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• 9 November 2010 Who Cares? An Investigation into the Right to Nursing Home Care in Ireland

9 November 2010 Who Cares? An Investigation into the Right to Nursing Home Care in Ireland

9.3 Conclusions and reflections - Findings and proposals

Arising from this investigation, the Ombudsman proposes actions on two fronts: (a) in the specific context of those whose right to long-stay care has not been met and who have incurred costs as a result, and (b) action to make it less likely in future that issues regarding the rights of defined groups will remain unresolved for long periods.

Specific Issue

In the normal course, an Ombudsman investigation includes findings or conclusions and (where relevant) recommendations to the public body concerned that redress be provided to the parties adversely affected. In the present case the Ombudsman finds, in relation to the type of complaints dealt with in this investigation, that the health boards (HSE) failed to fulfil their obligations to older people under section 52 of the Health Act 1970 and that this failure came about with the full knowledge and agreement of the Department. As a result of these failures, very many older people (and their families) suffered significant adverse affect over several decades. The Ombudsman finds that these failures of the health boards (HSE) and of the Department constitute (to use the language of the Ombudsman Act) actions "based on an undesirable administrative practice" and also actions "contrary to fair or sound administration".

These findings are at a level of generality as this investigation is an "own initiative" one rather than one linked to specific, named complainants.

The Ombudsman takes the view that the HSE and the Department should acknowledge formally that the State, in the case of older people needing long-term nursing home care, has not been meeting its obligations under section 52 of the Health Act 1970. This acknowledgment could be in the form of a public statement from the two bodies and could be made on a "without prejudice" basis.

There is no satisfactory solution to the issue of whether there should be financial redress for those who have been adversely affected by the State's failure to provide long-stay care. The financial consequences for the State, in meeting a recommendation to compensate all those adversely affected, would be enormous, potentially running to several billion euro. In present circumstances, it appears this is not a cost which the State can meet. Nor is it likely that the State will be in a position to meet this type of charge for many years to come. On the other hand, not to recommend financial redress, might be seen as condoning maladministration and allowing bad practice to go unchecked. It would also mean that individual people and their families are being left with nowhere to turn and with a financial burden to bear which, as the Ombudsman understands the law, should have been borne by the State.

With considerable reluctance, the Ombudsman takes the view that in present circumstances the public interest is best served in not recommending any specific redress in the sense of financial compensation for those affected adversely. At the same time, where financial redress is not being recommended, it is even more important that the State recognises and acknowledges its failures in not providing long-stay care to all of those who needed such care.

The Ombudsman suggests that some thought be given within the Department to devising some limited scheme under which families which have suffered serious financial hardship might be assisted. In making this suggestion, the Ombudsman appreciates that any such scheme would be fraught with difficulties and might well require legislative underpinning. One possibility in this regard is that the existing Supplementary Welfare Allowance scheme might provide the statutory mechanism for the making of one-off payments, based on exceptional need, for such people affected adversely by the State's failure to provide nursing home care for a family member. In any event, the Ombudsman recognises that such a scheme, providing limited redress, could not displace the existing right of an affected person to take legal action to seek compensation. However, the Ombudsman believes that the vast majority of affected persons would welcome a solution which avoids the necessity to go to court.

Wider Issue

The more general proposal is intended to prevent situations, such as described in this report, coming about in the future; or, where they do come about, the intention is that they would be dealt with at the earliest possible stage. A key element in this proposal is that, in future, measures to deal with such instances should be conducted with full transparency and in the public domain. The Ombudsman proposes the creation of an independent group whose function would be to advise Government on how best to handle legal actions, or threatened legal actions, which involve numbers of people and which arise from a contended failure of a State agency to meet statutory obligations particularly in instances where those claimed to be affected belong to a vulnerable group in society. Past examples of situations where such an approach might have been helpful include: the army deafness claims, the contaminated blood claims, education rights of autistic children, provision of secure care for children and the right of older people to long-stay nursing home care.

This proposal is based on the premise that the State should react to such situations, not simply in legalistic terms, but in terms which have regard both to legal rights (including human rights), to the State's finances and the overall public interest. The proposal envisages that, while ultimate legal responsibility for dealing with such claims will continue to rest with the State (and its relevant agency), the direction of the State's response should have regard to the advice of this group. Amongst the options for this group would be that of stating a case to the High Court, perhaps at an early stage, in order to get legal clarity where that is needed. The overall thrust of this proposal is that the State's response to situations of this kind should be speedy, be made at an early stage, and be based on considerations of fairness and the public good rather than, as tends to happen at present, being defensive, combative and legalistic.

Some thought might be given to the possibility of such a group acting as adviser to the Attorney General in fulfilling the role of guardian of the public interest or, alternatively, that this group would replace the Attorney General in fulfilling that role. In any case, there is certainly considerable scope for improving our governmental mechanisms with a view to ensuring that, where these major issues arise, they will be handled always with a view to securing the public interest.

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