Friday, 17 December 2004
Health (Amendment) (No. 2) Bill 2004: Committee and Remaining Stages.
I move amendment No. 1:
In page 3, before section 1, to insert the following new section:
1. This Act shall cease to have effect on 1 March 2005.".
This legislation is bad and has not been thought out properly. Mistakes will be made in it and I have no doubt that the House will have to introduce further legislation to rectify them. My amendment acknowledges that the legislation is important in the short term but that it will not solve problems in the longer term. We need a comprehensive review of care for the elderly because we are only dealing with the tip of the iceberg. That is why it is vital that we accept this Bill but make it effective until 1 March 2005 when a new, more comprehensive Bill would come before us and we could deal with all the issues involved in that context.
This amendment would have the effect of causing a potential loss of resources to the health services or an additional demand on the Exchequer to compensate for the loss of income from charges. It is estimated that the income from these charges would lie between €2 million and €2.5 million per week and it would be irresponsible to delay the commencement of the Bill in these circumstances. A restriction on the commencement of the Act cannot be accepted. I cannot accept this amendment.
The Minister of State seems to be speaking about a different amendment. My amendment was very clear that the Act should cease to have effect on 1 March and would not have any monetary effect provided the Government brought forward legislation before 1 March 2005. I do not accept what the Minister says on this issue.
I do not see the necessity for this amendment. It is simply a drafting issue which has no impact on the meaning of the Bill. The Attorney General and a leading constitutional lawyer have signed off on the subsection and there is no value in amending the Bill in this way.
I move amendment No. 5:
In page 3, lines 28 and 29, to delete "(including any psychiatric ailment)".
I would be interested to hear Senator Glynn's comment on this as he worked in the psychiatric services. It makes no sense, and must border on discrimination, to include this reference in the Bill to people "including any psychiatric ailment". Why is a distinction made between people who have acute ailments and people with psychiatric ailments? Surely this is fundamentally wrong. It is axiomatic that a psychiatric ailment is an acute one and singling people out in this manner is retrogressive and surely runs counter to all modern legislation.
The objective of this subsection as drafted is to ensure that where an acute psychiatric ailment is involved the person should not be charged. This is the intent for all acute treatment in hospital. Psychiatric patients with an acute ailment should not be treated any differently from any other patients in a hospital with acute ailments. This principle has been enunciated in various policy documents produced by my Department. Accepting this amendment would have the effect of discriminating against those with psychiatric ailments.
I move amendment No. 6:
In page 4, line 17, before "Subject" to insert "Notwithstanding subsection (1) and".
In subsection (5) the Minister takes away or limits the right that would otherwise apply under subsection (1). We feel the Minister should be up-front and honest about what is being done. Therefore, we would like to see an express reference to subsection (1).
This amendment is unnecessary as its inclusion would have the same effect as the existing subsection. The Attorney General has signed off on this subsection as included in the Bill, and the amendment proposed is unnecessary and would not change the meaning of the subsection.
Amendment No. 8 could have the effect of undermining the provisions of the Bill which seeks to protect the State from having to refund moneys which could go back to 1976. This could have a very significant impact on the finances of the State and its ability to provide public services across the board, as well as the health services. This is a key aspect of the Bill and I am satisfied that the subsection as drafted is the best possible way to address this requirement which is vital to preserve the resources available to the Exchequer and is in the interests of the taxpayer. The subsection as drafted is the best way to protect the State and the only financially responsible way to proceed in this situation. I cannot accept this amendment.
I move amendment No. 9:
In page 4, line 45, after "days" to insert "in any one location".
My colleague, Senator McHugh, raised this matter on Second Stage. The Bill as drafted takes account of days in cumulative terms, which is unfair. The 30 day clock should come into play only when one spends 30 days or more in one place.
This amendment would have a significant effect on Exchequer financing. If patients who are treated in more than one institution in a year cannot be charged this would be a change in practice which would reduce the funds available from charges and therefore have a clear impact on the resources available for the provision of the health services generally. The intent of the Bill is to put the charging for long-term care on a solid legal footing and in doing so to preserve the resources available to the health service. I cannot accept this amendment.
As with the previous amendment, this amendment would have a significant effect on Exchequer financing for the same reasons. The intent of the Bill is to put the charging for long-term care on a solid legal footing and to preserve resources available to the health services which are badly needed; we want to get maximum benefit from and spend the resources as widely as possible. I cannot accept this amendment.
I move amendment No. 11:
In page 5, line 20, to delete "the".
Amendment No. 11 is technical, but amendment No. 12 states, "In page 5, lines 20 and 21, to delete "referred to in the definition of 'in patient services' in section 51." The definition of an inpatient service is circular, chasing its own tail. Subsection (11) begins by derogating from section 51, but in the course of the definition there is reference to what section 51 contains. On the one hand, there is a derogation from the definition in the section, but on the other hand, the Bill incorporates some aspects of it. We have tabled the amendment to find out which it is to be. The Minister and Government cannot have it both ways.
Amendment No. 11 could introduce a lack of clarity into the subsection, as it seeks to deal with institutional services regarding inpatient services in a different way from that defined in section 51 of the Health Act 1970. That could lead to confusion, and the Bill as drafted and signed off by the Attorney General and a leading constitutional lawyer remains the best way of dealing with the definition of institutional services required to deal with the issues of charging that the Bill seeks to address. I cannot therefore accept the amendment.
Amendment No. 12 is linked to the previous one. Once again, I consider that this amendment could introduce a lack of clarity into the subsection, as it seeks to deal with institutional services regarding in-patient services in a different way from that defined in section 51 of the Health Act 1970. I cannot accept that amendment either.
I am deeply unhappy with some subsections in section 1, something that I have expressed through the amendments. I am aware that we are constrained in this House from making any amendment that might have a financial bearing. Our hands are tied in that respect. However, it has been drawn to my attention by Senator Ulick Burke and others that in subsection (5) it is declared that, subject to subsection (6), the imposition and payment of a relevant charge is and always has been lawful. Surely that should be "is and from now on will be considered lawful"? Those who will pay the charges never did anything wrong. To suggest otherwise is a terrible slur on the people not involved in this area. The phrase "from now on" should have been used, since it would have made far more sense. The Government is trying to turn back the clock, despite it always telling us that we cannot do things backwards or in retrospect. This is a clear case of the Government rewriting history and turning it around. The Minister should say why the phrase "from now on" was not used instead of "always has been". This is a crazy scenario.
We tabled amendment No. 8 to section 1, which we have already discussed. On the imposition and payment of charges and rendering them both legal, those who made the payments never acted illegally. They were within the law, and there is no need to render their action lawful as the Government is now saying. However, the Minister should have rendered the demands for payment lawful, which is why we sought to address that issue in the amendment. Section 1 is fundamentally flawed, seeking to turn back the clock and put the blame on the patient, who had nothing to do with this debacle.
I believe this section is unconstitutional because it breaches people's property rights. The Constitution was referred to but I am not sure if that aspect was mentioned by anyone else; I was not here for the entire debate today. I have thought of comparisons. It is similar to applying income tax retrospectively, something that could not be done constitutionally. The same problem may arise again if someone challenges this section.
Currently, section 53(2)(a) of the original Act provides that the Minister for Health and Children may, with the consent of the Minister for Finance, make regulations providing for the imposition of charges for inpatient services in specified circumstances on persons without full eligibility. That includes those over 70 who have an automatic entitlement to medical care on age grounds, or unspecified classes of such persons. We have never said that older people did anything wrong; nor have we accused them of such. To say otherwise is wrong and irresponsible. It has recently been brought to our attention that there is a legal problem, and this Bill's purpose is to bring legal clarity to the situation. The practice of charging has continued since 1976. It is not as if we have intentionally been taking money from people while providing them with nothing in return. The money was taken in good faith and in part for the care that they were receiving. The people who were paying it would not have the same difficulty in doing so that some Members have expressed today.
I move amendment No. 12a:
In page 5, after line 33, to insert the following new section:
"3.—That following the passing of this Act that a review group would be established to look at the adequacy of the minimum amount retained by the patient.".
I raised this issue on Second Stage. The Irish Senior Citizens' Parliament has pointed out that the provisions in this section essentially leave the patient with a minimum amount out of his or her pension. I understand it amounts to approximately €35. The point has been made to me that if a person bought a newspaper and a packet of cigarettes every day, and perhaps had a pint of Guinness every other day, the €35 would be almost gone. There are many other things that people take for granted that a person might want to do, such as buying clothes, toiletries or gifts for his or her family. Those small things might be luxuries in a certain sense, but most people take them for granted, and they would not be able to afford them.
Many people in nursing homes are still able to partake in various activities, and we should encourage them to do so. They might wish to get involved in a local group or hobbies. If they want to visit the cinema, they will not be able to afford it, given the payments with which they are currently being left. I have, therefore, tabled this amendment to ensure the matter may be reviewed. I want that review to be mandatory following the passing of this legislation. The average of €35 should perhaps be increased to a more reasonable level, allowing people to do things that we should want them to be able to do if they are in nursing homes. There are many reasons why it would be good for the State to allow that. It means that people retain their independence and can do things. If they can keep active, their health prospects will also be improved. I ask that the Minister to consider taking this on board. I believe that is possible. If the Minister of State will not ensure that is done, will he inform me? Will he arrange for the setting up of such a review group, even if it is not provided for in the legislation? Will he take on the issue raised by the Irish Senior Citizens Parliament?
I second the amendment. It is shocking that we would treat in such a shameful manner people who worked all their lives, paid their taxes, reared their families and made a contribution to society when life was not half as good as it is now. These people would have paid a high rate of tax, which Senator McHugh and I can barely imagine, while probably paying off a mortgage at an interest rate of 18% or 19%.
The Government considers that €35 per week is plenty for them, but it takes no account of expenses they may have. One gentleman called to my clinic recently who is in receipt of an Irish pension even though he had lived abroad for a long number of years but he had worked here prior to that. His American pension paid for the cost of his care in a nursing home while his reduced Irish pension meant the difference for him between living and existing. That opened my eyes to this issue.
What Senator Tuffy suggested is long overdue. It is an issue we need to consider. We have an ageing population. In 30 years nearly one fifth of our population will be over the age of 65. Senator Tuffy's idea is an excellent one and I have great pleasure in seconding the amendment.
This matter is clearly covered in the Bill. I see no necessity for this amendment to be included in the Bill. It is a policy matter which can be given further consideration in the Department or discussed at the relevant joint committee. It is inappropriate to include provision for it in the Bill.
Senator Browne referred to the shameful manner in which older people are being treated. If one checks the record, few other Administrations have the same record as this one in increases made in the old age pension. That shows we are very much aware of the contribution old people have made and have acknowledged that in the large increases given in pensions in recent years.
I move amendment No. 12b:
In page 5, after line 33, to insert the following new section:
"3.—The Minister shall as soon as may be after the passing of this Act prepare and lay before both Houses of the Oireachtas a report on the impact of this legislation on patients in Community Units who are admitted for acute medical illness or rehabilitation, e. g. minor stroke or fractured femur where the length of stay exceeds 30 days.".
The passing of the legislation through this Bill reminds me of an old Scalextric set I had when I was introduced to speed for the first time.
The Minister of State may be commended among his electoral base in Kildare for being the man to put legislation through in a fast and effective way, but yesterday and today are sad days for democracy. One cannot put such sensitive legislation, which will affect the daily lives of a vulnerable group of people, through both Houses with such speed.
The irony of today is that the Minister, Deputy McDowell, is on record only half an hour ago for commending the workings of this House and the reasoning and importance of "informed debate". However, we have not had time for an informed debate on this legislation.
It is. I am building up to it. It is ironic that the Minister, Deputy McDowell, is on record as saying this is an excellent forum for putting legislation through.
I wish to be clear about this amendment. There will be anomaly regarding the 30-day rule that will apply to elderly patients. I stressed this point on Second Stage, but the response I got did not address it. I will give a specific example. An elderly patient who has a minor stroke may not go to the general hospital, as we are all aware, and Senator Glynn will know the procedure, having been a former member of a health board. Such an elderly patient may have to go to a district hospital or a community hospital and after 30 days he or she will be charged. This legalisation puts in place a legal framework to provide for the charging of such a patient.
I raise this issue on two grounds. First, this provision is ageist. A 14 year old boy who breaks his leg and spends more than 30 days in a general hospital will not be charged, neither will a 24 year old man in similar circumstances. Therefore, why will an elderly patient who has suffered the same condition be charged after a hospital stay of 30 days? I appreciate the response to this issue I got from the officials on Second Stage, but there is a grey area in regard to that anomaly. It is discrimination at its worst.
I seek the Minister of State's help on this matter. I am not proposing a substantive change or the employment of consultants to carry out a review. We seek that the Department addresses the provision to charge elderly patients after a hospital stay of 30 days. It will affect an elderly patient who has a minor stroke or who has a fractured femur who spends 31 or 32 days in a hospital. How much will such patients be charged per day?
I need clarification on this issue. It is a sensitive issue for the community of elderly people who will be discriminated against and the provision is ageist. I would appreciate if the Minister of State would clarify the matter. He can correct me if I am wrong and, if I am, I will be delighted.
We do not have the luxury of debating this legislation over a number of days. I explained the reasons we are in this position.
In regard to the Deputy's suggestion of a review of this provision, any Government that introduces legislation will always monitor it and be conscious of its impact. If this Senator or any other Senator or Deputy considers that legislation is having an impact that we had not foreseen, it is his or her duty to highlight that and bring it to the attention of the Minister. In any case where legislation we introduce causes undue hardship in particular areas, we would be conscious of that and keen to make changes.
In regard to the amendment, this is a matter for detailed consultation in my Department. It is not appropriate for inclusion in the Bill because it deserves in-depth examination. In light of that, I cannot accept the amendment as proposed.
The Minister of State acknowledged that there is a need for extensive consultation in this regard. This is discrimination against the elderly, who are being treated differently from other members of society. I ask that the amendment be accepted.
I appreciate that. However, I want a commitment from the Minister of State to a follow-up review of this issue. It is not good that a significant proportion of our population is being discriminated against and treated differently from the rest of the population.
Legislation is always under scrutiny and there have been many amendment Bills over the years. I respect the concerns expressed on the other side of the House and respect all points of view. However, having worked in this area for many years, the State cannot be expected to pay pensions to sustain elderly people's everyday needs in a long-term care institution but still have them receive the same level of income. That is not realistic. While I understand the Senator's point, I do not agree with him. A different situation obtains in regard to elderly people in long-term care. The old concept of shelter and maintenance comes into play, which is a long-established principle in long-term care institutions.
The facts are that on the one hand, the State gives a pensioner money and on the other hand, if an elderly pensioner breaks his or her leg, the State takes the money from him or her after 30 days. For example, a social welfare recipient is given money by the State. However, if that person has to stay in hospital to receive treatment for a period of 30 days, the State does not take back the money. The only group being discriminated against are the elderly. It is a serious and sensitive issue which must be addressed. I appreciate the Minister is in a corner but I want a commitment that the measure will be reviewed.
The only reason we have reached this impasse is because the Bill is going through so quickly. The issue should have been raised in the Dáil but it was not because of the speed of the Bill's passage. This is grand prix speed. To put through a Bill in two days is not acceptable. I need a commitment from the Minister of State.
When an older person goes into an acute hospital for acute medical care, he or she will not be charged. The elderly will be treated no differently from any other member of society and that will be the case as long as they are receiving acute care and treatment. There are no charges for acute care.
I appreciate that it has been put on the record of the House that no patient in a community hospital will be charged after 30 days if he or she is receiving acute medical treatment, be it for a minor stroke or a broken leg, and that such a person will not be treated differently.
I must reply to Senator Glynn. This is new legislation. I am worried about the legal mechanism that will be created with the passage of the Bill. I am concerned that a patient who suffers from an acute illness will be charged after 30 days. If having a worry is baseless-——
My concern is with the period of 30 days. I am glad the Minister has put on the record of the House that any patient receiving acute treatment in any community or district hospital will not be charged after 30 days. I am delighted this will be the case under this new legislation.
I thank the Tánaiste and the Ministers of State, Deputies Seán Power and Brian Lenihan, for their contribution to the debate. I genuinely dislike the Bill and the way it came about. When the matter was repeatedly raised in the other House, it showed democracy in action. Thankfully, clarification was given on the original Bill and action was taken to rectify the problem. However, I have serious doubts in regard to the action taken as it may lead to further difficulty. If the ex gratia payment of €2,000 is challenged in court, it could open the floodgates for more payments.
I suspect that if someone did take a court challenge, he or she might well receive a higher payment, in which case all bets would be off. We might have a lot of expensive litigation ahead of us. I am gravely concerned about people who were unable to get their elderly relatives into public nursing homes due to bed shortages and were then obliged to opt for private nursing homes. There is a court case pending on that matter, which has all sorts of implications.
That health boards did not charge people when they complained is truly shocking. Those who did not complain had to pay the amount involved which, surely, is wrong. I hope it never recurs. I appreciate that mistakes occur and that there is a difficulty with this legislation but if a similar situation arises in future and a health board realises there is a difficulty — whether it becomes aware of it through the Office of the Ombudsman or elsewhere — it should have a "one for all" system in place. A situation should not be allowed to develop whereby people who can scream and defend themselves get off paying the charge, while those who cannot must pay.
There are many worrying aspects to the Bill. It is amazing that not alone is the legislation being rushed through the Houses but we now have an earlier signature motion for the President to sign it into law. Next week, people will be affected by this unexpected legislation when it becomes law. That is a regrettable occurrence in Christmas week. The sharing and caring image the Government sought to create at its Inchydoney retreat is well gone now. Maybe the Government should plan a return visit to Inchydoney during the January break to try to regain its soul.
I wish everyone a happy Christmas.
I concur with my colleague, Senator Browne. I thank the Minister of State and his officials for their patience and perseverance during the Bill's passage through the House. I assume that it is not an easy job being a departmental official when legislation is going through the Houses very quickly. The Minister of State's staff must be commended on all their work, including the work that will need to be done following the Bill's enactment. There is a grey area concerning elderly patients who are recovering in district and community hospitals. When is a patient with an acute illness reclassified as being in the recovery stage? Work needs to be done on defining convalescence, including physiotherapy treatment, for example, following a leg injury. It can be a matter of medical opinion but the important thing is to protect our elderly at all times. I am glad the elderly will be treated no differently from the rest of the population.
I thank the Clerk of the Seanad and her team for all their work during the year. I appreciate the time and effort they have expended. I wish you, Sir, and the Minister of State a very happy Christmas.
I thank the Minister of State and my colleagues in the House for their contributions to the debate. In considering the disbursement of resources it is imperative that they should be allocated in such a way as to achieve the optimum benefit for those in receipt of them.
While the Bill is relatively brief in content, it is an important measure. There is a difference between the acute and chronic stages of an illness. There was a proposal earlier to delete the words "including any psychiatric hospital" but certain categories of psychiatric illness can take quite some time to treat, whereas others may be of relatively short duration. It is difficult, therefore, when one is dealing with an area as broad as this, to be precise or concise in framing legislation to achieve optimum benefit for those affected.
Early in the new year, we should have a debate on services for the elderly, which is a constantly evolving issue. A number of health boards, including my own area which includes the regional hospital in Mullingar, have consultant physicians specialising in geriatric medicine. In addition, St. Loman's Hospital has a department of psychiatric care for the elderly. As chairman of the board, I was pleased to officially open that facility.
When we have a debate on services for the elderly in 2005, I am sure positive suggestions will be made concerning what is being done well and what services could be improved. There is a range of model practice concerning care for the elderly which we should examine early in the new session.
I wish you, Sir, and the staff of the House a holy and peaceful Christmas, as well as prosperity in the new year.
I thank the Minister of State and his officials for their work on the Bill. Obviously, I do not support the legislation but I accept that the Department has had to deal with the issue. I appreciate the time constraints involved. The most important point is that there has to be a better way of proceeding than this one. There are not many alternatives for elderly people who require accommodation and nursing care. Very little has been done to provide sheltered housing for the elderly, be it private or State-assisted through local authorities. If the elderly clients of nursing homes were living in private rented accommodation and were assessed on their incomes, the State would probably be paying them rent supplements.
Under this legislation, however, we are treating elderly people differently from the rest of the community. Even if people are considered to owe money for various services, it is not generally deducted from their payments. We should ensure that older people have a basic minimum income, no matter where they reside. This was the point I sought to make on behalf of the senior citizens' group. What is being left to them under the provisions of this Bill, however, does not approach a minimum income. I hope the Minister of State and his departmental officials will re-examine this issue to ensure that at the very least, such elderly people will receive a decent payment.
Down the line, we may well decide to give payments to families for child care. In that case, we will say such care is necessary and we will do our best to ensure that people receive such payments and that they are not left without a reasonable income. The same applies for the elderly. I hope the Minister of State will re-examine this matter.
Rushed legislation is bad legislation. I sympathise with the officials who had to shove this Bill through at the behest of the Minister. It has now been passed by the House. I would like to have an assurance from the Minister of State that the payment of €2,000 to the people affected will not be politicised in any way, and that lists of those in receipt of the payment will not be circulated to Fianna Fáil and Progressive Democrats Deputies and Senators.
We do not want this matter to be politicised any more than it already has been. I hope the Minister of State will be able to give such an assurance.
I wish the compliments of the season to every Member present, the Minister and his officials, as well as the staff of the House.
I thank the Members for facilitating the passing of the Bill despite the reservations expressed by some. It would appear that some Members have changed their minds, having been opposed to it this morning but they can now see the benefit of it.
This Bill was not of the Government's choosing. We found ourselves in a situation which required action and we have been responsible in the manner with which we have dealt with the issue. There was no option but to pass this legislation before Christmas. I thank all the Members who have facilitated the Government in making this possible. I wish to pay thanks to the staff of the Department of Health and Children for their hard work and dedication. They have put in many hours and burned a lot of midnight oil this week in making everything possible. Much of this work is carried out behind the scenes and few people are aware of it. I wish to acknowledge their contribution to the democratic process.
I wish the Acting Chairman, officials of the Department and Members of both Houses a very happy Christmas and good health in the year ahead. Go raibh maith agaibh.