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• 9 November 2010 Brief Overview of Report - Who Cares? An investigation into the right to nursing home care in Ireland

9 November 2010 Brief Overview of Report - Who Cares? An investigation into the right to nursing home care in Ireland

  09/11/10 Who Cares? - Overview (Downloadable version) (pdf, 231 kb)

This is a lengthy and sometimes complex report. This overview is intended to identify, chapter by chapter, the key points of the report. A fuller executive summary is available on the Ombudsman website.

Chapter 1 - Report is about ...

Based on more than 1,000 complaints received since 1985, the report deals with the problems and frustrations experienced by many when a family member is found to need nursing home care. For decades the health boards (HSE) have been failing to meet their obligation to provide this care. Arising from this failure, several hundred legal actions against the HSE have been initiated. The report looks at the rights of older people and the obligations of the health boards (HSE) in this area. The report deals also with the role of the Department of Health and Children which has been promising for many years to develop a new legislative framework for health service entitlement. The Ombudsman takes no position on what the law should be in relation to nursing home entitlement.

Chapter 2 - Jurisdiction ...

The Department and the HSE have both refused to co-operate with the Ombudsman in the conduct of the investigation leading to this report. They have failed to provide information sought by the Ombudsman. They claim that it is not within the jurisdiction of the Ombudsman to conduct this investigation. The Ombudsman is satisfied as to her jurisdiction. In making this report to the Dáil and Seanad, she expresses her view that the HSE and the Department are in breach of the statutory requirements of the Ombudsman Act 1980. The position of the Department in particular is supported by the Government which, on 10 September 2010, informed the Ombudsman of this. The Government is saying that the Ombudsman is acting outside her powers and that her actions constitute an interference in the State’s defence of several hundred legal actions. While the Ombudsman says that this approach has not compromised her statutory independence, she draws attention to this unprecedented intervention by Government.

Chapter 3 - Background ...

There are 23,000 older people (5% of the over 65 age group) in nursing homes. Of these, 7,500 are in HSE homes and 15,500 are in private nursing homes. In recent decades, there has been a marked decline in the number of public nursing home places and a corresponding increase in private places.  Between 1997 and 2009 the number of private nursing home places has increased by almost 300% (now standing at 20,526 places). The relative lack of public places has meant that, in recent decades, very many older people have had to go into private nursing homes. While some of these people received some subsidy towards the costs of private care, these subsidy arrangements have been very inadequate. As a consequence people who, in principle, had an entitlement to be provided for by the health boards have had to pay significant amounts for private care. Meeting these costs has resulted in hardship for many.

Chapter 4 - What Complainants Say ...

An objective of this report is to represent what the Ombudsman’s complainants - going back to 1985 - have been saying on the nursing home issue. The Department says the Ombudsman has no business seeking to represent what complainants say. In a detailed piece in his 1992 Annual Report to the Dáil and Seanad, the Ombudsman described the complaints in this area and identified the key issues giving rise to the complaints. In fact in every year since then complaints of the same kind, raising the same issues, have been made to the Ombudsman. This chapter contains material illustrating nursing home complaints made to the Ombudsman spanning the entire period since 1985.

Chapter 5 - The Law Provides ...

The key piece of law of relevance is the Health Act 1970. It provides in plain and unambiguous terms that a health board (now the HSE) shall make in-patient services available. It is long established, since 1976, that the type of service provided in a nursing home for an older person constitutes in-patient services. In recent years the Department has argued that the 1970 Act does not confer a right to in-patient services; rather, it argues, while people may be "eligible" for this service they are not "entitled" to it. Based on a lengthy analysis of the relevant law, the Ombudsman concludes that this distinction has no validity and that people are entitled to be provided with in-patient (including nursing home) services. The Ombudsman believes that, in taking the approach it does, the Department and the HSE are showing an unacceptable disregard for the law as it currently stands.

Chapter 6 - Broken Promises ...

People, especially older and more vulnerable people, should not be in any doubt as to what services they can expect from the State. While the Health Act 1970 requires the health boards (HSE) to provide nursing home care to those who need it, this obligation is honoured more in the breach than in the observance. As a consequence, there is huge confusion and uncertainty regarding the right to nursing home care. Neither, since 1970, has the law been amended to reflect actual practice on the part of the health boards (HSE). This chapter sets out the story of one older person, referred to as Mrs. B., who has been in a private nursing home since 1999, having failed to be provided for by her health board. In the 11 years since then Mrs. B. has had to meet very high private nursing home costs; for much of the period she received no subsidy towards these costs and her family has had to contribute. Despite having a medical card, and despite being assessed by a geriatrician as needing health board care, her health board has never accepted responsibility for her costs. A detailed account of the dealings between Mrs. B. (whose family act on her behalf) and the health board (HSE) is given in this chapter. The story of Mrs. B. since 1999 is juxtaposed with details of promises to bring in new legislation in this area which have been made by the Minister and the Department of Health and Children, year by year, for more than a decade.

Chapter 7 - Nursing Homes Support Scheme Act - "...making sure what has been in doubt..."?

The Nursing Homes Support Scheme (NHSS) Act 2009 provides the legal basis for the scheme of subsidies for nursing home costs promoted by the Department under the title "Fair Deal". This chapter includes a detailed analysis of the NHSS Act as well as an account of the Department’s own views on the Act.  Again, the Ombudsman expresses no view on what policy and legislation should be in this area. The key point made by the Department is that, consequent on the Act, responsibility for providing nursing home care for any person is a matter for that person (and the family); the HSE has no obligation to provide nursing home care. According to the Department, the role of the State is confined to paying a subsidy towards nursing home costs following a means assessment and subject to the availability of HSE resources. The Ombudsman’s analysis does not accept that this is the case and prefers the view that the obligations of the Health Act 1970, in relation to nursing home care, continue to have effect. This chapter draws attention also to problems emerging under the NHSS particularly in terms of the range of care services covered by the Scheme and in terms of how the means assessment is conducted. The Ombudsman remarks also that the NHSS Act itself is drafted in a manner which renders it impenetrable and that it fails to meet the requirements of the "Plain Language" test.

Chapter 8 - Litigation "... legal uncertainty is tested and exploited..."?

There are more than 300 sets of legal proceedings outstanding against the State arising from the failure of the health boards (HSE) to provide nursing home care for the plaintiffs involved. Many of these actions have been in place for several years and none has yet come to hearing and judgment in the High Court. At least a dozen of these actions have been settled with the State paying some level of compensation. Details of the settlements have not been disclosed; in fact, both bodies have refused to give any information on the actions to the Ombudsman. The Ombudsman notes the contradiction that while the Department and HSE say these plaintiffs have no legal case, settlements have nevertheless been made in some cases. It is unclear why the State should expend public money in settlement of claims which have no legal merit. The failure of the Department to give any information (either to the Oireachtas or to the Ombudsman) on the settlements, or on its approach to these legal actions, suggests a serious lack of transparency. This chapter also considers issues to do with how the State should behave in litigation involving vulnerable groups of its own citizens. It also reflects on the potential of the role of "guardian of the public interest" which is part of the brief of the Attorney General.

Chapter 9 - Conclusions and Reflections ...

The Ombudsman concludes that the State, through its agencies the health boards (HSE) and the Department, has failed over many years to provide people with their legal entitlement to nursing home care. This failure inevitably has caused confusion, suffering and hardship. The fact that the State has failed to tackle the issues underlying this failure, despite repeated promises to do so, suggests wider failures in our system of government. The HSE and the Department, with the support of the Government, have opposed this Ombudsman investigation and have made very serious charges against the Ombudsman’s Office.  In effect, the charge is that the Ombudsman has acted in bad faith in the conduct of this investigation. The Ombudsman rejects these charges totally. The Ombudsman looks at issues - first raised by her predecessor in 2001 in a related investigation report - to do with how we govern ourselves; she concludes that the problems identified in 2001 have in fact become more deep seated in the intervening decade. The Ombudsman concludes her investigation with a finding that the health boards (HSE) failed to fulfil their obligations to older people under the Health Act 1970 and that this failure came about with the full knowledge and agreement of the Department.  Unusually, the Ombudsman has chosen not to make a specific recommendation arising from this finding. This is in the light of the unprecedented financial and economic difficulties which face the country. It has regard also to the enormous costs associated with any recommendation designed to provide redress for those who have been failed by the State in relation to nursing home care. However, the Ombudsman makes a number of proposals including that the State acknowledge its failures in the area and that some thought be given to providing some level of assistance to those who have suffered significant financial hardship.  This might be done, for example, through the existing mechanisms available under the Supplementary Welfare Allowance scheme.