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Presentation to the Joint Committee on Health and Children, 21 June 2001

Nursing Home Subventions, An Investigation by the Ombudsman regarding payment of Nursing Home Subventions by Health Boards

The report arose from an investigation which I conducted in accordance with Section 4(2) of the Ombudsman Act, 1980. It describes my investigation into the payment by health boards of subsidies or subventions to patients in private nursing homes as provided for in the Health (Nursing Homes) Act, 1990 (the 1990 Act). My Office was receiving a significant number of complaints about this issue since the subvention scheme was introduced in 1993. Some years ago I introduced the practice of initiating systemic investigations where there was clearly evidence that complaints arose from systemic causes rather than for "once off" reasons and where I was failing to get the general issues addressed by examining individual complaints. Earlier examples of this approach were the Reports on Lost Pension Arrears, on the School Transport System for Children with Special Needs and on Local Authority Housing Loans. The Nursing Homes Subventions report focused on two aspects of the subvention system. First, the assessment of family circumstances whereby the health boards were effectively ( but wrongly ) including the income of the applicants' children in the calculation of subvention entitlement. Second, the application of the subvention system in a manner which negatived the clear intention that nursing home patients should retain a minimum amount of their own income as pocket money.

I found that maladministration had occurred on a significant scale. Using the terms which define maladministration in the Ombudsman Act, I found actions or inactions of the Department of Health and Children and the health boards were "taken without proper authority", were "improperly discriminatory" and were generally "contrary to fair or sound administration"

As a result of the investigation, fundamental changes, which mirror the concerns expressed by me in the Report, have been made to the content of the Regulations. In December 1997 the Department allocated a sum of �4m for the purpose, among others , of paying subvention arrears to claimants affected by the failure to correctly apply the " pocket money " provisions in the regulations. I understand that, to date, these payments have not been finalised and, where they are still outstanding, the boards involved - the Eastern and North Eastern Health Boards implemented the provisions correctly - have been instructed to make them as a matter of urgency. Family assessment has been removed and the health boards were provided with additional funding of �2.1m in 1999, to cover the cost of the removal on a current basis. The Department, immediately prior to the publication of my report, received approval from the Department of Finance for the payment of arrears in those cases where family assessment operated. The Department's rough calculation is that such payments would cost up to �6m (since the introduction of the subvention scheme approximately 35,000 applications for subvention had been received). A group representing the Department, the health boards and the Eastern Regional Health Authority was established to ensure that this process was effected on a uniform basis as speedily as possible. As I understand it, no arrears have been paid to date but I am advised that some boards expect to be in a position to commence payments in the next few weeks. It may well be that the total cost of paying these arrears will exceed �6m. The North Eastern Health Board, which is one of the smaller health boards, has I understand calculated its arrears liability as slightly more than �1m. This suggests that the �6m estimate for all of the health boards may prove to be too low.

Because of the complexity of the underlying causes of the maladministration which I found, the report could be said to be a case study in public administration. Apart from the subvention scheme itself it deals with the role of the Department in making regulations (as provided for in the 1990 Act) and in overseeing the introduction and operation of the scheme nationally. The report also considers the nature of the relationship between the Department and the Oireachtas, on the one hand, and that between the Department and the health boards, on the other.

It provides in my view a useful analysis from which lessons need to be learned of how a particular and a desirable social policy initiative, was conceived, provided for in legislation, funded and implemented. Serious issues in regard to the relationship, on the one hand, between the Oireachtas and the Executive and, on the other, the relationships within the Executive between the political and administrative levels were identified. These issues include the effective vetting of secondary legislation, the relationship between Ministers and senior civil servants, the funding of entitlements and human rights issues in relation to the elderly. In my report I made some suggestions - and I would stress that these are only suggestions - about how these more fundamental issues might be progressed. I was conscious of the fact that a serious debate has developed about changes in our Constitution, the role of the Houses of the Oireachtas and

the need for greater accountability on the part of the Executive and I felt my Office should try to contribute to these wider issues in what I hope is a pragmatic and not an academic way.

In my report I consciously put the emphasis on the general steps which need to be taken to prevent a recurrence of the kind of problems which arose in this case rather than (with the benefit of hindsight) trying to apportion blame. I am aware that many staff, particularly in the Department of Health and Children, feel my report was unfair to those of them who, so to speak, "rolled up their sleeves" and did their best to keep a scheme going even though it was fundamentally flawed. They would say that they acted at all times in good faith and in very difficult circumstances. I can understand the dilemmas they faced. But I cannot, as Ombudsman, condone actions which breached the law. There were failures by many parts of the system within which government is carried out in Ireland. There was a failure of the Houses of the Oireachtas in supervising the making of the regulations, and in ensuring the accountability of successive Ministers. There was a breakdown in the accountability relationship between Ministers and senior civil servants and , at the very least, a distinct lack of transparency in that relationship. And there was an absence of any awareness on the part of the Department of Finance, the Department of Health and Children and the Health Boards, that people's entitlements and human rights cannot arbitrarily be put to one side in the interest of saving money or keeping within pre-determined expenditure limits. As someone who is genuinely concerned about the effectiveness of the Houses of the Oireachtas in their very important role of holding the Executive accountable in the area of people's entitlements, may I express the view that I detect that failure to exert themselves in this regard is creating a vacuum that is being increasingly filled by the Courts and the Judiciary. And I don't think that is a good thing constitutionally. If the Executive cannot fulfil the obligations which the Oireachtas puts on it by way of legislation, then the Executive should seek a solution involving the Houses.

There were undoubtedly mitigating circumstances in this case. As a result of the cut backs of the 1980s and the rationalisation of the hospital system, the Department could no longer deliver on the entitlements provided for in earlier legislation. In addition, the Department and, in turn, the health boards faced serious funding constraints. The question remains as to whether or not these difficulties could have been faced up to in ways which would not have involved maladministration.

My report made a series of recommendations which addressed the underlying issues in the investigation. New arrangements for the vetting of secondary legislation and the funding of entitlements were proposed, and the human rights of the elderly were also addressed. Since I started to prepare my report, Ireland has, of course, ratified the (revised) European Social Charter, Article 23 of which deals specifically with the right of elderly persons to social protection.

In that context I welcome the indication by the Minister for Health and Children that it is his intention to bring proposals to Government in relation to whatever measures may be necessary arising from my report.

Outstanding Issue

Let me conclude by referring to one major outstanding issue. This relates to legal entitlement under the Health Acts and is still the subject of continuing complaint to me. So far this year, complaints about health matters have increased by over 100%. These complaints in the main relate to the question of whether people with medical cards are entitled to the provision of free long stay care.

The legal position in relation to hospital in-patient services is relatively straightforward. Everybody resident in the State has an entitlement to be provided with in-patient services, where necessary, by the relevant health board. The service may be provided directly by the health board in one of its own hospitals, or in another publicly funded hospital (e.g. the so-called "voluntary" hospitals), or by way of a contracting out arrangement between the health board and a private institution. Such latter arrangements are provided for at Section 26 of the Health Act, 1970 and are required to be in accordance with such conditions as the Minister for Health & Children may specify. Where the patient is covered by a medical card then the service is free of charge.

The definition of "in-patient services" as provided at Section 51 of the Health Act, 1970, means institutional services provided for people while maintained in a hospital, convalescent home or home for persons suffering from mental or physical disability or in accommodation ancillary thereto. As well as covering acute hospital stays, the term self-evidently includes wider categories of service such as the long-stay care of elderly or disabled people. Support for this conclusion may be found in a Supreme Court judgement in a case in which the Eastern Health Board had argued, unsuccessfully, that the services provided to an elderly, long stay patient at St. Brigid's Home, Crooksling did not amount to in-patient services. I consider that any elderly person who needs long-stay nursing home type care - which typically includes nursing care, supervision, assistance with daily activities such as feeding and dressing and which may also include services such as physiotherapy or occupational therapy - is entitled to have this service provided by the relevant health board as an aspect of in-patient services.

The Department of Health and Children disputes the view that the Health Acts confer a legally enforceable entitlement to hospital in-patient services. It is the view of the Department that the law is unclear as to whether people have a statutory right to be provided with nursing home type care by a health board. The Department argues that the Health Act, 1970 distinguishes between the terms "eligibility" and "entitlement" and that the former, in the context of the Health Act, provides for eligible people to avail of services. However, as the Health Act does not define the manner in which, or the extent to which, in-patient services should be provided, the Department argues that the extent of any health board's legal obligation in this regard is unclear. I do not accept that there is any doubt as to the obligation on health boards to provide in-patient services for eligible people. This is clearly established by Section 52(1) of the Health Act, 1970 which reads

" (2) A health board shall make available in-patient services for persons with full eligibility and persons with limited eligibility"

Because of the interpretation adopted by the Department, the Health Boards are continuing to take the line that people with medical cards who cannot be accommodated in health board long stay care facilities and who therefore have no alternative but to go into private nursing homes must be dealt with under the subvention scheme. In other words their families must make up the difference between the subvention and the full cost. In the light of this fundamental difference in interpretation, and the continuing number of complaints which I am receiving, this is an issue that I may well have to return to in a supplementary report if the position remains as it is. I recognise fully that there are significant financial implications for the Exchequer particularly in the context of a "greying" population. But my role, as Ombudsman, is to uphold the rights of citizens and their legal entitlements and to report to the two Houses of the Oireachtas when I conclude that their rights are being infringed.

Conclusion

In once sense this dispute, as to whether elderly people are or are not entitled as of right to nursing home care, is no more than a symptom of a more deep-seated problem. The bigger problem, I believe, is that there should be any doubt at all as to the level of service elderly people can expect. It is a matter for the Oireachtas to decide, hopefully on the basis of informed and open debate, on the level of service older people can expect from the state. However, it is in nobody's interest - not that of the civil service, of the health boards, of Oireachtas members and cetainly not in the interests of the elderly - that there should be confusion on what older peoples' health entitlements are.

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