Tuesday, 26 May 2009
Dáil Eireann Debate
Minister of State at the Department of the Health and Children (Deputy Áine Brady): Amendment No. 9 proposes that care needs assessments should be undertaken by HIQA. The function of HIQA will be to register and inspect all designated centres, including public, private and voluntary nursing homes. The undertaking of care needs assessments would be outside HIQA’s role and distract from its critical function as a national regulatory authority. It would also represent an inefficient use of public resources. By maintaining the function of undertaking care needs assessments with the HSE, the legislation ensures that the applicant has access to a multi-disciplinary team of health care professionals located close to his or her place of residence. Such health care professionals will simultaneously be engaged in the provision of care, either within the acute sector as part of the primary care teams or in the community setting generally.
The transfer of this function to HIQA would require significant dedicated resources to be provided with the resulting drain on the provision of frontline health care staff from the HSE. The fact that HIQA is a centralised regulatory authority would also represent problems in terms of providing efficient and cost-effective assessments to applicants at local level. For these reasons I do not propose to accept this amendment.
Amendment No. 25 proposes that financial assessments should be undertaken by an independent third party. However, as the HSE would still be making and financing the arrangements, it is questionable how this independence could be achieved or guaranteed. This amendment is also impractical in terms of the use of public resources. It would require a dedicated budget to finance an independent third party organisation. It would also result in the existing officers who administer the subvention scheme and the public long-stay charges system, and who have received no preliminary training in relation to this new scheme, having to be redeployed by the HSE. Finally, it would result in another layer of bureaucracy, with applications being submitted to the HSE but processed by a third party. This is likely to prove inefficient and to raise issues around governance as, for example, to whom the individual would complain if the application is lost or mishandled. There are also issues regarding data protection and confidentiality for applicants to this scheme. For these reasons I cannot accept amendment No. 25.
Similarly, amendments Nos. 84 and 85 propose that reviews should be undertaken by an independent third party appointed by HIQA. For the reasons already outlined, which are that it detracts from HIQA’s core functions, inefficient use of resources and the potential governance issues, I do not propose to accept these amendments.
Deputy Paul Connaughton: Just before the break I was asking the Minister of State what mechanism was available to people who believed they did not get a fair deal on the assessment. I am referring to the opportunity for a person who believes that he or she did not get the full crack of the whip and is genuinely convinced the assessment was wrong. Is there a direct appeal mechanism?
Deputy Áine Brady: A person can request a review, but it must be considered afresh the second time. In other words, they do not look at the first application. Of course, an appeals panel will be appointed by the Minister and if that fails applicants always have recourse to the Ombudsman.
Deputy James Reilly: The Minister of State has rejected what I have said in relation to the independence of the medical assessment. Amendments Nos. 84 and 85 again refer to an independent third party appointed by HIQA, although not necessarily of HIQA. I believe these are safeguards towards the independence of the process. I cannot accept they are a waste of resources, and if ensuring independence of the process, fairness, transparency and accountability — three principles sorely lacking in this and previous Bills, which are currently at the root of what this country is gripped by — that would not be a waste but a very wise use of resources which might save us all much grief in years to come.
Deputy Áine Brady: The existing officers who are administering the subvention scheme, the public long-stay charges, etc., would have to be redeployed. These people have had some initial training and the Deputy is also seeking another layer of bureaucracy.
An Ceann Comhairle: Amendment No. 10 is in the name of Deputy Jan O’Sullivan. Amendments Nos. 11, 18 and 19 are related, therefore, amendments Nos. 10, 11, 18 and 19 may be discussed together by agreement.
In some ways this refers to the previous amendment in Deputy Reilly’s name in that I am seeking to establish where the bar is in terms of a person’s qualification for the scheme. This section gives a whole list of the various things that will be looked at in terms of the care needs assessment, including cognitive ability, extent of orientation, degree of mobility to dress unaided, etc. However, it does not indicate what the level of ability under each of those headings must be for a person to qualify. In other words, we do not know what degree of mobility, for example, a person needs to have in order to qualify. While it lists the different things that will be looked at it does not indicate where the bar will be set and what level a person must reach in order to qualify.
Amendment No. 10 is the only one of the four in my name. I am arguing that instead of saying “as it thinks appropriate” we should say, “based on whether there is a reasonable possibility that the person would not, but for the provision by or on behalf of the Executive of care services, be able satisfactorily to care for himself or herself or to have satisfactory care services provided otherwise”. In other words, I am trying to establish the criteria for a person to qualify under the various headings.
It is a major flaw in the Bill that we do not actually know where the care needs assessment will set the line. Again, this relates to my concern about the capping of the resource because I wonder whether as the resource is depleted a person will have to be more and more disabled or dependant in order to qualify. Will it mean that the type of people Deputy Connaughton was talking about earlier, for example, will not be included and also, perhaps, many of those people in nursing homes at the moment who do not have families to look after them? Such people would need a considerable amount of care if they had to live at home. The home help services, while being great aspirationally in terms of home help teams, packages, etc., within the HSE, in reality are often not there for the family concerned.
I am therefore trying to set some type of bar at which a person will qualify. My fear is that it will be dependent on the amount of money available, and if there is not too much money, a person will practically not be able to move anything him or herself in order to qualify. That means a great many families will find themselves in the position whereby they do not have any facility for their loved one. As I said earlier, it is very wrong that we force elderly people to worry about how they will be looked after and make them feel they are a burden on their families when the State should be providing for them. I want to get some sense of a standard that will apply across the system, which will not vary, or depend on the amount of money available at the time.
Deputy James Reilly: I support Deputy Jan O’Sullivan in respect of this matter. I am of the view that amendment No. 10 should be accepted. A person’s medical circumstances could change dramatically but, under the legislation, the review will not take place for six months. The period is far too long and it must either be shortened or a provision put in place to take account of a change in a person’s medical circumstances.
I wish to raise my serious objections to the manner in which this extremely important legislation is being dealt with. We have not yet managed to dispose of even one sixth of the amendments. In addition, the Minister for Health and Children is not present to take the debate. I accept that she may have business elsewhere. However, the reality is that if a guillotine were not being applied, she should have dealt with some of the more salient matters relating to the legislation.
The final two amendments tabled in respect of the Bill relate to the rights of people with regard to the capping of other assets and qualifying criteria. We will not have the opportunity to discuss this matter, which is a key part of the legislation. Amendment No. 125 in the Minister’s name states:
However, it also states that paragraph 7 shall not apply unless “the person receiving care services has suffered a sudden illness”. This will give rise to a fiasco whereby medical professionals and others will be obliged to determine what constitutes a sudden illness. Will doctors be placed under pressure to say that people have suffered a sudden deterioration in their conditions or will the provision only apply in respect of those who suffer strokes? This will prove to be unworkable.
This will return us to feudal times. The Minister wants to enter people into bondage on the land. They must sign up to state that they will remain on and work the land regardless of whatever changes may occur with regard to their financial, personal or other circumstances. They will be tied to the land and a period in respect of which this provision shall apply is not defined. That is outrageous.
The Ceann Comhairle has been extremely kind in allowing me to discuss this amendment, which we have not yet reached. I strenuously object to the manner in which this debate is being conducted, to the way it is being guillotined and to the fact that some of the core issues relating to the Bill have been left until last. On that note, I wish to call a quorum.
Deputy Áine Brady: Amendments Nos. 10 and 11, which relate to determinations on care needs assessments, are already addressed in the legislation. Amendment No. 10 seeks to provide that the HSE shall take into account whether a person is capable of caring for himself or herself or of having care services provided. However, section 7(6) already provides that the care needs assessment must take account of the services and supports available to a person and any other matter likely to affect his or her ability to care for himself or herself. As such, the assessment will encompass these matters and the HSE’s determination will then be based on the findings of the assessment. It is difficult to set a bar because each individual case is different. The care needs assessment is holistic in nature and takes into account the family and community supports available to a person.
Amendment No. 11 seeks to stipulate that a determination may be revised where a person’s care needs are materially altered. This is already provided for under section 8, which ensures that a person can seek a review of his or her care needs and clarifies the basis for such a review. For these reasons, I do not propose to accept amendments Nos. 10 and 11.
Amendments Nos. 18 and 19, which seek to reduce the timeframe for reviews under section 8 are also unnecessary. This is because a person can seek a review prior to the expiration of the six month timeframe if certified by a medical practitioner as having experienced a material change in health or circumstances or if the HSE is satisfied that this has occurred. For these reasons, I do not propose to accept amendments Nos. 18 and 19.
Deputy Áine Brady: A number of Deputies expressed concern on Second Stage and Committee Stage regarding the treatment of farms under the Bill. In particular, they indicated their concerns with regard to the potential impact of the 5% annual contribution on the sustainability of family farms and businesses specifically in situation where care is required from an early age and for a prolonged period. This issue was also raised by stakeholder groups.
Amendments Nos. 117, 118, 120, 121 and 125 reflect a commitment the Minister made on Committee Stage to consider extending the three-year 15% cap to farms in certain circumstances. At the time she stated that any beneficial measure extended to farms would, in the interests of equity, also have to be extended to businesses. The amendments provide that a farm or business shall be taken into account within the financial assessment for three years only in circumstances where a person has suffered a sudden illness or disability which causes them to require long-term residential care; where a person or his or her partner were actively engaged in the daily management of the farm or relevant business, as the case may be, up until the advent of the sudden illness or disability; and where a family successor certifies that he or she will continue the management of the farm or relevant business, as the case may be. In the case of couples, the measure will apply where the applicant suffers a sudden and unforeseen illness and where either or both members of the couple have been involved in running the family farm or business. This stipulation is in keeping with the principle of joint assessment of couples.
This proposal necessitated new definitions of the following words “business”, “family successor”, “farm”, “farming”, “relevant business” and “unquoted”. I ask Deputies to accept these beneficial amendments.
Deputy Jan O’Sullivan: The Minister of State said my amendment will not be necessary because of what will be assessed but the Bill does not state what account will be taken of these matters or how bad one must be in order to qualify. That is a major flaw in the Bill and the assessments will be very subjective. What one HSE official decides is a level of dependence for which a person qualifies, another might decide is not. The bar might be set differently in different parts of the country and that is not fair.
The issue of farms is of particular concern to my colleagues in Fine Gael and I share their concern. Coming from the county where “The Field” was written, the Ceann Comhairle understands the deep feelings Irish people have about family farms and continuity. This measure will have major resonance in Ireland. I am not sure the amendments proposed by the Minister of State fully address the concerns expressed by my colleagues in Fine Gael.
Deputy Paul Connaughton: There was a great debate on this point on Committee Stage. The Minister was present for the debate and gave an undertaking to revisit this matter. This is the greatest sidestep I have seen in a long time. This amendment does not help the people I spoke about on that day. Deputy Dan Neville raised the matter the Minister has addressed but she did not address the lack of a cap on farms owned by the person in the nursing home or that person’s spouse. Under normal circumstances, where someone who owns a house and a farm goes to a nursing home, the valuation of the house will be capped at 5% for three years. We do not like this concept but in the times we are in it appears there is no alternative. The amended legislation provides that, if a farmer with 40 acres of land remains in a nursing home at rates of €800 per week, which will be normal in years to come, no cap is put on the assets of the business or farm, unlike the three year cap on the residential house. Taken to its logical conclusion, with agricultural land valued at €10,000 per acre, the 40 acre farm is worth €400,000. At €800 per week over ten years, the cost of nursing home care also equals €400,000. When that person is called away from this world, the Revenue Commissioners will own the farm rather than the son or daughter who had hoped to inherit it. There is an important rural culture in Ireland, as rural Deputies from any party will confirm, that it is expected that a son or daughter who helps his or her parents will inherit the farm.
The amendment proposed by the Minister of State does not cover the type of case I referred to on Committee Stage. This is the problem every farming family will see after this legislation is passed. There is no way Fine Gael will back this legislation because of this fundamental flaw. The amendment tabled by the Minister of State is better than having none but the Minister of State and the senior Minister should not think they are getting around the principle problem of the farming community by tabling this amendment because it has nothing to do with the principle on which I spoke.
The Minister of State comes from the same part of the world as I do and she fully understands the expectation one generation has of the previous generation, namely, that the younger generation will inherit the farm. Can the Minister of State imagine the bitterness in families? This measure will split families. If this measure is brought to its logical conclusion, the Revenue Commissioners will own the farm after ten years. On behalf of every farming family in the country, I could not be more opposed to this oppressive legislation.
Deputy Seán Ó Fearghaíl: Enshrined in this legislation is the principle that nobody will pay more than the cost of care. From the debate on Committee Stage, I understood that the Minister, Deputy Mary Harney, would listen to the points raised so eloquently by Deputy Connaughton on Committee Stage and take them on board. The amendments tabled by the Minister of State appear to take on board the concerns expressed and have gone further in embracing the business community at large, not just the agricultural community. I am sure the Minister of State will clarify this point.
Deputy James Reilly: Indeed, and those who have inherited it like to hold onto it and not have it taken from them by the Minister and the Revenue Commissioners. Regarding what Deputy Ó Fearghaíl said, in sections 7(8) and 7(9), the Minister gives the lie to the fact she is taking into consideration the matters raised by Deputy Connaughton and others. She has raised the issue and then, in section 7(8), she takes it away unless one is the victim of a sudden illness. No other circumstance will apply. One may develop Alzheimer’s, become infirm over the years or develop multi-infarct dementia or cancer. When we are older, these disease can be far slower in taking one away. Cancer in a young person can be aggressive and lead to someone’s demise within four to six weeks, while it may go on for five years in an older person and something else might be the cause of the person’s demise. In the interim the person has become enfeebled and needs care.
As my colleague has pointed out, with a farm worth €400,000, care could amount to €800 per week, and getting 20% back this amounts to €30,000 per year, or €300,000 after ten years. At this point the Revenue Commissioners will take the farm. The relative, who may have toiled on the farm for a subsistence wage in the expectation of inheriting it, will inherit nothing but a bill from the Revenue Commissioners and a forced closure. That is what my colleague pointed to and the reason we object to this so strongly.
The issue is not confined to farming and is relevant to all small businesses where people have lived over a shop, for example, and a nephew has taken over, or where there are two or three siblings living and aging together.
Deputy James Reilly: We are curtailed by time. There are many elderly people in the country who have been encouraged to let younger people on the land or who have let their land. Are they being described in 8(b), which states, “a substantial part of the working day of the person requiring care services or his or her partner was regularly and consistently applied to the farming of the farm”? What interval does this relate to?
This legislation is very loose and unworkable and smacks of the bad old days of feudalism. It is unconscionable that anybody would even think of putting it down on paper. It beggars belief and will be utterly opposed.
Deputy Áine Brady: With regard to the issue of care need assessment as raised by Deputy Jan O’Sullivan, there will be a multidisciplinary team in each HSE region and the HSE has agreed a national common needs assessment summary to standardise the procedure.
Deputy James Reilly: The Department was not meant to see that as exclusive. I hate to interrupt the Minister of State and I have not done so before. She is intimating that the IFA may have asked that sudden illness be taken into account but it did not ask that this would be the only way illness would be taken into account. The Minister of State has reversed its request to exclude 99% of people in this position.
Deputy Áine Brady: The other request from the farming organisations related to cases involving a family farm business where the successor would depend on the farm for a living or part thereof. Older people are encouraged to plan and sign over farms to their successors, and it is presumed that somebody who has become infirm over a number of years would have done this many years previously.
An Ceann Comhairle: Amendment No. 12 is in the name of the Minister and arises from Committee proceedings. Amendments Nos. 12, 23, 30, 32, 34, 42, 43, 50, 58, 71, 72, 74, 75, 77, 79, 86, 89, 90, 91, 92 and 93 are related. Amendment No. 13 is an alternative to amendment No. 12, amendment No. 24 is an alternative to amendment No. 23, amendment No. 31 is an alternative to amendment No. 30, amendment No. 33 is an alternative to amendment No. 32, amendment No. 73 is an alternative to amendment No. 72, amendment No. 76 is an alternative to amendment No. 75, amendment No. 78 is an alternative to amendment No. 77, amendment No. 80 is an alternative to amendment No. 79 and amendment No. 90 is an alternative to amendment No. 89. The amendments will be discussed together.
I will speak to amendments Nos. 12, 23, 30, 32, 34, 42, 43, 50, 58, 71, 73, 74, 75, 77, 79, 86, 89, 91, 92 and 93. On Committee Stage the Minister indicated she would consider a number of issues relating to timeframes. She indicated she would consider the reduction of timeframes for notifying applicants from 15 working days to ten. Amendments Nos. 12, 23, 32, 34, 43, 58, 73, 89, 91 and 92 reflect that commitment. They provide that the HSE must notify an applicant of any decision within ten working days of making that decision.
The Minister also committed to considering an issue raised by one stakeholder in regard to the standardisation of the timeframes within the Bill. Accordingly, amendments Nos. 42, 50, 74, 75, 77, 79, 86 and 93 seek to standardise the timeframes in the Bill with a few notable exceptions so that all refer to working days rather than days. This is beneficial from the perspective of administrative simplicity and will also ensure greater clarity for applicants to the scheme.
The Minister also indicated she would accept current amendment No. 31 as proposed by Deputy Reilly. However, I propose amendment No. 30 in place of amendment No. 31 in acknowledgement of the standardisation of timeframes as they relate to the working day as outlined above.
Amendment No. 71 reflects a commitment to Deputy Reilly to increase the timeframe for nursing home proprietors notifying the HSE. It proposes to increase the timeframe from 48 hours to three working days in cases where a resident dies or is discharged and requires the nursing home proprietor to notify the HSE. I ask the Deputies to support all these amendments.
I note amendment No. 72 submitted by Deputy Reilly, which proposes to alter the timeframe for notification by the HSE to a nursing home of an alteration in the level of financial support provided to a person from 15 working days to immediately. I emphasise that this timeframe will be reduced to ten working days.
I also clarify that the amendment is unnecessary. As mentioned previously, the HSE will provide financial support on behalf of individuals by way of bloc monthly payments to nursing homes rather than on a weekly basis. As such, the timeframe of ten working days will allow the HSE notify a proprietor of all alterations in the level of financial support payable to all residents within the nursing home at the time of or prior to making bloc payments. From an administrative perspective, this will enable a more efficient approach to be adopted.
Where a person’s level of financial support alters, he or she will be notified within ten working days. Any timeframe for notifying the nursing home proprietor must be consistent with this and I cannot commit to a timeframe that would result in more beneficial treatment for the nursing home proprietor than the nursing home resident, as that would be disrespectful to the resident. For such reasons, I cannot accept the amendment.
Amendments Nos. 76, 78 and 80 all propose to amend the timeframe for notification of a change in circumstances of a connected person from 30 days to three months. This timeframe will generally relate to where a person has sold the principal private residence or has ceased to qualify as a connected person. As such, the timeframe outlined in the Bill must be considered in conjunction with the timeframe for notifying Revenue of amounts due for collection. For this reason, I do not propose to accept amendments Nos. 76, 78 and 80.
Deputy James Reilly: I appreciate the Minister has moved some way to meeting our concerns with some of the amendments she alludes to. Some amendments were discussed earlier in a batch rather than individually. I seek indulgence to be able to go through these amendments as some are without objection from me as the Minister of State has come some of the way. If I looked for 15 days, for example, the Minister of State has given me ten, and that is fine. I do want to be specious in disputing such matters. There are areas where the Minister has not moved and I would like the option of having them addressed individually so we know which we are dealing with.
The Minister of State used the term “administrative ease” a number of times in her speech. I accept we all want efficient administration and we do not want to make it any more difficult for administrators than is necessary. My concern, which ought to be shared by the House, is for the elderly and citizens who must avail of these nursing home facilities. Administrative ease will always take second place, as far as I am concerned, to the needs of our elderly and the protection of their rights.
Deputy Paul Connaughton: One of the amendments arose because many nursing home owners and administrators were concerned that, with the poor track record of the Department of Health and Children and the Health Service Executive, HSE, they would not be able to draw down the funding necessary to keep their operations going. The Minister of State said that because the block grant would be paid monthly, there was less chance there would be a problem. What would happen if the HSE could not come up with the money for the homes?
Deputy Jan O’Sullivan: Quite a number of amendments are being taken together. I welcome the Minister of State meeting Opposition amendments. However, on the notification of changes in circumstances of connected persons from 30 days, the Minister’s amendments propose 20 working days, which is really the same period. In circumstances such as the death of a spouse, it is reasonable to allow for more than a month and my amendments sought a period of three months. It would give a certain leeway in circumstances in which a family may have other matters to cope with and may require more time to notify the HSE.
Deputy Áine Brady: Amendment No. 39 stipulates the periodic basis for ancillary State support shall not exceed two months. This approach acknowledges the administrative reality that the State will provide financial support by transferring funds in block payments to the nursing home monthly or mostly bi-monthly. By enabling the Minister for Health and Children to specify the exact period in writing, the primary legislation retains flexibility. This will ensure it remains responsive to evolving situations and growing social or economic sectors.
This amendment reflects the commitment given to Deputy Reilly on Committee Stage to provide that care needs assessments may be shared with nursing homes. The amendment acknowledges that care needs assessment reports can be a key tool in discharge planning from an acute care setting. Critically, it also acknowledges that the provision of a care needs assessment report to a nursing home is ultimately a matter for the individual or, where relevant, the individual’s representative and the nursing home.
A care needs assessment report will contain sensitive information regarding the person’s health and well-being. It would not be appropriate for the HSE to ignore a person’s right to confidentiality in this regard. Specifically, it is considered that the provision of the care needs assessment report to a nursing home without a person’s prior consent would be a contravention of section 2(b) of the Data Protection Act 1988, as amended by the Data Protection (Amendment) Act 2003 — processing of sensitive data. I ask the House to support this amendment in place of Deputy Reilly’s resubmitted amendment No. 15.
I accept the good intention underlying amendment No. 17. However, the Bill contains sufficient provisions to ensure a person receives assistance in applying for a care needs assessment, where necessary. Section 7 enables a specified person, including a medical practitioner, to apply for a care needs assessment on a person’s behalf. In addition, there is nothing to prevent any person from offering assistance in the completion of application forms. I understand medical social workers regularly assist patients and their families in this regard. The HSE will be producing information leaflets and explanatory material on the scheme. Preliminary work has commenced on this. A further provision in this matter is unnecessary. The proposed provision could leave the HSE legally vulnerable in determining when the statutory requirement to offer administrative assistance amounts to applying on a person’s behalf. There would be a potential conflict of interest should the HSE apply on a person’s behalf. For this reason, I do not propose to accept amendment No. 17.
Deputy James Reilly: My amendment No. 17 seeks to ensure there is an identifiable individual, not necessarily from the HSE, and that there is some onus of responsibility placed on some third party to ensure people get the requisite help needed. Some mechanism should be in place which would allow an identifiable third party, say a family solicitor or the executor of a will, to represent a patient who has become slightly confused. The patient may be compos mentis under the definition of the legislation but that may not necessarily mean he or she could get through the system on his or her own owing to mild confusion or illiteracy.
Deputy Áine Brady: Yes. The Minister believes it should not be a case of only certain people being allowed to be selected. Medical social workers already undertake this role of assistance. Under sections 21 and 47, a family can nominate any person they wish to fulfil the role, including a solicitor or doctor. The HSE cannot do this directly because of a conflict of interest.
Taken collectively, amendments Nos. 16 and 114 streamline the Bill’s provision in respect of non-court appointed representatives. Their aim is to ensure a clear and coherent approach on the issue of non-court appointed representatives by providing for such representatives comprehensively in a single section of the Bill, rather than being spread over two sections. The amendments make it clear that a representative should only be able to act on behalf of the applicant if the latter lacks capacity. This is important as the specified person is explicitly empowered to apply for State support and to review and appeal decisions. However, it should be noted that section 7 still allows a specified person to request a care needs assessment on behalf of a person where that person is unable to so do because of ill health, a physical disability or a mental condition, that is, it is not simply restricted to cases of diminished capacity.
The list of specified persons has been amended in two key respects. Importantly, it now stipulates that those with formal authority to act on behalf of a person of diminished capacity, such as for example the committee of a ward of court or a person appointed under the enduring power of attorney, are recognised ahead of those without such formal authority. In addition, following observations by stakeholders, the final category has been expanded to include registered nurses and registered social workers. Previously, this category had been limited to medical practitioners. Finally, the amendment also provides additional protection for the applicant by empowering the HSE to refuse to deal with a person if it has concerns that the person either does not qualify as a specified person or is not acting in the interests of the applicant. I ask Members to support these amendments.
Amendment No. 20 seeks to clarify that a specified person may apply for State support on behalf of an applicant. The amendment is not necessary as section 47 already provides that a specified person may act on behalf of the applicant in respect of this matter. For this reason, I do not accept amendment No. 20.
Deputy Jan O’Sullivan: There is sense in the Minister of State’s amendments particularly in respect of amendment No. 114, which is quite detailed. It is important to be clear in these matters as to who can represent a person because unfortunately there are cases in which advantage can be taken of elderly people who are unable to make decisions for themselves. There can be unscrupulous family members or others who are connected to people who might pretend to act in the interests of such people while in fact acting in their own interests. Consequently, I welcome that further thought has been given to this issue. I hope it is watertight and is in the interests of the elderly person, which is what all Members seek.
Basically, the purpose of all three proposed amendments is to insert the word “reasonably” and pertains to the information the HSE seeks when making the assessment. The Bill as it stands states, “shall furnish all information which the Executive may request in connection with the consideration of the application”. I suggest the phrase should be “reasonably request” and my reason for so doing is that at times, people have great difficulty when applying for items and can be asked constantly for more information. Although they supply what they think is all the requisite information, they then are informed that other information, such as a bank balance statement or something similar is required.
I made the point on Committee Stage that this trend is obvious in respect of applications for third level grants. One may appear before one’s local authority in the belief that one has brought in everything but its officials respond by requesting a household bill from where one lived two years previously or whatever. Such applicants can be reduced to tears at times because they are asked for so many new items every time they visit the office. My purpose in tabling this amendment was to achieve a sense of reasonableness about the information that would be required by the HSE. Obviously one must provide everything necessary to make a fair assessment of whether a person should qualify but if the HSE is given carte blanche in this regard, it could seek all sorts of extraneous information that is not relevant. Moreover, it also could ask for new information each time an applicant thinks he or she has completed the application. In summary, the purpose of these amendments is to achieve a sense of reasonableness in this regard and to ensure that people are not sent through all sorts of unnecessary hoops when making an application.
Deputy James Reilly: I support my colleague, Deputy O’Sullivan, in this regard. It is eminently reasonable, if Members will pardon the pun, to insert this word. There has been a sense that attempts have been made in the past by various arms of the State to frustrate people in their rights by creating additional hurdles for them to jump over. Clearly this would be a classic case, particularly as one is dealing with a vulnerable group. One can imagine an elderly man trying to process such information for his unwell sister or vice versa. This group is vulnerable and people should not seek unreasonable amounts of information. There ought to be a limit and someone must arbitrate as to what is reasonable in this regard, in order that applicants at least have some rights and do not end up being completely frustrated as do many people, who give up after three or four attempts to deal with State machinery and who do not receive their entitlements. Consequently, I support this amendment.
Deputy Áine Brady: Amendments Nos. 21, 22 and 29 relate to the application for State support and the financial assessment of means. They propose to qualify requests for information by the HSE by stating that such requests should be reasonable. While I accept the good intention of the Deputy that underlies these amendments, all information requested by the application form for the scheme or during the course of the financial assessment will be necessary for the purposes of the scheme. Furthermore, the Parliamentary Counsel has cautioned against accepting this amendment as the term could be legally ambiguous and could undermine the authority of the HSE to request necessary information. Accordingly, I do not propose to accept amendments Nos. 21, 22 and 29.
Deputy Paul Connaughton: For clarity, is it possible for the Minister of State to give a commitment to the House this evening that only the information that is originally sought will be required? In other words, the normal information that one would expect to be sought for such an application. Members fully appreciate that, as Deputy O’Sullivan noted, reasonable questions must be asked and no one is making a case against that. While the information sought obviously must be specifically demonstrated and clearly illustrated to the person concerned, will the Minister of State give a commitment that no further information will be needed thereafter? In other words, a person would not need to spend an hour in a bureaucratic way drawing up a list of other items that would be required, even though this was not specified on the application form. Will the Minister of State give a commitment that this will not be the case?
Deputy James Reilly: To follow on from that, for related but not specific information there is a sense in Nursing Homes Ireland that it is being asked to give full disclosure of its accounts in regard to its dealings with the NTPF, which it feels is grossly unfair. If there is failure to agree with the NTPF and a third party arbitrator wants to have a look at its accounts in order to settle the matter, that would be eminently sensible.
This brings us to the second part, namely, that there is no appeals mechanism for nursing homes if they do not satisfy or fail to come to an arrangement with the NTPF. They are simply cut off and there is no justice in that. There needs to be third party arbitration somewhere within the scheme to allow for a situation where a nursing home and the NTPF fail to reach agreement. One cannot put people out of business without having some third party arbitration given that the NTPF will have a monopoly and will be the sole body dealing on behalf of the State.
Those two issues need to be considered. I ask that the Minister of State consider them and ensure that unreasonable information is not sought. I agree with Nursing Homes Ireland that to be asked to lay one’s audited accounts before the NTPF before one even begins negotiations seems unreasonable and may introduce a cost to some of the smaller, family-run nursing homes which might not have audited accounts.
Deputy Jan O’Sullivan: To make some progress, will the Minister of State give an undertaking that in the guidelines that will be drawn up in regard to this legislation, the family concerned would be given a list of all the requirements on their first visit or when they are making the application, and that this list would not be added to at a later stage. In other words, when the family first makes the application, they would be told in writing exactly what items of information are required so, when they come back, they are not given further items to search for. If this was included in the guidelines, it would address the concerns we have highlighted.
Deputy Áine Brady: The Department of Health and Children has undertaken that it will examine the whole area and there will be a review in three years to check whether there have been any problems. The Department will also review the draft application form to ensure that it will only seek necessary information. I will have to check with regard to any legal ambiguity regarding the point that requests should be reasonable. The Ombudsman is also open to examining complaints where there is any undue delay. The review of the scheme in three years should pick up any problems and the fact we are reviewing the draft application form will ensure we are not looking for information that is not necessary.
Deputy Jan O’Sullivan: In many applications, such as applications for housing through a local authority, for example, there is a list on the back of the form of the items one must bring along, such as a birth certificate, photographs and so on. We are seeking something similar, namely, one would be given the list in writing when one is making the application. I ask the Minister of State to take this on board.
Deputy Áine Brady: I am unable to give such a broad commitment today. My understanding is that a list of all the items one must bring in regard to the application will be contained on the application form. Given that we are now reviewing the draft application form, which has already been drawn up, we will be able to ensure all the information is included.
Again, we come back to the principle of independent assessment. Whether it be in health, finances or financial evaluation, there needs to be independence and transparency. We have no way of being assured that people who are appointed and who are, therefore, in some way tied to the HSE or other bodies will act in the best of faith. They may start off that way but they may find pressure is brought to bear on them as time goes by. We want to ensure independence and transparency, which is the reasoning behind the two amendments. I hope the Minister of State will see they are reasonable and accept them.
Deputy Áine Brady: Amendments Nos. 27 and 28 propose to remove the right of the HSE to appoint a suitable person to value assets and stipulate that any valuation must be undertaken by an independent third party. First, it should be noted that individuals will be submitting their own valuations alongside their application form for State support. As such, this provision is merely a necessary safeguard within the legislation. It provides for the right of the HSE to undertake valuations at its own expense, which is imperative from the perspective of accountability and the HSE’s audit functions. Furthermore, this amendment will be problematic as the HSE will meet the cost of any valuation requested under section 10. As such, it is questionable whether the valuer authorised and funded by the HSE could be deemed to be an independent third party. It is, therefore, not proposed to accept amendments Nos. 27 and 28.
Deputy James Reilly: The Minister of State has acknowledged my point that the person who is being appointed and paid for by the HSE cannot be construed as being independent. That is what this amounts to. We want an independent assessment and we want people to be protected. We do not want a scenario arising where people are afraid to lose their contracts and, therefore, find favour more with the State than with the individual whose premises they are valuing. I rest my case.
Deputy Paul Connaughton: This could turn out to be a very serious matter. Over the years, there have been many good debates and robust exchanges on the valuation of farms. There is no exact science in this regard. Normally, the Valuation Office would have the average prices that were paid either for buildings, houses or lands in various areas throughout the country. The problem is that there is always a much higher price above and beyond the level that normally pertains in the area. That is one of the reasons I have always thought this could become problematic. I find it difficult to understand why there is no independent appeals mechanism in this area. People who have spent a lifetime doing land valuation find it extremely difficult. Basically, we are talking about the concept of an open market price. The price achieved at an auction depends on who is bidding. Variations in the number of bidders can make a difference of between €30,000 and €60,000 in the price achieved for two houses of the same size and in similar locations. Who is to say what is the right market valuation? There is a huge issue here. I do not think the measure being presented by the Minister of State will work in these circumstances. We need a means of referring back to some type of independent valuation system. It is obvious that the proposed measure could lead to court proceedings. Of all the matters about which we have spoken, the question of valuations is the most likely to be contested in a court of law. In light of the complexity of this issue, I am surprised the Minister of State has not seen fit to provide for an independent assessment. As this is a very complex matter, it might be advisable to provide for some sort of tribunal where all of these issues could be taken into account.
Deputy Jan O’Sullivan: I support the points that have been made. This very tricky area could well end up in the courts. I think an independent system would have a better chance of surviving any court challenges. I assume the Minister of State has received legal advice. It would be interesting if she could share it with the House.
Deputy Áine Brady: Generally, we expect the applicant’s valuation to be accepted. This amendment, which is a safeguard, will ensure that the HSE will pay for it if it disputes the applicant’s valuation. Deputy Reilly’s amendment would require the HSE to fund the cost of the valuation. Under the legislation as it stands, the HSE will not seek a second opinion unless the applicant’s valuation is disputed.
Deputy James Reilly: The Government wants the elderly person to pay for his or her house to be valued. It also wants the HSE to have the right to employ someone to value the house on its behalf. What will happen then?
Deputy Paul Connaughton: No. If I may say so, the Minister of State is missing our point. If there is a difference of opinion between the applicant and the HSE, where will all of this go? What will be the next step at that stage? Who will decide which participant’s valuation will be accepted? That is the question.
Amendments Nos. 35 and 48, which reflect commitments made to Deputy Reilly on Committee Stage, will remove the right of the HSE to cease paying financial support when a person fails to pay his or her contribution. This is appropriate, given that the payment of the contribution is a private matter between the individual and the nursing home. I urge Deputies to support amendments Nos. 35 and 48, which achieve the intention of amendments Nos. 36 and 49.
The purpose of amendment No. 37 is to ensure that, in the case of couples, both members of the couple apply for ancillary State support. At present, both members of the couple must request the payment of ancillary State support only where the other member has an interest in the asset concerned. However, this stipulation could give rise to an unintentional administrative burden. This is because in interpreting what constitutes an interest in an asset, the HSE may be obliged to undertake an investigation of title. Such a course of action would delay the applicant in accessing support and would be detrimental from the perspective of administrative efficiency. In the interests of clarity and efficiency for both applicants and administrators, I propose to simplify this section of the Bill in order that an application is always made by both members of a couple. The simplification of this procedure should remove any confusion or ambiguity for applicants to the scheme. This amendment is accompanied by a regulation provision, amendment No. 44, which enables the requirement for both members of a couple to apply for ancillary State support to be waived in certain circumstances. I ask the Deputies to support these amendments.
Deputy Jan O’Sullivan: What will happen if one member of a couple wants to apply but the other does not? Has provision been made for a dispute within a couple? Couples do not always agree on everything, a Cheann Comhairle.
Deputy James Reilly: We need more clarification. With no disrespect to the Minister of State I think she is also a little confused by this. Given that the Bill will pass we should at least do the public the service of understanding what we will vote on.
Deputy Áine Brady: The requirement to interpret what constitutes an interest in an asset could also render the scheme vulnerable for the following reason: if the HSE interprets an interest to refer only to a beneficial interest then, notwithstanding other legislative provisions, this could leave it open to challenge when the time comes to collect the repayable amount, for example, a married person could claim to have an interest in his or her partner’s asset even though his or her name does not appear on the title deeds. In such a case the spouse not having a beneficial interest would not have formally requested ancillary State support thereby consenting to the creation of the charge and could subsequently seek to contest the validity of the charge. On the other hand, if the HSE asks both members of a couple to request support in cases such as the one I have outlined the couple may point out that it is not required under the legislation as the term “interest” is not defined and refuse to comply. In such a case it does not appear that the HSE could subsequently refuse to deal with the application.
Deputy Paul Connaughton: What would happen in a case where the couple are the beneficial but not the legal owners of the asset, if for example, they are not registered in the Land Registry office but have been in possession of the asset all their lives? There are thousands of such cases around the country. Where would they stand in so far as this legislation is concerned?
Deputy Jan O’Sullivan: I am still concerned about a couple who might not agree. It is feasible that one partner would say that he or she is not allowing his or her future family home to be paid into a nursing home for the other partner’s mother or father. I am not condoning this but saying that it could happen. There is a great deal of difficulty in it. I can see why the Minister of State might want to tie it up because if there is disagreement and this is not in the legislation it can cause problems but there will be problems either way if there is disagreement. The courts could be dragged into this procedure too. I appreciate that it is difficult no matter which the Minister of State does. Can she clarify this any further?
Deputy James Reilly: I accept what the Minister of State is attempting but she could find herself in conflict with property rights. Many married couples who remain married but live apart still have legal rights over one another’s property. One partner might seriously object to any possible diminution of the property if he or she knew that someone was ailing and needed to go into a nursing home. This could cause serious difficulties for people who need to avail of the scheme if a truculent individual does not want to co-operate. This might apply not only to an in-law but to an estranged spouse who still has rights in law. This will require much more work because it cannot fly as it is, although I understand what the HSE and the Minister of State are attempting.
Deputy Paul Connaughton: If that is the case nobody will register their property. If people knew that if they were not registered, even though they were in possession of their house, would it not be to their benefit not to be registered owners?
Deputy James Reilly: I am coming at this from a different angle. My concern is that the patient who requires care will be disadvantaged and frustrated in his or her attempt to attain that care by the unwillingness of the estranged spouse or even of a spouse who is in the house but has a particular mindset and will not co-operate. The patient is disadvantaged. The Act needs to accommodate this possibility. This will not cover it. This will seriously disadvantage people who find themselves in that situation.
An Ceann Comhairle: Amendment No. 38 arises out of committee proceedings. Amendment No. 39 is related and is an alternative, therefore, amendments Nos. 38 and 39 may be discussed together by agreement. Deputy Reilly has approximately one and a half minutes to speak.
Deputy Áine Brady: Amendment No. 38 proposes to remove the right of the Minister to specify the periodic basis on which ancillary State support will be paid. This right is necessary, however, from a practical administrative perspective. The legislation provides for the weekly means of an applicant to be assessed and a weekly contribution to be calculated. While a person will make his or her contribution on a weekly basis in practice the State will provide financial support by transferring funds in block payments to the nursing home on a monthly basis. This is consistent with current practice under the subvention scheme whereby a weekly maximum basic subvention of €300 is payable under law but is paid to nursing homes on behalf of their residents on a monthly basis. It is therefore not proposed to accept this amendment.
I accept, however, the Deputy’s point in this regard that the periodic basis for payment of ancillary State support is open-ended and unqualified. In order to address this concern I propose to move amendment No. 39 in place of amendment No. 38. Amendment No. 39 stipulates that the periodic basis for ancillary support shall not exceed two months. This approach acknowledges the administrative reality that the State will provide financial support by transferring funds in block payments to nursing homes on a monthly or at most bi-monthly basis. By enabling the Minister for Health and Children to specify the exact time period in writing the primary legislation retains flexibility. This will ensure that it remains responsive to evolving situations in growing social or economic sectors. I ask Deputies to support this amendment.
An Ceann Comhairle: As it is now 10 p.m., I am required to put the following question in accordance with an Order of the Dáil of this day: “That the amendments set down by the Minister for Health and Children, and not disposed of, including those in respect of which recommittal would in the normal course be required, are hereby made to the Bill; Fourth Stage is hereby completed; and the Bill is hereby passed.”
|Ahern, Dermot.||Ahern, Michael.|
|Ahern, Noel.||Andrews, Barry.|
|Andrews, Chris.||Ardagh, Seán.|
|Aylward, Bobby.||Behan, Joe.|
|Blaney, Niall.||Brady, Áine.|
|Brady, Johnny.||Browne, John.|
|Calleary, Dara.||Carey, Pat.|
|Collins, Niall.||Conlon, Margaret.|
|Connick, Seán.||Cowen, Brian.|
|Cregan, John.||Cuffe, Ciarán.|
|Cullen, Martin.||Curran, John.|
|Dempsey, Noel.||Devins, Jimmy.|
|Dooley, Timmy.||Fahey, Frank.|
|Finneran, Michael.||Fitzpatrick, Michael.|
|Fleming, Seán.||Flynn, Beverley.|
|Gogarty, Paul.||Gormley, John.|
|Grealish, Noel.||Harney, Mary.|
|Haughey, Seán.||Healy-Rae, Jackie.|
|Hoctor, Máire.||Kelleher, Billy.|
|Kelly, Peter.||Kenneally, Brendan.|
|Kennedy, Michael.||Kirk, Seamus.|
|Kitt, Michael P.||Kitt, Tom.|
|Lenihan, Brian.||Lenihan, Conor.|
|McEllistrim, Thomas.||McGrath, Finian.|
|McGrath, Mattie.||McGrath, Michael.|
|Mansergh, Martin.||Martin, Micheál.|
|Moloney, John.||Moynihan, Michael.|
|Mulcahy, Michael.||Nolan, M. J.|
|Ó Cuív, Éamon.||Ó Fearghaíl, Seán.|
|O’Brien, Darragh.||O’Connor, Charlie.|
|O’Dea, Willie.||O’Flynn, Noel.|
|O’Hanlon, Rory.||O’Keeffe, Batt.|
|O’Keeffe, Edward.||O’Rourke, Mary.|
|O’Sullivan, Christy.||Power, Peter.|
|Power, Seán.||Roche, Dick.|
|Ryan, Eamon.||Sargent, Trevor.|
|Scanlon, Eamon.||Smith, Brendan.|
|Treacy, Noel.||Wallace, Mary.|
|White, Mary Alexandra.||Woods, Michael.|
|Bannon, James.||Barrett, Seán.|
|Breen, Pat.||Broughan, Thomas P.|
|Bruton, Richard.||Burke, Ulick.|
|Burton, Joan.||Byrne, Catherine.|
|Carey, Joe.||Connaughton, Paul.|
|Crawford, Seymour.||Creed, Michael.|
|Creighton, Lucinda.||D’Arcy, Michael.|
|Deenihan, Jimmy.||Doyle, Andrew.|
|English, Damien.||Enright, Olwyn.|
|Feighan, Frank.||Flanagan, Charles.|
|Flanagan, Terence.||Hayes, Tom.|
|Hogan, Phil.||Howlin, Brendan.|
|Lynch, Ciarán.||Lynch, Kathleen.|
|McCormack, Pádraic.||McGinley, Dinny.|
|McHugh, Joe.||Naughten, Denis.|
|Neville, Dan.||Noonan, Michael.|
|Ó Caoláin, Caoimhghín.||Ó Snodaigh, Aengus.|
|O’Donnell, Kieran.||O’Dowd, Fergus.|
|O’Keeffe, Jim.||O’Mahony, John.|
|O’Shea, Brian.||O’Sullivan, Jan.|
|Perry, John.||Rabbitte, Pat.|
|Reilly, James.||Shatter, Alan.|
|Sheahan, Tom.||Sherlock, Seán.|
|Stagg, Emmet.||Stanton, David.|
|Timmins, Billy.||Tuffy, Joanna.|
|Upton, Mary.||Varadkar, Leo.|
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