dowd, Jim O'Keeffe, Brian O'Shea, Jan O'Sullivan, Willie Penrose, John Perry, Ruairi Quinn, Pat Rabbitte, Seán Ryan, Trevor Sargent, Joe Sherlock, Emmet Stagg, David Stanton, Liam Twomey, Mary Upton, Jack Wall)
Tellers: Tá, Deputies Kitt and Kelleher; Níl, Deputies Kehoe and Stagg.
Question declared carried.
As it is after 9 p.m. I am required to put the following question in accordance with an order of the Dáil of this day: "That the Health (Nursing Homes)(Amendment) Bill 2006 Fourth Stage is hereby completed and the Bill is hereby passed."
The Dail Divided:
For the motion: 62 (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 Dempsey, John Dennehy, Jimmy Devins, John Ellis, Michael Finneran, Seán Fleming, Pat Gallagher, Jim Glennon, Noel Grealish, Mary Harney, Seán Haughey, Máire Hoctor, Joe Jacob, Cecilia Keaveney, Billy Kelleher, Peter Kelly, Tony Killeen, Séamus Kirk, Tom Kitt, Conor Lenihan, John McGuinness, Micheál Martin, John Moloney, Donal Moynihan, Michael Moynihan, 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, 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: 48 (Bernard Allen, Dan Boyle, James Breen, Pat Breen, Tommy Broughan, Paul Connaughton, Paudge Connolly, Joe Costello, Jerry Cowley, Seymour Crawford, Bernard Durkan, Olwyn Enright, Martin Ferris, John Gormley, Séamus Healy, Paul Kehoe, Enda Kenny, Kathleen Lynch, Pádraic McCormack, Dinny McGinley, Finian McGrath, Paddy McHugh, Liz McManus, Arthur Morgan, Breeda Moynihan-Cronin, Catherine Murphy, Gerard Murphy, Denis Naughten, Dan Neville, Caoimhghín Ó Caoláin, Aengus Ó Snodaigh, Fergus O'Dowd, Jim O'Keeffe, Brian O'Shea, Jan O'Sullivan, Willie Penrose, John Perry, Ruairi Quinn, Pat Rabbitte, Michael Ring, Seán Ryan, Trevor Sargent, Joe Sherlock, Emmet Stagg, David Stanton, Liam Twomey, Mary Upton, Jack Wall)
Tellers: Tá, Deputies Kelleher and Kitt; Níl, Deputies Kehoe and Stagg.
Question declared carried.