Wednesday, 13 June 1990
Dáil Éireann Debate
Mr. Sherlock: I seek to reintroduce the amendment we had on Committee Stage. At that Stage the Minister said he would be prepared to look at the amendment  before Report Stage, although on that day he was not prepared to proceed. When speaking on Committee Stage I gave the reasons I felt strongly that the amendment should be included, mainly on the grounds of the information received.
When the Minister was introducing the Bill he said that the population projections reinforced the need to define the responsibilities of health boards and nursing homes and he said that the census revealed that 382,000 people are over the age of 65 years of which 143,000 are over 75 years of age; that the latest projections suggest that the number of elderly will increase slowly up to the year 2000 and rapidly after that, and that we will have a population of 414,000 elderly people. One has to take cognisance of those figures when talking about a nursing homes Bill. The Minister agreed to look at this again on Report Stage. For example, in the Health (Homes for Incapacitated Parents) Act, 1964, it is stated that incapacity means incapable of looking after oneself by reason of (a) old age, (b) physical infirmity or physical injury, defect or disease or (c) mental infirmity or a mental handicap. A similar provision is contained in the Bill but there is no definition of old age. I appeal to the Minister to accept my amendment.
Mr. Yates: I support the amendment. I have reflected on this matter since our debate on Committee Stage and I have come to the conclusion that the absence of a definition of old age and of a dependent person is a shortcoming. Elderly people might not be dependent because of any infirmity but may be dependent because of their social conditions. They may not have a family to look after them or may not have sanitary services in their home. It is well known that many of the people who are in State geriatric homes are there because of social conditions. Their presence there does not relate necessarily to their ill health or infirmity. The section should be extended to meet that shortcoming.
 I understand “old age” to mean a possible debilitating state accompanied by certain social circumstances. Such a person must be considered vulnerable. The purpose of the Bill is to protect the vulnerable and for that reason I am calling for support for the amendment. It is important to point out at this stage that a number of the amendments tabled by the Minister meet many of the points raised on Committee Stage. I welcome that and I was pleased to see such a positive response from the Minister. It is unfortunate that progress was not made on this issue.
Mr. Garland: Like Deputy Yates I will be supporting Deputy Sherlock's amendment. It is interesting to note that the Irish Nursing Homes Association are happy with the amendment. There is no doubt that many elderly people go to nursing homes not because they are ill but because they want social support, company and security. I was disappointed that the Minister on Committee Stage said that the definition of a dependent person includes elderly people. I do not think that is so and I should like to ask the Minister to reconsider this matter.
Mr. Howlin: I support the amendment. A dependent person is a person who requires, as the subsection states, assistance with a range of daily activities by virtue of any reason, whether it is physical or mental infirmity. The definition of old age should be added to the subsection. There are people who require assistance not because they are infirm or mentally feeble but because they are aged. A cogent and clear case was made on Committee Stage to include the definition of old age in the Bill. That was broadly supported by the Opposition and the Minister seemed impressed enough by the arguments. I am very gratified that many of the points made by this side of the House on Committee Stage have been taken on board by the Minister. I am grateful to the Minister for listening attentively to what was said and for modifying many of the sections in accordance  with requests from this side of the House. The important definition should include the fundamental definition of old age which has been encompassed in other legislation.
Minister for Health (Dr. O'Hanlon): As I promised on Committee Stage, I have given considerable thought to whether to accept this amendment. The issue is whether to include old age as a sufficient condition to being a dependent person under the Bill. The Bill defines a dependent person as someone who requires assistance with the activities of daily living because of physical infirmity or injury, defect or disease or mental infirmity. If an elderly person requires assistance of this kind, it is because they are physically infirm or injured, or mentally infirm, not merely because they are old.
My legal advice is that the addition of old age as proposed in the amendment would not bring any additional category of persons under the scope of the Bill. In other words, no category of elderly person will be excluded from the scope of the Bill if this amendment falls. I am satisfied that it is undesirable to equate old age with dependency in the way suggested by the amendment.
Members of the House may be aware of the work of the Age and Opportunity Committee in organising the national week on aging which is now an annual event. Let me quote from some of the literature of the committee:
Life does not end at 65. Many of us need to be reminded of this because we have negative images of being old. We often forget that most people remain healthy, energetic and capable of participating actively in society long after they have reached the age of 65. This time of one's life can be a time of opportunity and personal satisfaction for those who use their talents and experience to the full.
The Age and Opportunity Committee are spearheading a movement to change the way we think about old age. Old age need no longer be associated with  dependency, disease and disability. The typical elderly person is healthy, energetic and is as capable of contributing to society as his or her younger neighbour. Deputy Sherlock has not moved beyond Shakespeare's description of old age as, “second childishness and mere oblivion, Sans teeth, sans eyes, sans taste, sans everything”. On this side of the House we prefer Longfellow who said, “For age is opportunity, no less than youth”. Perhaps I can invite Deputy Sherlock, in Browning's words, to, “Grow old along with me! The best is yet to be. The last of life, for which the first was made.”
I do not think it is appropriate to accept the amendment. We have given a lot of thought to this because modern thinking is that we should get away from the term “old age”. The legal advice to me is that to include “old age” in this section would not bring in any new category of person. Therefore, I reject the amendment.
Mr. Sherlock: I am disappointed at the Minister's response. He seems to disregard old age. He mentioned on two occasions that the term “old age” should not be used but we are well aware of the substantial growth in the number of nursing homes throughout the country and that all the people who live in them do not suffer from an illness or a disability. It is for that reason that I am taking issue with the Minister.
At present a high percentage of the persons accommodated in nursing homes are not suffering from physical injury, disease or infirmity. However, because provision is not made for them by the health boards, their relatives are forced to have them admitted to such a nursing home.
We will be talking later about a subvention being paid to such nursing homes and I can see that this trend will take us down a certain road. The Minister said that he has a programme in train for the care of the elderly, home nursing and so on, and that that is why he will not accept my amendment. Consequently, people who require care and attention beyond what can be provided by their families do not, when medically examined, fit the  criteria laid down in this section of the Bill. This must not be allowed to happen and I intend to press this amendment. The Minister has had plenty of time to examine it but he is obviously sticking to  the same line of argument. A nursing home Bill must include provision for the elderly and those who have reached old age.
Belton, Louis J.
Browne, John (Carlow-Kilkenny).
Farrelly, John V.
|Higgins, Michael D.
Mac Giolla, Tomás.
Sheehan, Patrick J.
Browne, John (Wexford).
Coughlan, Mary Theresa.
Cullimore, Séamus. Jacob, Joe.
Kitt, Michael P.
Morley, P. J.
Nolan, M. J.
Noonan, Michael J.
de Valera, Síle.
Fitzgerald, Liam Joseph.
Gallagher, Pat the Cope.
Hyland, Liam. O'Dea, Willie.
O'Toole, Martin Joe.
Wilson, John P.
This is an amendment I had tabled on Committee Stage which sought to set some limit to the fees that might be prescribed in relation to this Bill. I was seeking to establish as a point of principle that the fees would be no greater than the cost of processing the applications taking one year with another. I was seeking to ensure there would be uniformity between each health board in relation to the level of fees for inspection, fees for renewal of registration and fees for registration of proprietors of nursing homes. I feel this amendment is necessary on the grounds of reasonableness as to ensure that CEOs of health boards would not seek to take advantage of the opportunity presented by the new homes having to pay fees on registration for the first time. I think uniformity is important and the fees should be set at a reasonable level. That is the basic argument for my amendment. I am not seeking to set in concrete the level at which the fees should be set, whether it be £50 or £100 but as a point of principle it should be no more than the cost of processing the applications. This is reasonable and I ask the Minister to accept my amendment.
Dr. O'Hanlon: On Committee Stage I said I would discuss the level of fees for registration with the Irish Private Nursing Homes Association. I repeat that assurance now. It is very important that the level of fee should be reasonable. I do not think it is desirable that fees should be too high because the cost will be passed on in the form of higher charges to patients, their families or the health boards.
I do not think it would be a good idea to include Deputy Yates' amendment in the Bill because it might force a Minister to set a higher fee than he would otherwise set. I do not know if the Deputy has calculated the cost of processing applications for registration, but if one adds the cost of the professional staff's time involved in the inspection and monitoring of homes applying for registration, the cost might very well be considerable. If we accept the Deputy's amendment, the Minister would be forced to have a much higher fee than one would wish and that one would have if the amendment was not accepted. I would prefer if the fees were discussed with the nursing home owners. I have no doubt that we will  reach agreeemnt with the majority of homes on what is a reasonable fee for registration.
Mr. Ferris: The amendment is reasonable in that it is trying to set down guidelines which will be taken into consideration by health boards, in particular. Surely the Minister is not suggesting that the level at which the fee is set would mean that he or the health board would be at a loss in processing the applications. Of course, account will have to be taken of the cost of processing applications. If the Minister is not accepting Deputy Yates' amendment, do I understand that, after the discussions with the Irish private nursing home owners, a guideline will be set down by him which will be in operation in all health board areas so that there will be uniformity throughout the country?
A problem we have all had as legislators is that individuals in the service tend to apply different regulations. This has happened. Under the 1970 Act, CEOs have interpreted some sections in a certain way and the Minister's attention had to be drawn to the anomalies that had arisen. We are anxious that reasonableness would apply and that the fee would be reasonable and this amendment would have addressed that point. It would have set down a guideline as to how the fees should be set.
The Minister has assured us that he will discuss the procedure with the Irish Private Nursing Homes Association and guidelines could be set so that all health boards will be charging the same level of fees.
Mr. Sherlock: I find it difficult to understand why an amendment which merely says that the “prescribed fee means a fee set at such a rate as to merely meet the cost of processing applications” is not acceptable. In the circumstances I have mentioned the Minister will be left wide open, and that is why I support the amendment.
Mr. Yates: I am disappointed with the Minister's response because he did not make any reference to uniformity between health boards nor did he give this House any assurance that, as is the case with other charges, different health boards will not be allowed, as they have in the past, use their own discretionary powers setting in place different fees in different parts of the country.
I regret the Minister cannot accept this amendment. I feel that his commitment to consult with the Irish Private Nursing Homes' Association may only be a token gesture because after consultation he may do what he likes. It would be better to have things set out. We have a large number of amendments to deal with so I will not labour this point unduly, however, I intend to press the amendment.
An Ceann Comhairle: I might indicate again for the benefit of other Members present that if it is their intention to have the Minister comment on their contribution, their contribution should precede the Minister's as he is restricted to one statement.
This amendment deals with the definition of records. Records are not defined in section 1 of the Bill at present and I am seeking to do so because section 6 (2) (g)  on page 9 of the Bill, as amended in Committee states:
If these records can be examined freely by health board personnel, copied and taken away, we need to be very careful that private and confidential matters should be excluded from that type of consideration. The personal details of patients should be excluded as well as the personal financial arrangements of proprietors.
My amendment is a prudent and discreet insertion which seeks to place a definition where there is none at present. Any assurance the Minister may give in regard to what records provided in section 6 of the Bill means, has no real relevance if it is not defined in the Bill. As we can see in section 1, which deals with interpretation, there is no such definition laid down. For those reasons it is important that amendment No. 3 be included in the Bill.
Dr. O'Hanlon: As I have previously dealt at some length with this amendment on Committee Stage, I do not intend to accept the amendment at this Stage. At present nursing homes are not required, nor is there any intention to require them, to make their financial records available for inspection. Under the present regulations, clinical records may be inspected only by a medical practitioner in the service of the Minister or the health board or by the patient's general practitioner. The draft nursing home regulations which were circulated recently repeat this provision. As I have said, it is not the intention that there should ever be an inspection of the financial records of a private nursing home or that such records should be made available for inspection. The medical records are governed by the regulations and indeed by the draft regulations which have been circulated recently. Therefore, I do not accept that it is necessary to include this amendment.
Mr. Yates: I note the Minister does not agree with the substance of my proposal, which is important. Records are not defined in the Bill. I would like to ask the Minister in what previous legislation records are defined.
Mr. Yates: On that basis, I will withdraw this amendment but I certainly hope there will be no ambiguity about this matter and that in future very personal and private details will not be subject to section 6 (1) (g) of the Bill.
This is a matter of some importance. It deals with the institutions exempted from the legislation. At present, it is proposed to exempt an institution managed by or on behalf of a Minister of the Government or a health board. I think it was Deputy Ryan who asked the Minister the last day under what regulations are State, health board or departmental geriatric homes covered, but I do not think the matter was properly replied to. Therefore, I am tabling an amendment which was discussed in detail on Committee Stage but was not actually tabled. Of course, we will exempt prisons and other types of hospitals but public homes,  equivalent to nursing homes, that happen to be in the public domain should not be excluded. This new amendment seeks to delete section 2 (1) (a), which would mean that a geriatric home run by a health board or by the Department would not be exempt. I am seeking to ensure that the same standards apply in the public as in the private sector. It is very important at a time of such financial stringency, cutbacks and staffing shortages that there is protection for this vulnerable section of the community. This matter was not properly dealt with on Committee Stage. The Minister simply referred to institutions other than health board geriatric homes. There must be equality and there must be protection for the elderly, many thousands of whom are in such geriatric homes and deserve this protection.
Mr. Ryan: In supporting this amendment I would again ask the Minister to take on board what we in the Labour Party, and indeed the other Opposition parties, have been endeavouring to enshrine in the legislation. I hope we get a definite reply from the Minister. On Second Stage and Committee Stage when I asked under what legislation or regulations an institution managed by or on behalf of a Minister of the Government or a health board is covered, he said that as far as he was concerned they were already subject to a statutory and publicly accountable system for management. The Minister referred to Members of these Houses. Eastern Health Board officials and visiting committees. He touched on the whole area rather than making a specific statement in relation to the regulation in question.
I have commended the Minister on the great progress he has made in this important area. It will be many years before we come back with more legislation in this regard. The Minister is excluding, in this legislation, institutions run on behalf of a Minister of the Government or a health board and therefore he is setting identified standards for private nursing homes, but when it comes to the  institutions mentioned in the amendments he is saying there is public accountability. This provision is necessary. As I said on previous stages, the people running these institutions fear they will not have the finance necessary in the years ahead to meet the minimum requirements as outlined in this Bill. The Bill will not meet their needs unless the Minister is prepared to consider the points made by the Opposition.
The Minister made it very clear, on Commitee Stage, that he was not prepared to take our views on board, but I hope he will now take this amendment on board and ensure that there will not be a two-tier health service. It is important that this provision be enshrined in the Bill. I am asking the Minister to clearly outline the legislation or regulations under which these homes are being run and controlled.
Mr. Sherlock: One finds it difficult to comprehend a situation where the Minister would find grounds — I doubt very much if he could — for excluding a geriatric home run by a health board. As has been pointed out by Deputy Ryan, in the past three or four years we have had many serious complaints which may be difficult to quantify. Nevertheless, serious problems did arise. These can arise from inadequate staffing levels and carelessness in administration; it does not happen very often but it can happen. I do not think the Minister can rule out for geriatric homes the same type of regulations as are being applied to the nursing homes. In relation to the care of the elderly and of people who require nursing, care and attention above and beyond what can be provided for them in their own home, in every institution where they are being cared for there should be regulations governing the standard of care.
Mr. Roche: I have no doubt about the sincerity of the points made by the other Members but it would be a fundamental error to include in a Bill, which is primarily aimed to create a set of standards in private sector operations, the suggestions that have been made. I have listened to Deputy Ryan and to Deputy Sherlock and I believe they are sincere but equally they should accept the sincerity of people on this side of the House. In this regard nobody wants to create a situation where, to use the terms of Deputy Yates' amendment, a geriatric home run by a health board or by the Department of Health is anything less than of the highest standard. I am a member of a health board, as I am sure other Members are also, and one of the issues which is frequently the subject of specific attention by Members from all parties and from the professionals in the health boards is the matter of standards. Because this matter is dealt with in that way there is a distinct difference between a state sector home, be it a geriatric home, a nursing home, or whatever and there is a forum in which the interests of the members of the public who find themselves in those homes can be ventilated. This is a forum where the members of all the professions in the health boards can give their views.
I am not suggesting that the Deputy who has moved this amendment or the other Deputies who have spoken or the members of the health board are not vigilant in those matters but it is because of that vigilance that this amendment is not prudent and in the context of a Bill which has a very specific focus would not be the best way of specifically recording in legislation the very sincere concerns which have been expressed in that regard. I share those concerns and I share the view that we should ensure that the highest possible standards apply in this area. I believe there is a set of institutional arrangements whereby any decline in standards can not only be ventilated but vindicated and supported by members of health boards. It would be imprudent to have this type of regulation of State owned homes imported into a  Bill which has very specific and a very fine tuned set of objectives.
Mr. Ferris: Nobody on this side of the House is suggesting for one moment that standards in public health institutions are any less than what we want to lay down for the private institutions. All of us are aware that over the last number of years, because of cutbacks and restrictions on budgeting — particularly in the community care area, both in the community and in institutions, long stay geriatric and welfare homes — over and beyond the control of staff at all levels, from the matron to the nursing staff and others, they have had difficulties in maintaining the standards they set for themselves on our behalf. We are now asking the private sector to adopt the same standards as we set down here for the public sector.
On the basis of this amendment we are reversing the procedure on the basis of equity. We want to make the playing pitch equal — those are the words used by Government when they are legislating for the private sector as opposed to the public sector. We are suggesting that any standards set down in any sector should be the same for others including the public sector as the patients in these institutions, whether long stay geriatric patients, welfare home participants or in whatever other public institution, are expected by law under the provisions of the 1970 Act to contribute 75 per cent or more of their incomes, whether they be social welfare incomes, added incomes from the forestry service, county council pensions or otherwise. They are paying into the public sector for a service and it is appropriate that we ensure that the standards we require of private institutions in this Bill are required also of public health institutions. This is an excellent Bill and subvents the patient rather than the bed. That is proper and I congratulate the Minister on it. In so doing we are assisting people to avail of private nursing home accommodation. There is no difference in seeking that accommodation in a public home, welfare or geriatric, because fees are required in that instance also. It is appropriate for  the patient's sake that the standards should be the same in all cases. There is no ideological imbalance in that argument.
Mrs. T. Ahearn: I support the amendment tabled by Deputy Yates because, like my colleagues, I believe the same protection should be given to a patient whether confined to a private nursing home or to a public hospital. While we can assume and be assured that good standards do apply in our public hospitals, this legislation is for the future. Because of cutbacks in the past two years the standard of care in some areas, unfortunately, had to be trimmed. When we are introducing legislation such as this it is important that we ensure that the same standard of care is available for patients irrespective of where they find themselves. That is why it would be of benefit to this legislation to include this amendment as tabled by Deputy Yates.
Dr. O'Hanlon: I agree with the Deputies that we want the very highest standard for our elderly in all residential institutions, let them be privately run nursing homes or State hospitals. What we we are talking about here is a system of registration as to who should register and have inspections. It is not appropriate that a health board who own a particular hospital should register that hospital and inspect it in accordance with this Bill. Deputies realise that it is possible to set up a private nursing home and not register it so that a health board may never know about it and, consequently, there may be no way of insisting that standards will be maintained. The legislation will ensure that nursing homes are registered. The health boards are aware of the residential homes for the elderly they run and provision has been made to ensure that these homes are properly inspected. Indeed, as I said on Committee Stage, Members of the Opposition are also members of health boards and there is no question of any member of a health board, regardless of which side they come from, trying to hide something they  believe is necessary to improve standards.
We also have visiting committees which are made up of the elected members and professional people of the health boards. Once or twice a year they visit each home in their area to ensure that standards are maintained. Deputies regularly submit questions to the Minister of the day and in this way the Minister is held accountable for the standards obtaining in nursing homes. The Minister also has the power to send an inspector to look at the homes and, if necessary, initiate a public or local inquiry into a particular home by a health board if he so wishes.
Deputy Ryan asked what was the basis for section 83 of the 1970 Health Act. I fail to understand why Deputy Yates included a reference in his amendment to geriatric homes run by the Department of Health as no such homes exist. I do not think it is necessary, nor would it be appropriate, to include the amendment for the reasons I have given.
Mr. Ryan: It is a very relevant question. On the previous Stages I asked the Minister three times to tell us why this legislation will not cover public nursing homes but he failed to respond. He has also refused to do so today.
An Leas-Cheann Comhairle: Unfortunately, Standing Orders do not provide for a Deputy's frustration or irritation with a Minister. We are all subject to that  every day of the week in this place. I would ask the Deputy——
An Leas-Cheann Comhairle: The Deputy would have to apply his own great talents to having it all changed. Meanwhile I must remind the Deputy that on Report Stage you speak to the amendment once. That is the order and anything against that is disorderly and not in accordance with points of order, unless you are referring to the order that controls the debate at the time.
Mr. Yates: On a point of information, section 6 sets out the regulations in relation to food, hygiene, staffing and so on, in private nursing homes. I ask the Minister to indicate where a section, compatible with section 6 of the Bill, exists in law in relation to health board geriatric homes. Perhaps he can inform me of the appropriate Act or regulations.
Dr. O'Hanlon: Under this legislation, there is a responsibility on health boards to ensure that nursing homes maintain a certain standard. If they were to send one of their inspectors to inspect one of their own homes, how could we be sure that he would apply the same standards to that nursing home as are applied to other nursing homes? That is a reflection on the people working in health boards. The  health boards will decide what is a reasonable standard. We will lay down regulations in relation to food for example, and I have no doubt the health boards will ensure that these standards are applied in their own homes. I am satisfied from my visits to homes around the country that an extremely high standard is maintained in health board institutions which compares very favourably with the standards maintained in private nursing homes.
Mr. Yates: ——because you seem to be frustrated about this matter but I asked the Minister a very specific question. I asked him to specify the legislation. Is it the 1970 Health Act or the 1954 Health Act? He just gave me an assurance that all is well, that health board personnel are fine people and that everything is in order. I take it that no such regulations exist. I think that is the point Deputy Ryan was trying to make. It is clear that no regulations, compatible with those laid down in section 6 exist.
apply to health board homes. I have visited health board geriatric homes which could well do with more than a lick of paint. Indeed, we have heard some horrific stories of plaster falling off walls  in psychiatric homes. I am in correspondence with the Minister about the transfer of patients from a unit in the Eastern Health Board area and the Minister has conceded that the conditions prevailing are less than satisfactory.
We are not decrying health boards but rather dealing with legal requirements. The Minister could have said that as there are no such requirements at present he intends to propose an alternative schedule which would stipulate that these regulations  will apply elsewhere but he has refused to do so. I intend to press the amendment. There is a gap in the regulations and it is not adequate to say this matter will be dealt with in the normal process of democracy in the health service. Requirements should be laid down. No unit within the health service should be above the law if this is perceived to be the best type of law that we need to protect elderly people.
Belton, Louis J.
Browne, John (Carlow-Kilkenny).
Farrelly, John V.
Higgins, Michael D.
Mac Giolla, Tomás.
Sheehan, Patrick J.
Brady, Gerard. Callely, Ivor.
Coughlan, Mary Theresa.
de Valera, Síle.
Fitzgerald, Liam Joseph.
Gallagher, Pat the Cope.
Browne, John (Wexford).
Burke, Raphael P.
Calleary, Seán. Lyons, Denis.
Morley, P. J.
Nolan, M. J.
Noonan, Michael J.
O'Toole, Martin Joe.
Wilson, John P.
Tellers: Tá, Deputies J. Higgins and Boylan; Níl, Deputies Gallagher and Clohessy.
Amendment declared lost.
An Leas-Cheann Comhairle: Amendment No. 6 in the name of the Minister. Amendment No. 7 is an alternative and I suggest that we take amendments Nos. 6 and 7 together for discussion. Is that agreed? Agreed.
Dr. O'Hanlon: I move amendment No. 6:
In page 3, lines 20 to 22, to delete “ailments by or under the supervision of a person whose name is entered in the General Register of Medical Practitioners” and substitute “illnesses”.
This amendment arises out of our discussions on Committee Stage. Deputies were not happy with the wording in the original subsection and I am happy to delete the reference to supervision by a registered medical practitioner. I have also substituted “illnesses” for “ailments” because it is more in keeping with modern terminology.
Mr. Yates: I thank the Minister for bringing forward this amendment which is identical to mine. It meets the point that a general practitioner or another form of medical practitioner should not establish a nursing home and through a loophole in the law gain exemption from registration and all the other requirements in this Bill. I will not move amendment No. 7 and I will be agreeable to an expeditious and favourable handling of this amendment.
Mr. Sherlock: I thought there might be some other reason for the Minister's amendment, particularly the substituting of the word “illnesses” for “ailments”. Would he explain the grounds for that change?
Dr. O'Hanlon: “Illnesses” is a better term. An ailment might not necessarily be an illness. Basically we are trying to exclude acute hospitals and hospitals where acute medicine is practised from  the scope of this legislation. Everybody would agree with that.
Mr. Sherlock: Was that not done in the previous section?
Dr. O'Hanlon: We are talking about section 2 (1) (b) which refers to an institution in which a majority of persons being maintained are being treated for acute ailments or under the supervision of a person whose name is entered in the general register of medical practitioners. “Illnesses” is a clearer definition of what we want included in the Bill. “Ailments” has a wider scope and an ailment is not necessarily an illness.
Mr. Roche: The inclusion of the reference to medical practitioners did cause a great deal of disquiet and I welcome the decision here. There is a reference that would seem to have precluded medical practitioners being registered in the same way. I have spoken privately with the Minister and if he would address that issue in the regulations it would take account of the concern that is widely felt in some sectors of the nursing home industry.
Amendment agreed to.
Amendment No. 7 not moved.
An Leas-Cheann Comhairle: Amendment No. 8 in the name of Deputy Yates. Amendment No. 9 and amendment No. 48a form an alternative composite proposal. Amendments Nos. 8, 9 and 48a may be taken together, by agreement. Agreed.
Mr. Yates: I move amendment No. 8:
In page 3, to delete lines 44 and 45.
The net issue in amendments Nos. 8 and 9 is whether religious homes should be exempt from the provisions of section 2. Perhaps the Minister will outline the purpose of amendment No. 48a.
Section 2 (1) (h) provides that premises in which a majority of the persons being  maintained are members of a religious order or priests of any religion should be excluded from the requirements of the Bill. There has been some disagreement on this matter. The Minister is proposing in amendment No. 9 that the exclusion should apply only to institutions where a subvention is not paid. At this stage I am in favour of pressing amendment No.8 because I do not think elderly persons in institutions maintained by religious persons which may go on fire should have any lesser protection than people in other institutions. I am open to persuasion on the merits of amendment No. 9.
Mr. Ferris: I support the Minister's amendment. If a subvention is paid we have a responsibility to the people in that institution whereas if no subvention is paid naturally we do not. The Minister's amendment meets my concerns in that area.
Mr. Garland: I support the Minister's amendment. However, amendment No. 48a proposes the insertion of a new paragraph (b) in section 7 (1) but there is no paragraph (a) in section 7 (1). Can the Minister say where paragraph (1) (b) comes from?
Dr. O'Hanlon: Paragraph (b) will be incorporated in the new Bill when it is published and section 7 (1) will become section 7 (1) (a).
The amendment in my name arises from our debate on Committee Stage. A number of Deputies were not happy with the exclusion of all religious homes caring for persons, the majority of whom are members of a religious order or priests of any religion. Representations were also made to me on behalf of religious communities, making the case that a number of religious homes specialise in offering nursing care to priests or members of religious communities and that these homes would like to be included within the scope of this Bill. In particular, they do not wish to be excluded from any subventions to which their patients would be entitled if they were being cared for in a registered nursing home.
 On the other hand, there was agreement that it would not be right to include all religious communities caring for dependent members within the scope of the Bill. I gave an example of this during Committee Stage when I said it would not be appropriate to insist that the Carmelite monasteries should comply with the standards of comfort to be laid down in the new regulations. We are not obliging families caring for their elderly relatives to comply with these requirements and we should not require religious communities who have taken a vow of poverty to comply with them.
Amendment No. 9 and substitute amendment No. 48a to section 7 provide that the home run by a religious community caring for dependent persons who are in receipt of a subvention from a health board shall be defined as a nursing home and will have to comply with all the requirements of the Bill. These amendments provide the right balance between facilitating those religious communities who specialise in providing nursing home care to priests or members of religious orders and excluding those communities who care for their elderly members within the rules of their religious founders.
Mr. Yates: Arising from what the Minister has said, I am happy to withdraw amendment No. 8 and to agree to amendment No. 9.
Amendment, by leave, withdrawn.
Dr. O'Hanlon: I move amendment No. 9:
In page 3, line 45, after “religion”, to insert (other than premises in relation to which a payment has been made under section 7)”.
Amendment agreed to.
Acting Chairman (Mr. Stafford): I suggest that amendments Nos. 10, 11 and 12 be discussed together. Is that agreed? Agreed.
Dr. O'Hanlon: I move amendment No. 10:
In page 4, line 41, to delete “2 years” and substitute “3 years”.
This amendment arises from our discussion on Committee Stage when Deputies made a strong case for an increase in the period of registration. It was a question of balance between a very long period or a very short period, as was recommended by the working party. While I favoured a period of two years, I recognised that nursing home owners — this was referred to by the Opposition Deputies — had genuine reservations about the two year period. In these circumstances I am prepared to extend the period of registration to three years. If I were to extend the period for any longer than that I believe it would weaken the role of encouraging nursing home owners to maintain standards without constant inspection and monitoring by the health boards.
Acting Chairman: Deputy Yates.
Mr. Garland: On a point of order, my name is to this amendment also. It is a case of great minds thinking alike — I put down my amendment without realising the Minister had put down a similar amendment. Like the Minister I was happy with the two year period at the time but as a result of representations I received from nursing home owners I felt three years was a more reasonable period. I also felt that the five year period and the four year period proposed by Deputy Howlin were too long. The magical number of three years is the one and I support the Minister's amendment.
Mr. Yates: I welcome the Minister's change of heart on this issue. I believe this will give more permanence to major investments which have to be made by nursing homes. Therefore, I support amendment No. 10 and will withdraw amendment No. 11.
Mr. Ferris: The Labour Party thought the magical number of years should be  four. We proposed a period of four years in amendment No. 12 because there is a major capital investment involved in bringing nursing homes up to standards and health boards will have the power under this Bill, to ensure that standards are maintained.
In view of the strong lobbying of the private nursing homes that two years was too short we felt that four years was a reasonable length of time for a nursing home to be registered if it maintained its standards. On the last occasion when we dealt with this the Minister was adamant that it would be retained at two. He has gone some way towards a compromise by suggesting three years. We will therefore withdraw our amendment No. 12 in favour of the Minister's. We hope that this will be kept under review.
Amendment agreed to.
Amendments Nos. 11 and 12 not moved.
Mr. Yates: I move amendment No. 13:
In page 5, line 37, to delete “an” and substitute “a serious”.
This is a matter which we debated last week on Committee Stage and, on reflection, I am still not satisfied about it. It relates to the circumstances where registration could be refused to the proprietor of a nursing home. One of the circumstances in which a proprietor could be refused registration is if “the applicant or the registered proprietor, as the case may be, or the person in charge or, as the case may be, proposed to be in charge of the home has been convicted of an offence under this Act or the Act of 1964 or of any other offence that is such as to render the person unfit to carry on or, as the case may be, to be in charge of the home”.
This has to be interpreted by a health board and we could have a situation where someone who did not have a gun licence, did not have a dog licence or did not pay his television licence could be found to be an unsuitable person to be in  charge of a home. I think only a finite series of offences should debar someone from being a registered proprietor. Not being a legal person myself, and having reflected on this, perhaps a better word than “serious” could be inserted. The Minister would have access to much better legal advice than I would. The fact that the Act says “any other offence” could be interpreted to mean that a person who was prosecuted for not paying a television licence or who got a parking ticket could lose his registration or a third party objecting to a nursing home being established could take a case to the District Court. The only defence the Minister had the last day was that a justice or a health board would not interpret it in such a way that a minor offence would render the person unfit, so we have to take the Minister's word for it. This is not what the law is about. The Minister's opinion or mine is not what is at issue. The law is supposed to be clear and precise. That is what we want so that the courts can interpret it with clarity. I am not saying my amendment is the answer to this but I am certainly not happy that the provision should be put in those loose terms. It could result in vexatious appeals by third parties. We should close off that opportunity and say what we mean thereby ensuring that justice is done in the administration of these registrations.
Mr. Ferris: We had a wide-ranging debate on this section on Committee Stage. The Minister has reassured us that if people are unhappy about the application of particular sections they can have recourse to the District Court. We have argued that once a person providing this kind of service has to go to court at all their reputation is immediately tarnished.
Deputy Yates is concerned about the inclusion of the words “any other offence” and as to how it would be interpreted, and wanted to amend it to read “a serious offence”. The Minister on the last occasion said that it would of course  have to be a serious offence before somebody could be precluded from registering. I understood that he had confirmed that guidelines would be laid down by way of regulations to cover the points made by Deputy Yates. Perhaps the Minister would confirm that that is the way he wants to approach this. Possibly that is the correct way to legislate in this area without becoming too technical or ending up in court with every section.
Mr. Sherlock: My reason for rising on this is to seek clarification. The section refers to the person in charge of a home having been convicted of an offence under “this Act”. Deputy Yates refered to convictions under other Acts. It also mentions the Act of 1964. Is it not intended to repeal the Health (Homes for Incapacitated Persons) Act, 1964, or is that the Act we are referring to? If that is so, is it the intention under this Nursing Homes Bill to repeal that? Why then is there reference to it?
Mr. Garland: I think there is a certain confusion creeping into this debate. With respect to Deputy Yates I think this amendment is incorrect or out of order. If he looks at the Bill as amended in Committee he will find that the word “offence” appears in lines 37 and 38. He is proposing that “offence” in line 37 be amended whereas I suspect he means the word “offence” in line 38 because the word “offence” in line 37, as Deputy Sherlock points out, refers specifically to offences under the Act whereas the “offence” in line 38 refers to “any other offences”. That is the first point I would like to make.
The second point is that Deputy Yates said today that he wants to amend this to read “a serious offence”. I do not think there is any legal definition of the word “serious” and for that reason I suggest the word “indictable” would fill the Bill. I accept the spirit of what Deputy Yates has said. We are endeavouring to reach a consensus on this. While I am not a legal expert I suggest that the use of the word “indictable” would be the answer to our problem.
Dr. O'Hanlon: The parliamentary draftsman has advised that it is very difficult in drafting legislation to distinguish between a serious and a not so serious offence which might disqualify a person from being a registered proprietor or a person in charge of a nursing home. The amendment we accepted on Committee Stage considerably tightens the section. We removed the words, “in the opinion of the board”. I was surprised to hear Deputy Yates suggest that a person who did not have a current TV licence or gun licence might find himself or herself excluded from being the proprietor of a nursing home on the basis that the board might consider them to be serious offences. Section 4 (6) (b) (ii) states:
(ii) the applicant or the registered proprietor, as the case may be, or the person in charge or, as the case may be, proposed to be in charge of the home has been convicted of an offence under this Act or the Act of 1964 or any other offence that is such — this is very pertinent — as to render the person unfit to carry on or, as the case may be, to be in charge of the home.
Nobody in their sane senses would suggest that a person convicted for not having a television licence or a gun licence would be guilty of an offence that would render them unfit to be in charge of a nursing home. The new section has been considerably tightened up by the amendment we accepted on Committee Stage.
I should like to tell Deputy Ferris, who raised a question about guidelines, that we can elaborate on what is in the Bill but I am satisfied that its provisions are clear in stating that a person has to be guilty of an offence that would render him or her incapable of being in charge of a nursing home. We can elaborate on that provision in the regulations because, obviously, we want common sense applied and I have no doubt that common sense will prevail.
Deputy Sherlock suggested that the 1964 Act is being repealed, and that is correct, but convictions under that Act will stand. Deputy Garland suggested  that we should consider replacing the word “serious” with the word “indictable” but I do not think that would get us out of the dilemma. In fact, if we change the word we might be creating a bigger dilemma because some indictable offences may not render a person fit to be in charge of a nursing home. The best advice to me is against including the word “serious” on the basis that it might create bigger problems than we have.
Deputies will be aware that an appeal may be made to the District Court against an unreasonable decision of a health board. That should ensure that health boards will be particular. They will not want to be going to court to defend a bad decision. They will want to ensure that they apply common sense when implementing the provisions of the Bill. I am satisfied that the section, as amended, meets our desire to ensure that decisions are well based.
Mr. Yates: I take the point made by Deputy Garland that in line 38 “any other offence” should read “a serious offence”. For that reason I intend to withdraw the amendment. However, I am not satisfied with the Minister's assertion that the words “any offence” could not mean offences A, B, or C. Any assertion could be made by a solicitor in court. I am concerned that this matter is put beyond any doubt in the regulations. The clear intentions of the House should be implemented.
Amendment, by leave, withdrawn.
Mr. Howlin: I move amendment No. 14:
In page 6, line 10, after “registration”, to insert “reasonable”.
I argued in favour of a similar amendment on Committee Stage. I did not resubmit all the amendments I tabled on Committee Stage but I have tabled the ones I considered were not dealt with adequately by the Minister. Subsection (8) states:
 (a) A health board may—
(i) at the time of registration or subsequently attach to the registration conditions in relation to the carrying on of the nursing home, concerned—
That is an open-ended power. The subsection continues:
and such other matters as it considers appropriate having regard to its functions under this Act,
The powers envisaged are too broad. I have no doubt that the vast majority of health board officials will be reasonable in their approach to this provision. The intention of the Oireachtas is that unreasonable conditions should not be attached to the running of nursing homes. However, we should be bold enough to specify that in the Bill.
It could happen that an over-zealous health board official — we come across them from time to time — might feel it appropriate to include conditions that would not be reasonable and that a reasonable person would find unacceptable. The only way that would be vindicated would be by appealing the decision to the District Court. That would be inappropriate. I have no doubt that the Minister's intention is that only reasonable conditions should be attached to the running of a nursing home and that in practice most health boards will only attach reasonable conditions but we should spell them out in the regulations.
There is a fear among some owners of nursing homes that giving this broad power to a health board might put them in an invidious position. It is a fair request to ask the Minister to include the word “reasonable” in the section. I do not think its inclusion will detract from his intentions. It will give people further confidence in the Bill and will protect those who are genuinely running nursing homes for the benefit of the community.
Dr. O'Hanlon: I considered this suggestion since Committee Stage and I do not propose to accept the Deputy's amendment. I understand that the owners of nursing homes are concerned  about the implications of conditions which may be attached to registration but, as Deputy Howlin pointed out, the boards can be expected to be reasonable in the conditions they lay down. If, for example, an official decides to impose a condition that is not reasonable, there will be plenty of opportunities for an applicant before he goes to the District Court to deal with the matter. For example, the matter could be discussed with the official concerned or with more senior officials or the CEO of the health board. Our experience over the years is that a practicable approach is adopted. For example, that is the position in regard to the food hygiene regulations. The interests of the public are protected and every effort is made to ensure that a high standard of hygiene is maintained.
A person who purchases a premises can discuss the regulations with the officials concerned. A reasonable view will be taken. Between the legislation, the regulations that will follow and the guidelines we will ensure that health boards will be clear on what is reasonable in terms of conditions. I am satisfied that it is not necessary to include the word “reasonable” in the Bill.
Mr. Howlin: I regret that the Minister does not see fit to include this word because we are not at variance in what we seek to achieve. He seeks to ensure that only reasonable conditions are attached to such registrations and I also wish to ensure this. If that is the intention, I do not understand why we cannot simply state it. It is a frustration which frequently occurs in dealing with legislation in this House that the objective cannot be clearly stated for fear of X, Y or Z. If it is our belief the health boards will act reasonably in all cases, why not just put in such a requirement? There should not be a difficulty in doing that. We certainly would not stand over unreasonable conditions and perhaps the Minister will explain further.
He talked about other levels of discussions and about talking to the health official concerned. There is not much point talking to an unreasonable health  board official, such people exist although I grant they are rare exceptions. The next course of action is to take up the time of the chief executive officer but I do not think that he should be involved in each application in the region of his responsibility which may cover five or six counties. What is the difficulty in enshrining in the legislation the objective shared by the Minister and me, that only reasonable conditions can be attached to the registration of nursing homes? That will placate the genuine fears of people who run nursing homes and who want to comply with the terms of the Bill. Their legitimate fears should be allayed and I am surprised that the Minister will not accept this very minor amendment.
Amendment put and declared lost.
Mr. Yates: I move amendment No. 15:
In page 6, line 15, after “homes”, to insert “directly relevant to the care of dependent persons”.
This amendment is similar to that tabled by Deputy Howlin as it seeks to have an element of fair play and to curb over-zealous officials. The conditions laid down by the health boards should be relevant. Subsection (8) (a) (ii) states that different conditions should be attached to the registration of different nursing homes. These conditions should not be about the colour of the paint on the walls, the size of the entrance or car parking facilities, they should relate to the people we are seeking to protect. This would improve the Bill without changing the Minister's intent. It is an important amendment which I have resubmitted on Report Stage and I ask the Minister to accept it.
Dr. O'Hanlon: This amendment is unnecessary. We dealt with it on Committee Stage and subsection (8) (a) (i) states that a health board may “at the time of registration or subsequently attach to the registration conditions in relation to the carrying on of the nursing home concerned and such other matters  as it considers appropriate having regard to its functions under this Act”. There are two safeguards, one is that the condition must relate to the carrying on of the nursing home and the other is that it must be appropriate having regard to its functions under this Act. Therefore, the safeguards are already in subsection (8) (a) (i) and it is not necessary to include the amendment proposed by Deputy Yates.
Mr. Yates: I am disappointed with the Minister's response but, to expedite progress, I will withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Yates: I move amendment No. 16:
In page 6, line 28, to delete “it considers necessary” and substitute “is relevant to the application”.
This is a very important amendment. Subsection (10) (a) states:
A health board may request an applicant for registration or, as the case may be, a registered proprietor or an applicant for a declaration under subsection (4) to furnish it with such information as it considers necessary for the purposes of its functions under this Act.
This again relates to the individual opinion of what is necessary by a health board official. It does not say whether every official in the eight different health boards will be of the same opinion regarding what is necessary. It is vital to delete “it considers necessary” and substitute “is relevant to the application” because “what is necessary” is a subjective matter but “what is relevant” is not. In relation to seeking information, it is important that this is narrowed down in the interests of good law, clarity and good administration. I ask the Minister to continue as he did an hour ago when he accepted one out of every two of our amendments.
Dr. O'Hanlon: I am glad that Deputy Yates recognises that I have accepted  some amendments because, as I said before — and I get a certain pleasure from repeating it now and again — I sat over there for four years and not even a dot on an “i” was accepted by way of amendment during that time.
Mr. Howlin: The former Minister was a reasonable man.
Mr. Yates: There probably were fewer errors in the legislation.
Dr. O'Hanlon: This amendment is unnecessary because the section as drafted requires a health board to act in an objective manner and to request information related to its functions under the Bill. Therefore, information relevant to the running and management of the nursing home could be requested. I do not propose to accept this amendment. Subsection (10) (a) states very clearly that a health board may request an applicant for registration or, as the case may be, a registered proprietor or an applicant for a declaration under subsection (4) to furnish it with such information as it considers necessary for the purposes of its functions under this Act. The safeguard is there.
Mr. Yates: I am disappointed that the Minister will not accept my amendment because, without it, the Bill is loose, shabby and poor law.
Question, “That the words proposed to be deleted stand”, put and declared carried.
Amendment declared lost.
An Leas-Cheann Comhairle: Amendment No. 17 in the name of the Minister. Amendments Nos. 18 and 21 are related and amendment No. 22 is consequential on amendment No. 21. With the agreement of the House it is proposed to discuss amendments Nos. 17, 18, 21 and 22 together.
Mr. Yates: Agreed.
Dr. O'Hanlon: I move amendment No. 17:
In page 6, line 49, to delete “2 weeks” and substitute “4 weeks”.
A Leas-Cheann Comhairle, you were not here when I pointed out that I sat over on those benches for four years during which time not once was an Opposition amendment accepted. I am glad to tell Deputies opposite that again this afternoon I have accepted one of their amendments.
The purpose of this amendment is to extend the length of time within which a nursing home may be legally carried on when, for whatever reason, the registered proprietor ceases to be the registered proprietor. For example, if the registered proprietor of a nursing home died the person carrying on the nursing home in the meantime henceforth will have four weeks rather than two weeks in which to apply to the relevant health board to be the new registered proprietor. I accept the point made on Committee Stage that, for example, two weeks following a bereavement is too short a timescale within which to expect relatives to organise the re-registration of the home.
Mr. Yates: I welcome the Minister's change of mind in this regard. We will be agreeing to this amendment. On a point of information perhaps the Minister would say why he has changed the time scale to four weeks in relation to page 6 whereas at lines 21 and 46 of page 7 the timescale remains unchanged. If the Minister has accepted the principle of what is at issue then why do different timescales appear in the Bill? I would be happy to withdraw my amendments if the information the Minister gives me is to the effect that it meets my purpose.
Dr. O'Hanlon: The amendment we are now accepting does not affect section 4 (13) (b). We do not consider it necessary to amend that subsection so that the timescale would read 28 days; we intend to leave the 21 days there.
Mr. Yates: The Chair will appreciate that since there are three amendments in my name I am entitled to speak at least twice on each. Deputy Howlin can carry on; I know what I will say in a few minutes.
Mr. Howlin: Listening to the Minister's remarks on his amendment I have to agree with him. The reasoning behind his argument, in fact the very words, are those I used on Committee Stage in arguing for the amendment I had submitted then, now the Minister's amendment. I am very grateful to the Minister not alone for accepting the amendment but for arguing it in the same terms as I argued for it on Committee Stage. Needless to say, I have no difficulty in accepting the Minister's amendment now.
I acknowledge that it is important, in debating legislation — when there is a considered view expressed on this side of the House — that it would not be seen in any way as a loss of face to take on board a useful, positive suggestion from the Opposition benches. I agree with the Minister that in the past, various Ministers have not found it possible, even in the face of logic and good argument, to accept amendments from the Opposition benches. I contend that is a bad way of making laws. My experience of Committee Stages of the few Bills dealt with in this session, with both the Minister and his Minister of State — in particular on the Child Care Bill, 1988 — has been of an absolutely clear, co-operative venture, endeavouring to devise the best possible legislation at the end of the day; that is as it should be. It would be my hope that we will continue in that vein.
In relation to the other amendments, while we are discussing them together, does that mean that we may speak only once on them, that I have to talk about Deputy Yates's amendment while I am on my feet?
An Leas-Cheann Comhairle: The Deputy is at liberty to refer to anything contained in amendments Nos. 18, 21 or 22.
Mr. Howlin: If I sit down I will not be allowed intervene again; is that correct?
An Leas-Cheann Comhairle: The Deputy is perfectly correct in that.
Mr. Howlin: I accept the Minister's explanation that the other amendments in relation to section 4 (13) (b) would not be directly related to his amendment No. 17, which I welcome. I welcome the notion of a longer intervening period in the event of unforeseen circumstances where there would be a difficulty with regard to registration, if say, somebody disappeared or the registered owner died. It is necessary that there be a longer period than two weeks in which to allow application for the new registration. Section 4 (13) (b) reads:
A person who has been notified of a proposal under paragraph (a) may, within 21 days of the receipt of the notification, make representations in writing to the health board concerned ...
I am not sure that 21 days represents a suitable timescale in that regard. The import of Deputy Yates's amendment is to increase the timescale to “one clear month”. If I recall correctly our discussion on Committee Stage, I think the difficulty the Minister had was a lack of definition of a clear month. I do not have that difficulty; I understand a month to be a month. I am not overly worked up about that aspect. The more important amendment, with which I heartily agree, has been agreed by the Minister.
Mr. Garland: I would have the same difficulty about a time scale of four weeks or a month. I would contend that, in practice, one month constitutes a much clearer period. For example, if one serves a notice on, say, 2 May — giving one clear month's notice — quite obviously that expires on 2 June, whereas if one starts talking about four weeks someone has to calculate how many weeks there are, which is not always that easy. Also, if we are to accept Deputy Yates's amendments Nos. 18, 21 and 22 — in  which he has stipulated “one clear month”, then we should be consistent. From my reading of legislation I understand it is quite normal to use the term “month”; sometimes the term “calendar month” is used. Whether that would help to clarify matters I do not know.
Mr. Yates: I regret to say that the Minister has created an illusion of accepting something, which clearly he is not, in my amendments. I am disappointed at that. If he is prepared to double the time scale in the case of his amendment it is disappointing that he finds himself unable to accept the time scale laid down in my three amendments, that is moving from 21 days to 28 days, or even “one clear month”.
It is important because these are permanent decisions being taken. There should be a reasonable interval of time to allow people gather their wits about them to make the proper types of submissions. Furthermore, I do not think it obstructs the processing of this Bill. I am disappointed but I will not waste the time of the House by insisting on a vote. On that note of dissatisfaction I will withdraw amendments Nos. 18, 21 and 22 in my name.
Dr. O'Hanlon: I might point out to the Deputy that there is nothing sinister in there being a difference. For example, in Deputy Yates's amendment the 21 days refers to the time within which a person can appeal to the relevant health board to have the case reviewed. The 21 days takes effect only from the time the person is notified of the refusal. It is a question of ensuring that we protect the rights of the people in the nursing home. If a health board refuse to register a nursing home, in order to protect the people in the nursing home the period should not be too long. I contend that three weeks from the time the person is notified of the refusal is sufficient to do justice to the applicant and, at the same time, to protect the people resident in the nursing home.
Amendment agreed to.
 Amendment No. 18 not moved.
Mr. Yates: I move amendment No. 19:
In page 7, lines 37 and 38, to delete “and the person in charge of the home”.
While this amendment was tabled on Committee Stage it was not debated because of the time difficulties, so I am glad to have the opportunity to raise it again. Section 4 (15) of the Bill, as amended in Committee, states:
Where, in relation to a nursing home, there is a contravention of a condition of registration, the registered proprietor and the person in charge of the home shall be guilty of an offence.
My difficulty lies with the “person in charge of the home”, and who that person is. If the proprietor is on holiday, is it the person who is in charge on that day or that week? Is it a registered manager of a nursing home? Could it be a nurse, a general practitioner, or a member of the domestic staff? There is no facility anywhere in the legislation to clarify who the person in charge is and when it is relevant that they be in charge. This is a recipe for chaos and is a recipe for proprietors evading the law. A proprietor who could be guilty of an offence could well say that he was not there on that day and it was so and so's fault, and some scapegoat could be found to rescue the proprietor. The law must be clear on this point. The proprietor is the person who is registered and is the person who is responsible and if there is a breach in the conditions the person who must pay the penalty is the proprietor. Who is in charge and how many people could be in charge are all subjective items which could open a Pandora's box of confusion in trying to deregister somebody. I think that legal opinion would be invoked in District Court appeals on this point and it would be better to delete the reference in this subsection to the person in charge. For example, if people are found drinking after hours in a public house, the proprietor cannot claim that somebody else  was in charge and plead innocence. The licence is endorsed and repeat offences can lead to the loss of a licence so I do not see why we are making a distinction in this Bill between the proprietor and the person in charge. The same applies for hotel licences and all other different forms of law. If we are going to presuppose different management structures in this Bill, it will lead to chaos. This is a flaw in the legislation. It is wrong. It is important that we clarify it in the interests of protecting the patient — ensuring that the proprietor is the named person responsible at all times — and ensuring that some innocent employee would not be made a scapegoat in unfortunate circumstances.
Mr. Howlin: I support the amendment. I do so from the principle that responsibility shared is responsibility diluted. If this Bill, when enacted, is to work, there needs to be somebody clearly designated as the responsible person with total responsibility for implementing the provisions of the Bill and the regulations to be drawn up under it. That person has to have clear responsibility and there can be no doubt about the person's responsibility. The corollary of that is that there is no doubt about their culpability if there is a clear breach of the regulations or the terms of the Bill. It is a mistake to have dual responsibility in this regard. The proprietor must be clearly responsible. Proprietors must know that once this Bill is enacted they will be responsible and there is no way in which they can pass the buck, whether they are absentee landlords, are away on holiday or have other cause for absence; they are responsible and must ensure that the home is run properly at all times. Once this is made abundantly clear to them, we will have a much higher standard. The concept of degrees of culpability: that those on the job have a degree of responsibility while owners have other responsibilities is a way of dividing responsibility. The intention of the Bill to have the highest possible standards will suffer as a result of that. I am sorry we did not have time to discuss this point on Committee Stage  because if we had had time to discuss it, the Minister might have reflected upon it and had good news for us when he came back on Report Stage. Unfortunately this is the first time we have reached this important amendment. Notwithstanding the time factor on Report Stage, I ask the Minister to think again about this. This subsection waters down the responsibility of the person clearly in charge, the owner, and this will cause sufficient confusion and be a sufficient smokescreen to allow some people to think they can cut corners and get away with breaches of the regulations in this regard. I support the amendment and I hope the Minister can accept it.
Mr. Sherlock: I support the amendment very strongly. Surely the registered proprietor should be responsible if there is a breach of regulations. We talked a great deal about the regulations and conditions and so forth and the licence granted to the proprietor. It would be a travesty of justice if one were to say that the person in charge of the home shall be guilty of an offence. The person in charge is likely to be a paid official carrying out his duty as laid down by the employer but the conditions and regulations governing nursing homes is entirely a matter for the proprietor. For that reason I support the amendment.
Mr. Garland: I have listened to what the Opposition speakers have had to say on this and I am not convinced by the arguments they have raised. The wording is quite clear, “the registered proprietor and the person in charge of the home ...” It does not say “or” the person in charge of the home. If the word “or” had been used I would certainly disagree with it. It is quite clear that the section as it stands does not dilute in any way the power to prosecute the proprietor but it merely widens the net to include the person in charge, who may in fact be the real villain of the piece. I think it is far safer to leave it as it is.
Dr. O'Hanlon: While we all want to  achieve the same objective, that is that all homes are registered and maintain the very highest standards, it is a question of whether that can be done better by identifying one person as being responsible or identifying two as being responsible. I am satisfied it is necessary to identify two people because there could be a situation where the registered owners of the nursing home was abroad or could not be found and I believe we must place a responsibility on the person in charge to ensure the regulations are complied with. At present under the existing 1985 regulations, the owner and the person in charge are responsible for complying with nursing home legislation and in my view this should be the same in respect of registration.
Mr. Yates: The Minister gave a very brief reply to a matter that was not debated on Committee Stage. As a result of what the Minister has said, we have entered into a new situation, now there are clearly two people involved, the proprietor and possibly somebody else. A whole series of questions arise out of this. Is there to be a separate register of those in charge?
Sitting suspended at 6.30 p.m. and resumed at 7 p.m.
|Last Updated: 23/05/2011 12:49:37||Page of 77|