Dáil debates
Tuesday, 16 November 2010
Nursing Home Care: Motion
7:00 am
James Reilly (Dublin North, Fine Gael)
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I move:
That Dáil Éireann:
welcomes the publication of the investigation by the Office of the Ombudsman entitled, "Who Cares? – An Investigation into the Right to Nursing Home Care in Ireland", and notes with serious concern:
— that the Ombudsman encountered unprecedented opposition and a lack of co-operation from the Department of Health and Children and the HSE in the course of conducting this investigation;
— that thousands of old people may have been deprived of their legal entitlement to nursing home care, under the Health Act 1970, for over four decades;
— that the Government has consistently failed to clarify entitlements to nursing home care, causing huge frustration and anxiety among older people and their families;
— that vulnerable older people have been forced to seek care in private homes, at huge cost to themselves and their families;
— that the State currently faces more than 300 legal actions from people seeking compensation for costs incurred from private nursing home care;
— that the cap on the fair deal scheme may force older people to pay for private nursing home care yet again;
— that in 2004 the State was forced to repay nursing home charges it illegally imposed on thousands of older people who held medical cards; and
— the persistent refusal of the Government to acknowledge the findings of reports published by the Office of the Ombudsman, and the serious implications this has for the future effectiveness of the Office of the Ombudsman; and
condemns the Department of Health and Children for its failure to cooperate adequately with the Ombudsman's investigation and calls on the Government to clarify the legal position regarding nursing home care.
I propose to share time with Deputies Noel Coonan, Seymour Crawford, Michael Creed and Michael Ring.
James Reilly (Dublin North, Fine Gael)
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The purpose of this motion is to highlight unacceptable interference with the role of the Ombudsman. As the motion states, the Ombudsman encountered unprecedented opposition and a lack of co-operation from the Department of Health and Children and the Health Service Executive, HSE, in the course of conducting her investigation into the right to nursing home care in Ireland, an issue that concerns many families in this country.
I will first refer to some aspects of the Ombudsman's report and then discuss the first paragraph of the amendment proposed by the Minister. In response to this report the Department put forward a multiplicity of charges against the Ombudsman. They were that the Ombudsman exceeded her jurisdiction in undertaking the investigation; that she failed to abide by fair procedures, particularly with regard to the provision of a draft version of the investigation report; that she displayed prejudice and objective bias in the course of the investigation, which is a very serious charge; that she displayed arrogance in purporting to interpret the law, although when it comes to displays of arrogance this Government has been more guilty of it than any other body of which I am aware; and that the Ombudsman purported to deny the State bodies concerned the right to have litigation determined by the courts. In effect, the Department and the HSE are saying that the Ombudsman undertook this investigation in bad faith.
The Ombudsman states that her motivation to produce this report was to highlight the very significant difficulties faced over several decades by families seeking to make arrangements for long-term nursing home care for a family member; to represent, in many instances through their own words, the distress and upset, including financial, of people who complained to the Office of the Ombudsman over the years about nursing home care; to highlight the inadequacy and tardiness of the State's responses to these problems; to raise the issue of whether, and, if so, how, people adversely affected should have some recognition of having been failed by the State; and to raise wider questions of governance prompted by the practices highlighted in this report.
The Ombudsman said she is satisfied that the investigation is within the jurisdiction conferred on her office by the Oireachtas and that the requirement to provide relevant material served on the HSE and the Department constitutes a reasonable exercise of the statutory powers conferred on the Ombudsman. She stated that the challenge by the Department and the HSE to the Ombudsman's jurisdiction in this case is the most serious mounted against the Office of the Ombudsman since its establishment in 1984.
Fine Gael believes this challenge raises important issues both about the independent role of the Ombudsman and how she should discharge that role. From time to time there might be conflict between the Ombudsman and the HSE, but the Minister or any Department or agency of the State must not be allowed to frustrate statutory investigations. I hope the Minister will comment on this. Knowing what one's entitlements from the State are and being able to count on being given one's entitlements is a basic right, a right that is more important in the case of vulnerable groups such as older people. As the Ombudsman pointed out, at the heart of the report is the question of whether there is an enforceable entitlement to be provided with long-stay nursing home care by the health board, now the HSE. The Department and HSE contend there is no such right, while the Ombudsman believes there is such a right. The resolution of this disagreement lies in a careful analysis of the relevant health service law and, in particular, section 52 of the Health Act 1970.
The Ombudsman found that the health boards failed to fulfil their obligations to older people under section 52 of the Health Act 1970 and that this failure came about with the full knowledge and agreement of the Department. As a result of this failure, many older people and their families suffered significant adverse effects over several decades. The Government's health strategy, Quality and Fairness - A Health System for You, published in 2001, highlighted the need for new legislation to provide clear statutory provisions on entitlement. According to the health strategy this would involve reviewing and updating existing legislation, rationalising the framework for entitlement - not eligibility - and ensuring that eligibility arrangements would be simplified and clarified. This has still not happened.
When the HSE was dealing with the illegal nursing home charges and the establishment of the nursing homes repayment scheme, the Minister could have clarified entitlements for nursing home care. Again, this did not happen. Fine Gael believes the law should be clear and that the State agencies should implement the law as it is, rather than as they would wish it to be. The legislation should state what it means and should not be open to interpretation. If resources to meet statutory duties are not available, the legislation should be amended to reflect practice. The eligibility for health and personal social services Bill is at very early stages of drafting and we have no idea when it will be published. If it were published, we could clarify much of what is in dispute in this matter. It is absolutely certain that clear legislation pre-empts litigation.
At present, the State is defending in the High Court more than 300 legal actions taken by or on behalf of people who claim that their right to long-stay nursing home care has not been honoured. The claims of the plaintiffs are based on the contention that they have been forced to take up expensive private nursing home care because of the failure of the HSE to provide public care. The defendants are the HSE, the Minister for Health and Children, Ireland and the Attorney General, and various combinations of these. These families are seeking compensation from the State for costs. To date, none of these cases has gone to hearing and judgment in the High Court. The Ombudsman points out that this is rather surprising given that many of the cases were commenced more than five years ago.
Settlements involving some level of payment to the plaintiffs have been reached in at least a dozen of these cases but details of these settlements have not been disclosed. Perhaps the Minister could tell us why, if there were differences in these cases and what they were. As the Ombudsman points out, the situation regarding settlements is confusing in that both the Department and the HSE argue that the plaintiffs' cases are without legal merit and that the plaintiffs have no entitlement to compensation. One can only wonder why, in these circumstances, the State is paying public money to people whose claims it believes to be without foundation. Fine Gael believes the Minister must clearly point out why and on what basis these cases were settled. Does the State consider that settling individual cases by way of compensation is less costly than the case going to a hearing in court? What about the hundreds of outstanding cases?
The issues at stake here are interference with the Office of the Ombudsman and the Ombudsman's ability to perform her duties, and clarity for those who seek care from the State. It might be the Minister's contention that the Health Act 1970 contains so many qualifications that eligibility and entitlement are unclear. Will the Minister confirm media reports that her view is that while people may be entitled to eligibility, it does not mean they are entitled to services?
In 1976 the Supreme Court ruled that Maud McInerney was entitled to long-term care because under the 1970 Health Act inpatient services included such care. The confusion, however, remains. The Minister's amendment to the motion states the nursing homes support scheme "addressed the previous inequity by equalising State support for those in public, private and voluntary nursing homes" and "legally defined eligibility for long-term nursing home care". It has not, however, defined entitlement.
People's entitlements when they seek long-term care must now be addressed. If the eligibility for health and personal social services Bill was brought forward to clarify this, it would also indicate the State's responsibilities and place a cap on further exposure.
Seymour Crawford (Cavan-Monaghan, Fine Gael)
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I welcome the opportunity to speak on this important motion regarding Who Cares? - An Investigation into the Right to Nursing Home Care in Ireland by Ms Emily O'Reilly, the Ombudsman.
I watched with horror the "Prime Time" programme in which the Ombudsman tried to put across the failure of the Government and the Health Service Executive to co-operate with her investigation while, from another studio, the Minister for Health and Children, Deputy Harney, refused to speak about the facts, dwelling on the present rather than the past. Clearly, by agreement with RTE, the Ombudsman was refused the right to reply. This seems to be the type of agreement the Minister is able to extract from RTE. The same happened several months ago when she sat in RTE listening to the first-half debate on "The Frontline" and was then allowed the freedom to answer without debate in the second.
The Ombudsman's report, unfortunately, bears out the facts that many in this House have been raising for some years. I will never forget the case in which a relatively young woman in her early 70s and her more elderly husband, both diagnosed with Alzheimer's disease, had to be put into a private nursing home as no other accommodation was made available for them. All their family members were married with their own family structures to maintain, leaving them in an extremely difficult position as the cost of care came to €900 a week for each parent.
I remember another case where I persuaded an aged lady to sell off a portion of the family property to fund her in a private nursing home. When she ran into some health difficulties in that nursing home, the services were not even prepared to listen to her immediate friends. When they brought in their own family doctor, the person was rushed to hospital. Unfortunately, the situation was too late and the poor lady passed away. Although the hospital and post mortem findings were quite significant, the subsequent inquiry never communicated with the friends responsible for calling the doctor concerned. They were not allowed advise the inquiry of what really happened. Subsequently, the inquiry went nowhere.
Why was the Ombudsman obstructed by both the Department and the Health Service Executive? Will the Minister explain why some cases are settled on the steps of the courts? Does the State believe settling individual cases by way of compensation is less costly than going to a full hearing? Considering the number of cases taken, why will the Minister not allow one case to proceed to legally clarify the position in this regard?
In May 2002, a close friend was placed by the health authorities in a private nursing home because no other bed was available. Her old age pension was part of the funding to that home. Her neighbour who went into a public nursing home later, however, received a refund under the refund scheme. No wonder there are legal cases.
There was a total failure in the legislation to clarify what people were legally entitled to or otherwise. There was a total failure by the Government to bring forward the necessary clarification in the law to ensure everyone was treated fairly. The subvention scheme which was available in the early part of the past decade was unclear. I dealt with nursing homes in the former western health board area which had received patients from the north-east health board area. Nursing home management simply could not understand the different regulations that were used between the two different areas.
When nursing homes increased their charges, the Health Service Executive under the Minister, Deputy Harney, refused to increase the subvention before the long-promised nursing home support Bill was introduced. This has resulted in nursing homes following patients for debts they never personally incurred because it was the health authorities that placed them in those homes, not a relative. Can one imagine a person 101 years of age being threatened with court proceedings?
For years I have called for the eligibility for health and personal social services Bill to be introduced to bring clarity to what people are entitled to and eligible for. I call again tonight for this Bill to be introduced as a matter of urgency. So far the nursing home support legislation has been of some benefit to families; this year it will come in at the proposed cap of €970 million. However, the Health Service Executive is winding down some of its public health beds with the ratio turning much more to the private sector. Our aging population is entitled to know what the future holds for them.
The Minister may believe she is above questioning by the Ombudsman. She will, however, soon be accountable to the people. Fine Gael believes this report raises important issues concerning the Ombudsman's independent role and how she discharges it. From time to time, there may be conflict between the Ombudsman and the Health Service Executive. However, the Minister for Health and Children, her Department or any other agents of the State must not be allowed to frustrate statutory investigations. The Minister must advise us on this.
Fine Gael believes the law should be clear and that State agencies should be implementing the law as it is rather than as they would wish it to be. Legislation must state clearly what it intends instead of being open to interpretation. If resources to meet statutory duties are not available, legislation should be amended to reflect that practice.
While I accept the eligibility for health and personal social services Bill is at an early drafting stage, there is no excuse for the continuing delay in its publication.
Michael Creed (Cork North West, Fine Gael)
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I congratulate the Ombudsman for producing this detailed report, which meant her office having to travel a difficult road, and for being fearless in that respect. As her report states, she did encounter hostility from both the administrative and political side of Government. That is hugely regrettable. Coming as it does hotfoot on a previous report by the Ombudsman into the Lost at Sea case, it reflects poorly on the Government. It also indicates a pattern of behaviour by this Government that is contemptuous of the Office of the Ombudsman when it seeks to vindicate the rights of individual citizens. That is a regrettable departure upon which the Minister should reflect seriously. When it was established under legislation in the 1980s, the Office of the Ombudsman enjoyed the support of all sides of this House. Clearly, however, the actions of the Minister and the Government, both in the context of this report and the Lost at Sea report, reflect a clear departure in respect of the Government's policy towards the Office of the Ombudsman.
It is interesting to note that there are no Green Party representatives in the Chamber. When the Lost at Sea report was raised initially the Government attempted to bury it, but at the insistence of the Green Party it was referred to the Committee on Agriculture, Fisheries and Food. Regrettably, however, the approach of "might is right" operates in committee. An inbuilt Government majority means that, having gone through the contents of that report in forensic detail, the committee divided along party political lines. It is regrettable that there were no Green Party members on the committee. The Fianna Fáil majority on the committee voted to reject entirely the findings of the Ombudsman's office.
As we can now see, at least initially, a similar report from the Government reflects the combined thinking of Independents, Fianna Fáil and the Greens. That is an alarming departure. If this was a functioning Legislature we should leave our party political hats outside the door in order to bring our distilled wisdom to bear on this report, as well as making recommendations which would have the imprimatur of a committee of this House acting in unison. Because of the Whips system, however, there is an immaturity beyond belief which demonstrates the Legislature's lack of self confidence. We hide behind political Whips while serious work, such as these two reports, are jettisoned for party political reasons. That is hugely regrettable.
In anticipation of this debate, I tabled two questions for the Minister for Health and Children. Unfortunately, however, for some unknown reason, the Ceann Comhairle stated that the Minister had no official responsibility to Dáil Éireann for these matters as they anticipated the debate on Private Members' business scheduled for this week. The questions concerned the amount of compensation paid and the number of legal cases pending. I cannot understand why the Office of the Ceann Comhairle believes that providing such information in advance of this debate would in some way seriously undermine our capacity to have a rational discussion, or in some way transgress the rights of Members or of the Minister to protection.
As a Member of this House I am fed up of being abused by a process which means that I cannot carry out my duties as an elected Member to hold Ministers to account. This system is broken beyond repair. It requires radical surgery to make this a functioning democratic Legislature whereby we would not just rubber stamp decisions but would hold Ministers to account. That is a clear weakness in the current system.
This report is essentially about section 52 of the Health Act 1970 and whether rights to nursing home care as enshrined in that legislation were denied. I was doing a quick calculation and I think that reflects on the management of 13 different Governments and possibly more Ministers for Health in that period. In so far as we on this side of the House may have been implicated in the denial of those rights, I wish to apologise personally to people who were adversely affected. The Ombudsman's report clearly states that there was a denial of entitlement. Given the precarious nature of our public finances, it is fortunate that the Ombudsman did not go down the road - as she did in the previous report on the Lost at Sea scheme - of outlining a solution. The hardship that was suffered by the denial of these rights caused serious financial pain to those who were adversely affected. It is a reflection on the maturity of the Office of the Ombudsman that it has not gone down that road, but asked this House to reflect on the matter. If we had displayed some degree of maturity in reflecting on an Ombudsman's previous report, that would have been the way to proceed. Regrettably, however, we have not done so, which is a big problem.
The HSE assumed the responsibilities of eight former health boards, but it is now beyond redemption. The Minister knows it is impossible to get any accountability through representations by individual Members via parliamentary questions. For instance, when I sent in a query nearly two months ago about a development in my constituency, a senior manager in the HSE South replied stating this matter would be dealt with as a matter of urgency. Two months later, however, I have still received no response. The same body issued an unwritten edict to senior staff in the throes of the 2007 general election to say that no bad news was the emanate from the HSE South during that campaign. That is a fact, so the HSE is beyond redemption. It betrays the good efforts of thousands of its frontline staff, in addition to well-intentioned middle management. The sooner the HSE's structure is dismantled the better. We should start again with a blank canvas to put in place a public administration for our health services that captures the abilities of those who work there. It should enable them to deliver services more efficiently.
The report accuses the HSE and the Government of obstruction and unprecedented intervention. The Government amendment asks the House to note that the jurisdiction of the Ombudsman relates primarily to administrative actions and does not encompass issues such as Government policy, legislation passed by the Oireachtas, the conduct of litigation by the State and the wider governmental process. In her reply to this debate, the Minister should explain how the Ombudsman can carry out her duties if she is not entitled to assess how those charged with implementing legislation carry out their administrative functions. How can the Ombudsman conduct her functions if she is not in a position to assess how administrators interpret legislation passed by this House? She is not seeking to direct or overturn legislation, but in the administrative process is seeking to see if legislation is being properly implemented.
Deputy Crawford referred to the interview given by the Minister when she appeared on the "Prime Time" television programme. The Minister wanted to draw a line under everything that happened up to the introduction of the nursing home subvention scheme. The scheme is welcome and has delivered some clarity to the situation, but it was as if we should not hold anybody to account for anything that had happened prior to that date. While the Minister and the Government may wish that to be so, it simply cannot be the case. If citizens were previously denied their entitlements and legal rights just because we addressed the matter from a specific date, it does not mean that discrimination did not happen or that those responsible should not be held to account.
The Government amendment goes on to state that Dail Éireann notes with concern the way this particular investigation was undertaken and in particular the failure to follow fair procedure. Time does not allow me to elaborate on all of the issues I would like to address in respect of the report before us. It would be preferable to proceed by referring this report to a committee of the House to investigate it in a forensic manner. The experience of referring the Ombudsman's report on the lost at sea scheme to a committee of the House was futile and meaningless. I sat through every deliberation of the committee for many weeks, with all parties given an opportunity, but the fact that deliberations of the committee were thwarted by a simple vote that was railroaded through by a Government majority raises the question of what the purpose is here. The Government sees this House as a nuisance and an interference in its divine mission to govern. That mission will come to an abrupt end shortly but we need to reform the way this House does business. It is not serving the best interests of the citizens we represent. It will seriously undermine the Ombudsman's office if it does not take this report seriously.
Michael Ring (Mayo, Fine Gael)
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I compliment Deputy James Reilly on tabling this Private Members' motion. It is sad that it is before the House. Many years ago, I was Fine Gael's deputy spokesman on health. One of the issues I dealt with was older people. I raised this issue on a continual basis in regard to the way the health boards were treating the elderly in the country. I refer in particular to those who had medical cards and were entitled to public nursing homes but the State was unable to provide beds for them. Many found it difficult to look after their loved ones, they found it difficult when they had to go into the private sector and they found it difficult to raise the necessary finances. Serious injustice was done to these people.
Then, people who were in private nursing homes had money paid back because the State wrongfully took this money from them. People have been hard done by and there are many cases in the Four Courts awaiting adjudication. I cannot understand why these have not been adjudicated on by now. Some cases have been settled and we should know what ones have been settled and why. Many feel injustice was done.
I compliment the Ombudsman on her bravery and guts. The Minister should bring in the officials in her Department who did not co-operate with the Ombudsman. I can understand how the Ombudsman feels on this point. I thought this House was part of a democracy and that its wishes would be obeyed by civil servants and the HSE or the health boards as they were then. People within the health service think they are more powerful than the Minister, who has allowed something to happen that should never have happened. The Minister of State, Deputy Áine Brady, is an honest, decent woman - no more than the Minister - and both mean well. However, they have let down the people of this country. They handed over the power of their office to individuals who never stood for election and who do not seem to understand democracy. I will give a simple example concerning the Minister of State, Deputy Brady, who means well. The Government has a national policy on home help. In the constituency of Mayo, where I come from, the HSE has disobeyed the Minister's policy and has cut hours even though the Minister of State has informed me that, under the national framework, they should not be doing so. They continue to do so. When I look for information from the HSE, I cannot access it.
I am glad there is the Ombudsman, who is independent of this House as an outside agency. Sometimes I get annoyed with the media because they criticise Deputies for tabling Dáil questions and tell us they cost €200. I do not see how a Dáil question could cost €200 when we do not get answers to them. The Minister of the day will send me a reply saying the Minister has no responsibility for the HSE. If it is costing €200 to send this message, it is no wonder the country is in the state it is in. Will the Minister do anything about the HSE in regard to queries I have tabled? Today, I asked the Minister and the Ombudsman about Dáil questions, and letters I sent to the chief executive officer in Mayo that have not been replied to since April.
Yesterday, a constituent of mine criticised me for not responding on the subject of a loved one whose home help hours were cut. The home help had to go across the fields to bring bread and milk to that person and the hours of home help were cut. I wrote to the HSE and tabled Dáil questions. I did not receive an answer from the Minister or the HSE. I have now sent all of the correspondence to the Ombudsman to see if she can elicit a reply. I thank her for her courage and guts. I am sure she sees the frustration of Members on this side of the House. Dáil Éireann is supposed to be about accountability. People died in this country to provide this Parliament. Over the past number of years, the situation has developed where people outside dictate to the House. Questions to the Department of the Environment, Heritage and Local Government are referred to its website. At the Department of Health and Children, one is told the Minister has no responsibility. At the Department of Education and Science, staff are too busy to compile the information. The Leas-Cheann Comhairle or the Ceann Comhairle must sit down with the leaders of the parties. We must do something about reforming this House because it means nothing.
Brendan Howlin (Wexford, Labour)
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We had a debate on that matter this time last week.
Michael Ring (Mayo, Fine Gael)
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I wanted to highlight that point.
Michael Ring (Mayo, Fine Gael)
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No, there will never be reform of this House until something is done and the people come onto the streets.
James Reilly (Dublin North, Fine Gael)
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A change of Government.
Michael Ring (Mayo, Fine Gael)
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When we get into government, I hope we will bring real reform. Fine Gael is talking about disbanding the HSE, the biggest monster we have ever created. Talk about monsters that frighten children in November, this is the greatest monster and it is costing us billions to keep it alive. No one knows what is going on. Last night at a public meeting, one of the home help women told me she received letters to attend to two people but both were dead. It is no wonder the HSE is in disarray.
Regarding the Ombudsman's report, I hope the Minister will answer some of the queries raised. It is a sad day in this country when we depend on the Ombudsman, an independent person, to investigate legislation in this House and what a State agency is doing. That should be done within the confines of the House. We should have the powers to do so, perhaps at the level of parliamentary committee, and it is wrong that we do not. This must be dealt with.
People who depend on the State have been very badly let down. People were entitled to beds in State homes but beds could not be found for them. The State seemed to wash its hands of them even though the legislation was clear that anyone with a medical card over 65 years of age was entitled to a bed. The State let them down and if the State was not able to cope or provide beds, it should have helped them to get beds in the private sector. These people have been let down by the Government, by this Parliament and by the HSE. Something needs to be done so that it never happens again.
I remember visiting a State nursing home in Belmullet. Someone tipped me off that things were not right. When I came into this House after visiting it, I contacted the health and safety authorities. They visited the home and threatened to close it down. Someone broke a leg there. After I raised the matter here, the health board rushed out and spent €600,000 developing it. I should not have to raise that. People should not have been left in those conditions. The health board itself could not get down there quickly enough with the spin and to get the work done. It tried to castigate me on the grounds that I should not have raised the matter. I should have raised it. Elderly people should not have been left in those conditions. What has gone on with the elderly of this country is wrong. I hope the Minister will respond to the Ombudsman's report and that what happened in recent years will never happen again.
Mary Harney (Dublin Mid West, Independent)
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I move amendment No. 1:
To delete all words after "Dáil Éireann" and substitute the following:
"— notes the introduction by the Government of the Nursing Homes Support Scheme which legally defined eligibility for long term nursing home care and which addressed the previous inequity by equalising State support for those in public, private and voluntary nursing homes;
— notes that the HSE has received almost 16,500 applications for the Fair Deal Scheme to date, of which over 12,250 have been approved with other applications continuing to be processed on a daily basis;
— notes that the budget in respect of long term care for 2010 for the Fair Deal Scheme and for those remaining in public long stay facilities and receiving subvention in private facilities is over €979 million in 2010;
— recognises that eligibility for in-patient services under section 52 of the Health Act 1970 has always been subject to, inter alia, the availability of resources;
— notes that the jurisdiction of the Ombudsman relates primarily to administrative actions and does not encompass issues such as Government policy, legislation passed by the Oireachtas, the conduct of litigation by the State and the wider governmental process;
— notes that the representations submitted to the Ombudsman set out very clearly the Minister's views on extracts from the draft report and were endorsed by the Government;
— notes with concern the way this particular investigation was undertaken and, in particular, the failure to follow fair procedures;
— notes this Government's commitment to services for older people which, as well as the introduction of a national scheme of financial support for long term residential care (Fair Deal) and the introduction of new standards, regulations and inspections for designated centres for older people, has also seen an additional €200 million invested in community services such as home help, home care packages, meals on wheels and day/respite care; and
— supports the Minister's plans to continue to develop and improve services for older people."
Mary Harney (Dublin Mid West, Independent)
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I robustly and strongly defend the role of the Department in the investigation by the Ombudsman. Section 4 of the Ombudsman Act 1980 states:
Subject to the provisions of this Act, the Ombudsman may investigate any action taken by or on behalf of a Department of State or other person specified in Part I of the First Schedule to this Act (being an action taken in the performance of administrative functions) where, upon having carried out a preliminary examination of the matter, it appears to the Ombudsman....
Under legislation, the Ombudsman is not entitled to interpret the law or to make the law, nor is the Ombudsman entitled to the State's legal strategy. I thought it was interesting that my Department was asked for that by the Ombudsman following the enactment of the Nursing Home Support Scheme Act. She wrote to the Department on 30 July 2009 seeking certain information. The legislation had been passed in June 2009. That was refused on the strong advice of the Attorney General on the basis that the Ombudsman was outside her jurisdiction. The Department took issue with two matters on the advice of the Attorney General. I emphasise that because in her report the Ombudsman criticised the Department for failing to take the legal advice on charging medical card holders that were in public nursing homes, yet she went on to criticise the Department for being overly reliant on legal advice. You cannot have it every way.
The first point on which we took issue is that we said we could not interpret section 52 of the 1970 Act as we were not free to do that. The second point is that we could not inform the Ombudsman of our legal strategy on cases against the State. It is not just an administrative matter. The Minister, in defending actions on behalf of the State, does so in her executive capacity. Every citizen is entitled to protect their legal strategy under the Constitution. We would totally undermine our position if our legal strategy was to be the subject of an investigation by the Ombudsman. In her own report-----
Michael Creed (Cork North West, Fine Gael)
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On a point of order.
Mary Harney (Dublin Mid West, Independent)
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Yes, I will take the point of order.
Michael Creed (Cork North West, Fine Gael)
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Will the Minister outline what was the legal strategy?
Brendan Howlin (Wexford, Labour)
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That is not a point of order.
Michael Creed (Cork North West, Fine Gael)
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Was it more to do with financial constraints than any legal constraints?
Brendan Howlin (Wexford, Labour)
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The Deputy had a long innings. He should please allow others to be heard in this House without interruption.
Michael Creed (Cork North West, Fine Gael)
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The Minister is hiding behind legal excuses.
Mary Harney (Dublin Mid West, Independent)
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On page ten of the report the Ombudsman indicates a list of things she requires, including the actions of the Department and the Health Service Executive in response to legal proceedings initiated on behalf of patients, information on legal proceedings and documentation. On page 109 of the same report she indicated that she did not want that. She said the present investigation did not extend to include the manner in which the Department and the Health Service Executive had been handling the litigation. It is very confusing. That was the big point of difference.
The Ombudsman, as an officeholder of the State is entitled to her good name and the presumption of good faith. As an individual she is entitled to that too, but so are civil servants, both as office holders and individuals. I stand fully behind the civil servants in my Department in the office for older people. They are people of integrity who are completely committed to the cause of older people but they work within the law and the resources that the Oireachtas makes available. They are not free to interpret the law nor do they make the law. I will not deal with the issue tonight as it goes beyond nursing home care but the Ombudsman had a lot to say about the role of the Executive vis-À-vis Parliament and the role of Ministers vis-À-vis civil servants. Again, that is completely outside her remit. I say that on the strong advice of the Attorney General.
Michael Creed (Cork North West, Fine Gael)
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The report makes for uncomfortable reading.
Mary Harney (Dublin Mid West, Independent)
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No. All officeholders must live by the Constitution. We all have clearly defined powers. Section 5 of the Ombudsman Act states that the Ombudsman may investigate a matter but if the person affected by the action has initiated any court civil legal proceedings and the proceedings have not been dismissed for failure to disclose a cause the Ombudsman is precluded from investigating the case. In spite of that, the case of Mrs. B, who is the centrepiece of the investigation, is currently before the High Court. That was made very clear to the Ombudsman. In a letter of 29 August the Ombudsman said she would not deal with litigation yet that case is the centrepiece of her report. She mentioned many other cases that she would not investigate but she would presume she could rely on the complaints. If we got complaints and did not investigate them nobody would take us seriously. The issue is one of law. The Ombudsman's role is clear in the law. On the advice of the Attorney General to me, my Department and to the Government, the Ombudsman went way outside her authority on the investigation.
I wish to deal now with the substance of the report. The Ombudsman said we failed to bring legal clarity on the eligibility of older people to care. The nursing home support scheme could not be clearer. It has now supported 12,200 people in long-term care. Two hundred individuals have been refused care. Relatively speaking, that is a very small number. One of the officials involved in the nursing home scheme was speaking today at an OECD meeting because of the interest expressed in the scheme. The British Government has asked for a copy of the scheme and Norwegians have come to this country to ask about it also. Many countries see our long-term support scheme as not only sustainable and fair but one they would like to mirror in their own countries. In Britain 60 old people a day sell their homes to pay for long-term care.
The reason we introduced the nursing homes support scheme is that the system we had was grossly unfair. There is no doubt about that. I said that when I brought the legislation through this House. To be fair to parties opposite, with the exception of Sinn Féin, the nursing homes support scheme was broadly supported. I accept Deputies had issues with it but it was broadly supported as it was seen to be a reasonable attempt to introduce a system of support for older people and their families that was fair to families. Heretofore, if one were in a public nursing home 90% of the cost of care was paid regardless of one's means. If one were in a private nursing home 40% of the cost of care was paid. Now we have a nursing homes support scheme that treats everyone equally.
Everyone is entitled to an assessment of his or her need. That assessment of need is done on the same basis for every single individual. In the case of the 200 applications which were refused, some decisions were made on the basis that applicants were not regarded as people who were in need of or suitable for long-term care. Everyone has a financial assessment, again, based on his or her means. Everyone gets support on that basis. Nobody pays more than 80% of his or her disposable income, whatever that is. Everyone is entitled to keep 20% of his or her income.
I visited three nursing homes in the past week. Some of the correspondence we receive from families show considerable support, especially from those who were supporting parents or loved ones in nursing homes for many years. Nursing home care was completely unaffordable for many people, some of whom had to sell homes, remortgage or take out big loans. In the current financial circumstances I cannot imagine what that would have been like.
In 1993 the then Minister, now Leas-Cheann Comhairle, Deputy Howlin, introduced the nursing home subvention scheme as an honest attempt to support people in private nursing home care. The allocation for the scheme was £5 million in 1993. It rose to €350 million in its final year of operation. The subvention is still being paid to some people, on the basis that no one was going to be adversely affected, but nobody new can avail of it. This year, between the subvention and the nursing homes support scheme we are spending just under €1 billion.
The Department's estimate of support required for the rest of this year is sufficient to meet the demand. Notwithstanding the financial pressures we are under, that money is being ring-fenced for next year. We are providing sufficient money. On the issue of eligibility and entitlement, in every country in the world entitlement is subject to a cap on resources. Nobody has infinite resources for health. Whether it is in the United States or in Europe a finite amount of money is available to fund health. Therefore, eligibility must be governed by the resource cap that is available in any year. This has been the policy of successive Governments, although it means waiting lists for services in many areas. The Ombudsman seems to take the view that it is never acceptable to have a waiting list. Nowhere in the world is there not a waiting list. It is not realistic in the context of a finite amount of resources. For the foreseeable future, however, we will be able to provide the resources required to meet demand.
Not only can older people get supports on the basis of their means and a single assessment of need, but nursing homes are all quality assured. Two nursing homes have already been closed down by the Health Information and Quality Authority, HIQA. Nursing homes are inspected against rigorous environmental and, more important, care standards. Everyone must have an individual care plan, which must be implemented. We are receiving considerable praise from nursing home residents and their families for our new standards of care. Last week, I attended the first inaugural awards for private nursing homes, presided over by Uachtarán na hÉireann. It was great to see people being enthused about the even-handed approach to inspection in the public and private sectors.
In the Ombudsman's report, she was critical of a number of factors, including what she calls marketing and spin. On page 129, the report unfairly refers to public servants being involved in political marketing and spin.
Michael Creed (Cork North West, Fine Gael)
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They are, particularly in the HSE.
Mary Harney (Dublin Mid West, Independent)
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No. We have an honourable public service. It serves Ministers of every ilk without fear or favour. That has been my experience and is the way it should be. Since civil servants have been criticised for devoting undue time to parliamentary questions, Adjournment debates and-----
Michael Creed (Cork North West, Fine Gael)
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They do not answer parliamentary questions.
Brendan Howlin (Wexford, Labour)
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Please, Deputy Creed should allow Members to address the House without interruption.
Mary Harney (Dublin Mid West, Independent)
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When people are critical of what they call the political role, they are referring to serving Parliament. In a democracy, civil servants should serve Parliament. That is what they are here to do.
Mary Harney (Dublin Mid West, Independent)
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Elected Members must decide what is in the public interest, civil servants are meant to serve us, the courts interpret the law and so on.
Michael Ring (Mayo, Fine Gael)
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They have not believed that for the past few years.
Mary Harney (Dublin Mid West, Independent)
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The Ombudsman is critical of what she calls the marketing and spin involved in calling this the fair deal. On page 103 of her report, however, she refers to the nursing home support scheme being so poorly drafted that it would be incomprehensible to the average citizen or even the reasonably well educated lay person. It is difficult to believe this is valid criticism of legislation that is doing so much good.
As the Government was so concerned by the Ombudsman going way beyond her remit in her report, I wrote a strong letter on the advice of the Government and drafted by the Attorney General. Regarding fair procedures, twice after the Ombudsman initiated her inquiry she made public statements - once at the MacGill summer school in July and previously during the nursing home conference - in which she set out her views. This was at a time when she was asking the Department to respond. Eleven times the Department asked for a copy of her report, to which we were entitled under the Act. Section 6 states: "The Ombudsman shall not make a finding or criticism adverse to a person in a statement, recommendation or report under subsection (1), (3) or (5) of this section without having afforded to the person an opportunity to consider the finding or criticism and to make representations in relation to it." The report was out for two hours before we received a copy. A journalist could ring at 10.30 a.m. last Wednesday and tell us the gist of what the report contained. That is incredible, but it is the story. Fair procedures were not followed, which is not something I say lightly.
I am a strong fan of having an Ombudsman for Children and an Ombudsman, Ms Emily O'Reilly. They are important roles in a democracy. In the case of the latter, she protects the rights of citizens who have been grievously dealt with administratively by Governments. No more than myself or any other constitutional officeholder, though, the Ombudsman must operate within the law as laid down. I make no apologies for vigorously and robustly defending on behalf of my Department the fact that it could not reveal the legal strategy we were adopting.
Some 400 cases have been taken against us and how quickly a case advances is a matter for the plaintiff. There have actually been 13 settlements, so I was wrong last week when I said 12. We are vigorously defending the Mrs. B case referred to in the report. Many of the cases against us are taken by estates where the individuals concerned have passed on. If we were to compensate, we reckon the amount involved would be approximately €7 billion. There is no pot of money from which to compensate people, so the compensation would come from today's services. We could not possibly countenance that, nor could anyone in my position.
Michael Creed (Cork North West, Fine Gael)
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Is the Minister's defence financial rather than legal? No one can say the law did not exist or that people did not know about it.
Brendan Howlin (Wexford, Labour)
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Deputy Creed should allow the Minister of State, Deputy Áine Brady, to contribute.
Mary Harney (Dublin Mid West, Independent)
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It was not illegal. It-----
Brendan Howlin (Wexford, Labour)
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I will not have the House reduced to a screaming session. If Members want to be orderly and listen to others, this is a Chamber of debate. The Minister of State without interruption.
8:00 am
Áine Brady (Kildare North, Fianna Fail)
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It is the Government's policy to support older people to live in dignity and independence in their own homes and communities for as long as possible. To this end, an additional €200 million has been invested in community services. Where support in this way is not feasible, we support access to quality long-term residential care where appropriate.
In line with the introduction of the fair deal scheme, the Government was conscious of the need to ensure that, once access to residential care was available to those who needed it, the quality of the care would need to meet rigorous standards. It is important that we have effective mechanisms in place to maintain and enhance public confidence in the delivery of quality services. The welfare and safety of each resident guides us in reforming the health service and we in Government place great importance on the policies, standards and legislation we are implementing.
We are all aware of previous failings and their impact on residents and their families. It is important that the lessons we learn from these few, but controversial and well publicised events will continue to inform our thinking in respect of long-term care. We must take all necessary measures to prevent such events recurring. Residents, their families and the public need to be reassured that an independent regulator is monitoring the care residents receive. The Health Act 2007 provides this, with a regime designed to reassure through an independent inspection and registration system for residential services.
On 1 July 2009, statutory responsibility was given to the Chief Inspector of Social Services, part of HIQA, for inspecting and registering nursing homes. This responsibility is underpinned by a comprehensive quality framework comprising the Health Act 2007, the Health Act 2007 (Care and Welfare of Residents in Designated Centres for Older People) Regulations 2009, the Health Act 2007 (Registration of Designated Centres for Older People) Regulations 2009 and the national quality standards for residential care settings for older people in Ireland.
The national standards consist of 32 standards focusing on the outcomes for the resident under seven groupings, those being, rights, protection, health and social needs, quality of life, staffing, the care environment and governance and management. These standards provide the basis for the best quality of care to be provided, monitored and enforced in all nursing homes. The standards acknowledge the unique and complex needs of the individual at the centre of care and require service providers to deliver a person-centred and comprehensive service that promotes health, well-being and quality of life.
We must also acknowledge that the standards are about much more than infrastructure. They are a blueprint for the provision of a higher standard of care delivered against a set of understood and developed criteria and are designed to improve and enhance care and to recognise good practice. All homes are subject to the same core standards in respect of quality and safety.
As formal standards are a key requirement for inspection and registration, all current residential facilities for older people must comply with both the national standards and the regulations underpinning them. If a nursing home is not in compliance, it may either fail to achieve or lose its registration status. Our overall emphasis is on promoting a high-quality patient-centred service delivered to those who require it and in the most appropriate setting. HIQA has registered more than 600 designated centres for older people in accordance with the Health Act 2007. To date, the authority has inspected all of these designated centres and carried out more than 900 inspections.
Recent years have brought significant changes to the nursing home sector. By introducing this new system of registration and inspection in 2009, we changed the landscape of the regulatory framework for all nursing homes. As the Minister of State with responsibility for older people, I am proud of the Government's achievements in this regard. We have a national system of financial support for all those assessed as requiring long-term residential care.
We have underpinned this with a quality assurance mechanism of standards and care and welfare regulations, subject to independent inspection by HIQA. Fundamental to all of these initiatives has been the principle that the resident and his or her family are at the centre of the service and all decision making.
This shows clearly the Government's commitment to older people, a commitment we are continuing and will continue to uphold.
John Cregan (Limerick West, Fianna Fail)
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I welcome the amendment as proposed by the Minister, Deputy Harney, and I am glad of the opportunity to say a few words on this important issue.
At the outset we should remember that we are discussing health and the Department of Health and Children. We have to factor in the budget that is available and the pay bill required to pay the many people who provide their services. Then we are left with an amount of funding which must be quantified and controlled in good times and bad. The Department of Health and Children is in competition with other Departments for scarce finance, and we must start from that premise.
Given the huge demands on that Department it is very difficult to provide adequate resources for all the different disciplines and demands. If we are to be honest in this debate, we should not lose sight of that. Care of the elderly has always been a core value of my party and of Government. In recent years where the economy was in surplus we increased the budget enormously and that should be acknowledged. We must look at the enormous increases that have been put into all the different health disciplines in those years, all very welcome, but each one must have a definite amount of money allocated to it.
We are talking specifically about the care of the elderly, nursing homes etc., and HIQA has been mentioned etc. I welcome the fact that HIQA, as the regulatory body, is doing its rounds throughout the country and is responsible for the registration of nursing homes. If we did not have Leas Cross and its likes, we would not require HIQA, and this must be acknowledged as well. Unfortunately that is the type of world we live in, however. If people did not break the law, we would not need gardaí on the streets. They do, and we must accept that. People have broken the law blatantly in the nursing home sector and we have to acknowledge that the regulatory position had to be corrected. HIQA is now doing that job. One can talk about bureaucracy, red tape etc., but ultimately there has to be a satisfactory regulatory body to ensure that the best care is given to the elderly when they are obliged to finish their lives in nursing homes.
I have seen both sides, both personally and in my constituency work, as regards people doing their best to cater for the elderly in their own homes. We talk about the home care packages, home help hours, visits from the community health nurse and all the different back-up services that we try to have in place. Of course we do not live in an ideal world, and we all wish to enhance those services more, but by and large the vast majority of people living in their homes are well-supported. As regards institutional care, there are both public and private facilities to be considered. On many occasions in this Chamber I have made criticism to the effect that discrimination was being applied when decisions were being taken about where elderly people were being placed. Those fortunate enough to get places in public facilities - I am not sure what the selection criteria were, perhaps social and medical circumstances - paid a small price for their keep. On the other side of the coin, a next door neighbour, perhaps, might have been unfortunate enough to have had to go to a private facility. I am not referring to the level of care. When a person had to go to a private facility, the bill was anything from €500 to €1,000 or whatever. There was the person's pension, a subvention paid by the State and in many instances there was a shortfall which had to be made up by the family. In many instances, such families were at the pin of their collar to put their children through college perhaps, and have some degree of quality of life. I greatly welcome the fact, therefore, that we have taken out the discrimination and now have a system that is equal and fair to all, whereby people may apply for the fair deal, and be assessed.
There will always be delays in certain cases, where people make applications. My understanding is that the applications are straightforward and are being dealt with relatively quickly. I support the view expressed by the Minister when she referred to public officials in the Department of Health and Children and also the HSE. We are probably too inclined to be negative as regards the work they do. The vast majority of public officials I meet in the course of my duties as a public representative, whether in local authorities, the HSE or Departments of State, are good people and do a good job. As in any part of society, one will find people who work more efficiently and better than others, and those who are more responsible than others. This is a fact of life and we have to put up with it. When one is dealing with an organisation of more than 100,000 employees, one must be sensible and realise there will be difficulties. One must also acknowledge the vested interests that exist within the system, which can create further difficulties. It is time, however, that we are honest about the debate.
Like everyone else, I should love to see more home help hours and home care packages. However, I can recall as a member of Limerick County Council that if one suggested to the county manager or officials at budget time that one wanted to make changes in what was being proposed, one would be asked to find the necessary savings someplace else. We have to be sensible here. There is a limited amount of funding and there are enormous demands on it. There are many disciplines in health provision that are all seeking parity with each other, if not more funding. The situation is very difficult.
However, as regards the arguments being put forward tonight, I am proud of the fact we have supported and enhanced the facilities that have been provided, which have ensured a better quality of care for the elderly, whether in their homes or in institutions throughout the country. I acknowledge that HIQA has a job to do, and this can cause difficulty perhaps for some groups at times. I had occasion to speak to the Minister about a voluntary respite centre in my home town, Drumcollogher, probably unique in the country, with 20 beds. That is not long-stay care, and the difficulty it faced was that it could not tick the boxes, effectively, since the criterion as laid down by HIQA was basically the provision of long-stay care. I welcome the fact that this is now being looked at and I am sure it will help other places as well as Drumcollogher's respite centre. We must accept the facts of life. We have nursing homes, we have to have standards and registration and by and large they are all providing a good and worthwhile service. However, we must also acknowledge that we are working within a particular budget which this Government and Minister has increased year on year, and substantially so over the last ten years.
No matter what government is in power, we must acknowledge that we have to draw the line somewhere. We have to give the best possible service, but we must be realistic as well. We have to live within our means. I support the amendment and commend the Minister on her work.
Jan O'Sullivan (Limerick East, Labour)
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I wish to share time with Deputies Ó Caoláin and Penrose.
Jan O'Sullivan (Limerick East, Labour)
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I commend Deputy Reilly on tabling this motion and giving us an opportunity to address what is a serious situation that arises for the people of this country. Having listened to the Minister, it is a critical issue that there is such a divergence of view between, on the one hand, the Government and Minister for Health and Children, Deputy Harney and on the other, the Office of the Ombudsman, the Ombudsman being the champion of the public with regard to administrative matters in regard to the law and the State and the various functions carried out by the State on behalf of the public.
The Minister gave a robust defence of her Department and the Government's perspective on this matter. However, the Ombudsman is not in this Chamber to defend her office and the manner in which she interpreted her duties under the 1980 Act. I believe it behoves us on the Opposition side to express in so far as we can where the Ombudsman and her office were coming from on this issue. It is a serious situation for the citizens of this country that we have this relative stand-off between Government and the Office of the Ombudsman. I do not believe this stand-off will end at the conclusion of this debate. This matter needs to be resolved in the interests of citizens. The public must have confidence that there exists an office that will stand up for their rights, one which Government will respect. There is a serious issue here in terms of Government respecting the Office of the Ombudsman.
This is against the background of other champions of the rights of the public being spanceled in various ways, including the dilution of the Freedom of Information Act, the spancelling of the Equality Authority and the abolition of the Combat Poverty Agency. We now have this disagreement with the Office of the Ombudsman and previous disagreement with it in regard to the Lost at Sea report. The public needs to be sure it has robust champions of their rights. This is a serious issue.
I would like to set out the detail in terms of where I believe the Office of the Ombudsman was coming from on this matter. The Ombudsman refers in her report to more than 1,000 complaints having been received since 1985. She is clearly responding to issues raised by members of the public with regard to the interpretation by the State of the 1970 Act, which is the legislation on which the Ombudsman primarily basis her report, as did her predecessor, in regard to peoples' rights to nursing home care. While at that time there was a different Minister and Ombudsman in office, essentially the issue was the same. The issue was not resolved.
At that time, the Government indicated it would introduce legislation in regard to eligibility. The point at issue was whether eligibility and entitlement are the same and whether eligibility grants a person entitlement. There was a commitment given that legislation would be introduced to clarify peoples' entitlements under the 1970 Act. It is, therefore, disingenuous of the Minister for Health and Children, Deputy Harney, to say that the Ombudsman was raising the rights under the fair deal legislation. What the Ombudsman was saying is that the rights of the 1970 Act supersede what is contained in the fair deal legislation and, therefore, she was essentially dealing with the 1970 Act, as was her predecessor. That is my interpretation.
The Ombudsman in her conclusions specifically states that the State, through its agencies, the health boards, HSE and the Department, has failed over many years to provide people with their legal entitlement to nursing home care. She further states that the HSE and the Department, with the support of the Government, have opposed the Ombudsman investigation and have made very serious charges against the Ombudsman's office. In effect, the charge is that the Ombudsman has acted in bad faith in its conduct of this investigation. The Ombudsman totally rejects these charges.
The Ombudsman looks at issues first raised by her predecessor in 2001 in a related investigation report to do with how we govern ourselves and concludes that the problems identified in 2001 have become more deep seated in the intervening decade. The Ombudsman concludes that the health board-HSE failed to fulfil its obligations to older people under the Health Act 1970 and that this failure came about with the full knowledge and agreement of the Department.
The Ombudsman makes clear that what she is referring to is rights under the 1970 Act. She also makes clear that she believes she does have a right to carry out this investigation. In effect, if this is not the case, and the Government is now contending that the Ombudsman does not have that right, this should have been dealt with after the 2001 report. The Ombudsman, Emily O'Reilly, states in her report that it was expected that it would be dealt with under eligibility legislation but that never happened. When it did not happen, the Ombudsman instigated this further report. I can see a legitimacy in the Ombudsman's argument that what she was doing was within the scope of her rights under the legislation and that she was dealing with the administration of legislation by the State, namely, the 1970 Act.
I would like to set out the history of what happened since the 2001 report and the issue then raised in regard to eligibility and entitlement. Mr. Kevin Murphy was Ombudsman at the time the Government stated it disagreed with the Ombudsman's interpretation of the law. It also said it would address the issue by way of the introduction of legislation. The Government amendment states that the Government recognises that eligibility for in-patient services under section 52 of the Health Act 1970 has always been subject to, inter alia, the availability of resources. That is a statement of fact. It is the Government's interpretation, which is still contended by the Office of the Ombudsman. This is where the situation rests until such time as legislation is implemented. The problem is that the legislation has not been brought before this Chamber.
I will set out the history since 2001. In November 2001, the Department of Health published Quality and Fairness - A Health System for You which proposed a general review of legislation on entitlement. The strategy as published by the then Minister stated that new legislation would be enacted to provide for clear statutory provisions on such entitlement and promised to introduce a Bill in 2002. The Travers report also addressed the issue of eligibility and entitlement. It stated that the advice which the Department had available from the Attorney General on the issue differed from the position put forward by the ombudsman. The Travers report stated: "The legal uncertainties in this complex area do not appear yet to be fully resolved." It went on to comment: "It is a remarkable feature of the health services in Ireland that such vast sums of money are expended on a system, the statutory basis for which is so confused and haphazard and where practise seems to dislocated from statutory theory."
We then had the 2003-05 strategy, Fair Access, which stated that the legislation would be high level objective No. 2 but it was not implemented. The strategy for 2005-07 again stated the legislation would be introduced but it was not. The latest strategy 2008-10 again states it will be introduced. The Bill was listed on the B list of the Government's legislative programme in summer 2006. In other words, it was a Bill in respect of which heads had been agreed and texts were being drafted. The expected publication date was given as late 2006. The Bill is now back on the C list and as such is going backwards.
The history of this issue is somewhat different than what the Minister presented here tonight. There is an absolute obligation on Government to produce that legislation.
Jan O'Sullivan (Limerick East, Labour)
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I have time to make only one final observation in regard to the fair deal legislation and the narrow range of rights contained therein. While good standards have been published, there is a perception that there is an agenda to close many of the public facilities rather than bring them up to standard.
Jan O'Sullivan (Limerick East, Labour)
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I deplore this because we should not move to a dependence on private facilities while closing public facilities. We need a good, proper public health service for the elderly as well as for the rest of the population.
Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Ba mhaith liom mo bhuíochas a ghabháil leis an Teachta Ó Súilleabháin.
If this State were not in the depths of the present economic crisis, I have no doubt that the issue dominating politics and the news media would be the major clash between the Office of the Ombudsman and the Government on the Ombudsman's report, Who Cares? - An Investigation into the Right to Nursing Home Care in Ireland. I have seldom seen a report by any statutory body so strongly critical of a Department and I have seldom seen such hostility to a statutory body as that shown by the Government to the Ombudsman.
The matter in question - the care of our older citizens - is extremely important for each and every one of us and the issue at stake - the role and future of the Office of the Ombudsman - is very serious for democratic accountability and civil rights in this country. The Minister for Health and Children and her Department, as well as the HSE, should have co-operated fully with the Ombudsman in her investigation. Instead, both the Department and the HSE refused to co-operate and the Ombudsman states in her report that it is her view that the Department and the HSE are in breach of their statutory requirements under the Ombudsman Act 1980.
This is a very serious charge on the part of the Ombudsman and I have no doubt that she is correct.
To make the matter even more serious, the Government, on 10 September 2010, informed the Ombudsman that it supports the position of the Department. The Government says the Ombudsman is acting outside her powers and that her actions constitute interference in the State's defence of several hundred legal actions. "An unprecedented intervention by Government" is how the Ombudsman has described the Government's treatment of her investigation and report. The Ombudsman states:
The HSE and the Department, with the support of the Government, have opposed this Ombudsman investigation and have made very serious charges against the Ombudsman's Office. In effect, the charge is that the Ombudsman has acted in bad faith in the conduct of this investigation. The Ombudsman rejects these charges totally.
It is unprecedented that any Government in this State should have deliberately caused such a serious confrontation with one of the principal watchdogs for the rights of citizens. The Government's approach represents an attack on the Office of the Ombudsman and, by extension, on the rights of citizens.
Why is this being done by Government? Clearly, it is being done to undermine a report that exposes attacks on the rights of citizens by successive Governments. The conclusions of the Ombudsman could not be clearer or more damning. The Ombudsman concludes that the State, through the Department of Health and Children, the former health boards and the HSE has failed over many years to provide people with their legal entitlement to nursing home care. She says that this failure has inevitably caused confusion, suffering and hardship. She finds that the health boards and HSE failed to fulfil their obligations to older people under the Health Act 1970 and that this failure came about with the full knowledge and agreement of the Department.
The key finding of the Ombudsman's report is that the obligations of the Health Act 1970 relating to nursing home care continue to have effect and have not been set aside by the Nursing Homes Support Scheme Act 2009. The latter Act legislated for the so-called fair deal scheme. That Act introduced a complex new system regarding support for nursing home care that is hugely problematic. I said on Second Stage of the Bill that I believed, as did organisations representing older people, that the Bill effectively removed the universal eligibility for a place in a public nursing home as provided for under the Health Act 1970. The Ombudsman's report clarifies the matter now. It exposes as false the Government's argument that universal eligibility never existed under the 1970 Act and it asserts that this eligibility still exists under the 1970 Act, notwithstanding the 2009 Act. I welcome that clarification.
The statutory eligibility to a bed in a public nursing home has never been vindicated in terms of the provision of the resources to make those beds available. This led to a huge reliance on the private nursing home sector and a complex and inequitable system of State subsidy for nursing home care. Undoubtedly, this had to change but I believe the Government, in doing so, went in the wrong direction. How wrong is now exposed in the Ombudsman's report. Of course, this is not the first such report. The previous Ombudsman published one in 2001.
We also had the report, Care for Older People, published by the National Economic and Social Forum in 2006. That report exposed how our system of care for our senior citizens is skewed towards residential options and how there is a funding bias towards nursing home subventions. It pointed to the lack of a general model of assessment and rehabilitation. The figures in the 2006 report - and I doubt they have changed much - show that the 5% of older people in long-stay care account for 55% of the overall budget for care of older people. Describing the barriers to the development of community services for older people, the report referred to "perverse investment incentives" and stated: "The present official funding of services is not consistent with the policy objective of encouraging community-based responses; considerable resources are invested in nursing home care responses, some of which are unnecessary and inappropriate."
The worst nightmare for the vast majority of older people is to have to leave their homes and enter long-term residential care. The best option is for people to be cared for in their homes with the help of their family, friends, neighbours and the health and social services provided by the State. The Minister claims that the Government is providing for improved support for older people in their homes but the reality is that current provision is totally inadequate. Under the disastrous regime of this Government, the cuts of recent years to home helps and other supports will be far exceeded in the forthcoming budget. Comprehensive rights-based legislation setting out the entitlements of older people to all forms of care in the home, in other community-based settings and in nursing homes is needed.
The sad reality is that the inadequacy of support for older people to spend their twilight years in their own homes means that more of them end up having to avail of expensive nursing home care. It means that more of them become ill and lose their independence. This short-sighted failure of successive Governments to provide the essential resources for community care has cost the State hugely in providing for long-term residential care. When it comes to residential care the Government, blind as usual to fairness and to real efficiency, downgrades public provision and gives preference to the more expensive private sector. It took years for proper standards to be applied to nursing homes by a Government more concerned with fostering the private nursing home sector as a lucrative business than with ensuring the best care for our older citizens. For example, we had the recent closure order on the private Upton House nursing home in Clara, County Offaly, which failed to meet HIQA standards. I had raised concerns about that facility in a parliamentary question only last year. At the same time, the HSE, because of the Government's privatisation policy, is attempting to close a public nursing home, Loughloe House, in Athlone, which it did not recommend to close. There is a clear pattern. It is not only a recommendation or the absence of one, but the privatisation agenda that is driving the Government and the HSE in carrying out their policies. The Sinn Féin Deputies fully support the motion before the House this evening and tomorrow and I urge all Deputies, on both sides of the House, to support it.