Peter Burke (Longford-Westmeath, Fine Gael)
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I thank the Minister of State for attending to take this matter. According to an article in the Irish Examinerby Caroline O'Doherty, 25,000 elderly patients may be held illegally in nursing homes or residential settings.

The article also mentioned that a new State agency, the Decision Support Service, was being established to oversee the Assisted Decision-Making (Capacity) Act.

When I read the article, I was reminded of a case in my constituency. I will not mention any names but I brought it to the attention of the Minister of State's predecessor. In this case, a gentleman had been living with his nephew and his nephew's wife from 2011. Unfortunately, he suffered a brain bleed in February 2014. He was subsequently admitted to hospital and on 18 February 2014 was deemed to require long-term care. At that time, there was significant pressure on bed capacity in the hospitals and, on 25 February, he was transferred to a nursing home funded by the State under the special delivery programme being run by the Government at the time. On 9 September 2014, the family was informed that the HSE was going to petition the courts for wardship. The family was not asked for its input on this but simply told about it. The family wanted their loved one back home to reside with them but the HSE would not allow it. The wife of the gentleman's nephew was a healthcare professional who was qualified to care for the gentleman and his condition, but the HSE still refused. It refused to let him out for christenings with the family or for Christmas. The gentleman had resided in this house. It was his life and he lived adjacent to his family farm. It had a hugely detrimental impact on the family. I was a county councillor at the time and I made representations to the HSE, but I was stonewalled and received no answers either oral or written.

When the gentleman was subsequently made a ward of court, the HSE, through the wardship process, initiated proceedings to sell his land. He had 50 acres of land. Again, there was no discussion with the family. It was on the basis of funding nursing care, even though the gentleman did not want to be there and his family did not want him to be there. Unfortunately, the gentleman passed away in October 2016. The HSE has put a charge on his property and land and is seeking to cash in on that through his estate. However, this gentleman was not allowed to be taken home by his family. The charge is driven by him being in care when there was a family that was fully capable of looking after him.

When I saw the article to which I refer, it struck a chord with me. The HSE wrote to me after a query was put to it by the Minister of State's predecessor. The HSE said that it was the understanding of its staff in the midlands area that it was not appropriate to transfer a person from a care location to another location while a wardship process was happening. Essentially, the HSE was acting illegally. It then clarified that, going forward, such a request would be considered on the basis of two criteria - the location of the person where the care would be provided and the necessary risk assessment in preparation. That is of no value to the family now. They are very distressed. I ask the Minister of State for a commitment that he will investigate this fully.

Jim Daly (Cork South West, Fine Gael)
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I will not comment on the specifics of the case because this is the first time I have become aware of it. However, I will give the Deputy and the House some general background information on wardships.

It is the policy of the Government to support older people to remain in their own homes and communities and maintain their independence for as long as possible. However, there will always be a cohort of people for whom this is not an option, despite the level of support that might be provided to them in their homes, and full-time nursing home care is best suited to meet their care needs. The nursing homes support scheme, also known as the fair deal, is a means-tested scheme of financial assistance for those who need long-term nursing home care, whereby participants contribute to the cost of their care according to their means while the State pays the balance of the cost. The aim of the scheme is to ensure that long-term nursing home care is accessible and affordable for everyone and that people are cared for in the most appropriate settings. Importantly, people can choose any approved nursing home, provided that it has availability and, of course, that it can cater for their needs.

There are circumstances where people require wardship when they are unable to make key decisions relating to their life choices. If such action is required, a key occasion will be when a person needs residential care services. In supporting such decisions and clarifying and resolving the person's finances, there is often a lengthy timescale involved. The HSE endeavours to support people through this time in the context of the agreement of the ward of courts, by addressing their care needs in the most suitable environment. In this context, some people will reside in residential care settings while the wardship arrangements are being organised. In many cases, an application for the nursing homes support scheme for funding to support long-stay care will be the outcome if long-stay care is the most appropriate care to be provided. The assisted decision-making legislation will provide a new set of arrangements in such cases once commenced and implemented.

While what I have just outlined reflects current practice, the Deputy may be interested to know that the Department of Health is currently drafting legislation to provide clarity on the issue of deprivation of liberty in nursing homes and other residential facilities. The deprivation of liberty safeguards will apply in circumstances in which it is proposed that a relevant person is to live in, or is already living in, a relevant facility and: he or she is or will be under continuous supervision and control; is not, or will not, be free to leave; there is reason to believe that the person lacks capacity to make a decision to live in the relevant facility. The Department recently carried out a public consultation on its draft legislative proposals and is currently analysing the submissions with a view to amending its draft heads of Bill as necessary. We intend to undertake this work as quickly as possible, while also ensuring that the system we are developing will work in practice and will provide sufficient safeguards in accordance with the requirements of international law, domestic law and relevant jurisprudence.

I thank the Deputy for raising this issue. The Assisted Decision-Making Capacity Act 2015 will ultimately replace the current wards of court system. This will provide a new set of arrangements once implemented.

Peter Burke (Longford-Westmeath, Fine Gael)
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I would be grateful if the Minister of State would confirm that he will investigate this issue or have the Department ask the HSE to conduct a review of the case. With regard to liberty and freedom in terms of bringing an elderly patient home, it is worrying for me to hear the HSE refer to putting the patient first when it said in correspondence to me that it was only clarified in early 2016, during pressures arising from winter pressures, that patients under the wardship process were allowed to go home. That is not really putting the patients first in an application process. Before that, debts were being run up and were being discharged against the patient, as in the case I outlined, and the family was fully capable and had the capacity to look after the individual in question. In addition, during the period in question, the HSE was not liaising with the family or giving them the key answers. It was appointing estate agents and auctioneers from the court to sell property to discharge debts when the family felt it could have this person at home. A number of files were opened up at that time. I am aware that one report was initiated through the elder abuse officer. It was fully found to be incorrect in favour of the family. Again, the family has no redress for that. It was being stonewalled by the HSE.

The article I mentioned points out that there is a fundamental issue here. We like to keep individuals in their homes but when a family has the capacity, setting and qualifications to care for an individual they should be facilitated to do that, rather than the individual being made to stay in a nursing home when a wardship process is under way.

Jim Daly (Cork South West, Fine Gael)
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The Deputy makes a fair, valid and what appears to be a reasonable point. He articulates it very well. I will look at the details of the case and I will ask for a report from the HSE on it. I will ensure that the Department oversees this process in order to ensure that we get to the bottom of the matter. The Deputy's concerns are valid and are very relevant to the work that is ongoing. We are trying to develop the Decision Support Service. It is a huge body of work to establish that in order that we might implement Assisted Decision-Making Capacity Act in full. I welcome the Deputy's input and his contribution today. I commit to undertaking the follow-up requested.