Nursing Homes Support Scheme Bill 2008 - 17th June 2009

Nursing Homes Support Scheme Bill 2008 - 17th June 2009
SECTION 3.
An Leas-Chathaoirleach: Amendments Nos. 1 and 2 in the names of Senators Mullen and Norris, respectively, are deemed to be out of order because of a potential charge on the Revenue.

Amendments Nos. 1 and 2 not moved.
Section 3 agreed to.
SECTION 4.
An Leas-Chathaoirleach: Amendment No. 3 in the names of Senators Fitzgerald and Norris is deemed to be out of order because of a potential charge on the Revenue.

Senator David Norris: These are cases in which the Leas-Chathaoirleach’s ruling is clear, but I appealed a previous decision to the Committee on Procedure and Privileges. Will the Leas-Chathaoirleach use his office to ensure that there is a meeting of the Committee on Procedure and Privileges soon to tease out this matter of the ruling out of amendments on economic grounds? Perhaps we can also look at the fact that it is idiotic that the Seanad is prohibited from making important amendments on this ground. I understand there is a constitutional prohibition but I want to raise that protest.

An Leas-Chathaoirleach: That is a matter for the Cathaoirleach, and Senator Norris has a representative on the committee to which he referred.

Senator David Norris: I wrote to him but he keeps telling me that no meetings take place of the Committee on Procedure and Privileges.

Amendment No. 3 not moved.
Section 4 agreed to.
SECTION 5.
Senator Frances Fitzgerald: I move amendment No. 4:

In page 12, between lines 12 and 13, to insert the following subsection:

“(6) The Minister shall provide a report to the Houses of the Oireachtas on the funds made available for the Nursing Home State Support Scheme.”.
This issue of how the elderly will get support if they need residential care is one of the critical issues we in society must face at present. As the House will be aware, it is very inequitable, it is arbitrary and the criteria are far from clear. This legislation is an attempt to move in a direction that provides some clarity and a mechanism to bring fairness into the equation.
The critical question is: what resources will be made available to allow this to happen and what resource capping will there be as we move towards implementing this important legislation? I am concerned that we would arrive at a situation where, for example, there would be a care assessment, it would be agreed by everybody that it was necessary that a residential placement should be provided but, because of resource shortages, it would not be available.
This is the position at present. If one takes the number of people who are in hospital beds whose care has effectively been assessed as in need of residential care and who are high dependency, there are large numbers of individuals living in hospitals around the country who should be in residential care.
The question of what resources will be made available to implement this legislation is critical and it is not an easy one. Obviously, we are in an extremely difficult financial situation. It is not an easy question for the Minister to respond to or to give guarantees on, but the point of this legislation is to make places available to those who need them and to provide a funding mechanism for families, who are unclear on the matter and who are finding it very difficult to manage. Many people are paying a great deal of money. Some of them are getting subvention while some are not and it is not clear why that is the case. It is a major concern for families and individuals.
My simple amendment states that the Minister shall on an ongoing basis - I expect on a yearly basis - provide a report to the Seanad and the Dáil on the funds made available for the nursing home State support scheme.
Section 5 of the Bill stipulates that the fair deal scheme is resource capped. Obviously, that will lead to waiting lists for support under the scheme and it is possible that family members will be called upon to fund the difference. At the same time in recent budgets the tax relief on nursing home care has been reduced to the standard rate.
This amendment brings some accountability to the Houses of the Oireachtas for the funds being made available to the scheme. It is an opportunity to look at how adequate is the provision being made by Government at any particular time for funding for the scheme. There are questions. If the scheme is to be resource capped, which I understand, there will inevitably be waiting lists, but how will the waiting lists be dealt with? Will family members continue to be expected to pay up while we wait for some funds to be freed up by places becoming available, perhaps through death?
Under the existing system, people received some contribution to the cost of their care, even if it had to be supplemented by the person’s family. Under the new scheme, is it possible that an older person could be left with nothing and no certainty about how funding might become available? We are in a situation where the need for high dependency beds is great. Many high dependency people are in unsuitable placements in hospitals, which is creating major problems within hospitals and for individuals and their families. I look forward to hearing what the Minister for State has to say about the resource issue because it is critical.
I do not know how much she can say on the matter today, given the financial situation, but at the least this amendment would ensure there is some ongoing monitoring of how the scheme is evolving and developing, what funds are being made available, what priority it is getting from Government, how many places are being made available on an ongoing basis, how many are being funded, what the waiting lists are and what the need is. It would bring some useful democratic accountability into the process. I ask the Minister of State to accept the amendment.

Senator David Norris: I support the thoughtful amendment tabled by Senator Fitzgerald because she used the correct word when she mentioned accountability. For the Houses of the Oireachtas to operate effectively it is important we have access to all the information on a factual basis.
Senator Fitzgerald expressed some hesitation and did not seem completely sure the amendment would be accepted and would not be ruled out of order because it could have been as I have no doubt it creates a charge on the Exchequer. It must do so because one would have to prepare, print, publish and issue a report. A number of amendments have been knocked out because they would cause a charge on the Exchequer. This amendment plainly does but for some reason, perhaps because it is an interesting subject to discuss, it has been accepted.
I mention this because the amendments that have been ruled out of order were important, for example, the one on couples. I would have welcomed the opportunity to again say to the Minister of State, Deputy Brady, that I welcome the interesting development of accepting same sex couples and so on. It would have been useful for me because in this House I have been accused of being sectarian and not accepting the views of the Roman Catholic Church. It has made a strong case for the acceptance of people outside marital relationships of various kinds, such as siblings who are living together. This kind of thing exists all over the country, where elderly people, such as two brothers or sisters, are living on an old farm up on the hill in Kerry, Leitrim or wherever. I have no difficulty whatsoever in saying such people should be covered, but I would protect and ring-fence the radical change here, which is the redefinition of “couple” to include same sex couples. I did not have the opportunity to say that because of the prohibition on this amendment.
I again highlight the fact that sometimes these decisions are absurdly exclusionary or inclusionary, but I welcome the inclusion of this amendment although I have no doubt there is a charge, small though it may be. Technically, this amendment could have been ruled out of order. I am very glad it was not and I compliment Senator Fitzgerald.

An Leas-Chathaoirleach: It has been judged by the Cathaoirleach that this report could be carried out from existing resources.

Senator David Norris: It still creates a charge.

Minister of State at the Department of the Health and Children (Deputy Áine Brady): I understand Senators are concerned that there should be transparency regarding the level of funding committed to the scheme in each financial year. A dedicated subhead has been established within the overall HSE Vote for the purposes of the scheme. Subhead B16 would then be part of Vote 40. As such, the funding made available for the scheme will always be ring-fenced and will be clearly identifiable within the Revised Estimates of public expenditure. The funding within the subhead will be subject to careful monitoring and the Department of Health and Children has already agreed a set of reporting requirements in this regard.
Furthermore, under section 31 of the Health Act 2004, the HSE has to prepare and submit a service plan. The Minister has stipulated that the service plan must report on the numbers of people provided with support under the scheme and the current plan already reflects this within its performance activity targets for services for older people. In addition, the HSE will also have to include in its annual report any information that may be specified by the Minister for Health and Children.
I do not propose to accept amendment No. 4 due to the range of reporting and monitoring mechanisms already in place and I hope the measures I have outlined will address the concerns of the Senators.

Senator Frances Fitzgerald: I thank the Minister of State, but her response does not reassure me and I will tell her why. In the past year mental health funding was supposed to be ring-fenced but it has disappeared into a black hole and has not been used for mental health. There is a number of other examples. The idea that there is a subhead where this money should be spent is not enough. The fact that it is in the service plan that would come from the HSE is not enough.
It is one thing to introduce this Bill to the House, but it is quite another to ensure the spirit of the Bill is maintained and it is put effectively into practice. If we are to bring back democratic accountability to this House, we ought to have reports before the House outlining how the scheme is being run, what the effects of the legislation are, how much money is being spent on it and what the balance is between the demand for the service and what is actually being delivered.
The people we are discussing are the most vulnerable in society, namely, the elderly who are high dependency and need these places. A report ought to be provided to the Oireachtas on a yearly basis. I am not happy to leave it with the HSE, given the critiques there have been of it in recent times and the lack of ring-fencing of money - I gave the area of mental health as an example. This amendment would mean bringing actual detail on what was happening regarding the Bill to the floors of the Dáil, Seanad and committees. It is about time we started doing more of that in this House and stopped hiving off responsibility to unaccountable bodies or bodies which are not directly accountable to Members of this House.

Senator David Norris: I would like to register my delight at the Leas-Chathaoirleach’s wonderfully Jesuitical justification. I shall remember it because it applies to every single amendment that has been excluded previously. In other words, as long as it comes within the global budget, no matter what it dislodges, it is not a charge on the Exchequer. I am extremely grateful for his instruction. I shall improve and I shall certainly use this justification when I am arguing for the retention of these kinds of amendments in the future.

Deputy Áine Brady: In response to Senator Fitzgerald, mental health funding was not put into a single dedicated subhead and because the fair deal funding is within a single dedicated subhead it cannot be moved elsewhere without notification to the Oireachtas. The HSE makes monthly returns to the Department regarding expenditure on each subhead, including B16, and this will be carefully monitored. Allocation of resources to this and all other health expenditure is a matter for Government and is kept constantly under review.

An Leas-Chathaoirleach: Is amendment No. 4 being pressed?

Senator Frances Fitzgerald: Yes.

Amendment put.
The Seanad divided: Tá, 16; Níl, 22.
Tá
Bacik, Ivana.
Bradford, Paul.
Burke, Paddy.
Buttimer, Jerry.
Coffey, Paudie.
Cummins, Maurice.
Donohoe, Paschal.
Fitzgerald, Frances.
Hannigan, Dominic.
McCarthy, Michael.
McFadden, Nicky.
Mullen, Rónán.
Norris, David.
O’Reilly, Joe.
Ryan, Brendan.
White, Alex.
Níl
Brady, Martin.
Butler, Larry.
Carty, John.
Cassidy, Donie.
Corrigan, Maria.
Daly, Mark.
Feeney, Geraldine.
Hanafin, John.
Keaveney, Cecilia.
Leyden, Terry.
MacSharry, Marc.
Ó Domhnaill, Brian.
Ó Murchú, Labhrás.
O’Brien, Francis.
O’Donovan, Denis.
O’Malley, Fiona.
O’Sullivan, Ned.
Ormonde, Ann.
Phelan, Kieran.
Walsh, Jim.
White, Mary M.
Wilson, Diarmuid.
Tellers: Tá, Senators Jerry Buttimer and Maurice Cummins; Níl, Senators Labhrás Ó Murchú and Diarmuid Wilson.
Amendment declared lost.

Section 5 agreed to.
Senator Donie Cassidy: I propose that the House suspends until 2.45 p.m.

An Cathaoirleach: Is that agreed? Agreed.

Sitting suspended at 1.40 p.m. and resumed at 2.45 p.m.
Section 6 agreed to.
SECTION 7.
Senator Frances Fitzgerald: I move amendment No. 5:

In page 13, subsection (4), line 2, after “possible,” to insert “not to exceed a period of six weeks”.
This amendment is about the assessment. The Bill accepts there should be a care assessment. Section 7(4) states: “Upon receipt of an application for a care needs assessment, the Executive shall, as soon as reasonably possible ....”. Instead of as soon as is reasonably possible we propose the assessment should be done within six weeks. That is to ensure it is done when it is needed and that there is a timeframe for it. We propose giving six weeks to have this assessment done because if a timeframe is not put on it, the process could go on and on. It is also difficult for hospitals because they do not know when the care needs assessment will be done. A patient’s acute phase of care might be over, the assessment would still not be done and the patient would be waiting to get it done. There is a priority about making the assessment for high dependency patients in terms of getting suitable placement. The way to do that is to have a care needs assessment, as outlined in the Bill, but we suggest it should be done within six weeks.
I would be interested to hear what the Minister of State has to say in terms of whether that is feasible. What does she expect will happen under the Bill? What sort of timeframe are the Health Service Executive and the Department working within currently in terms of the care needs assessment? Does the Minister of State intend to put anything into regulations as to when it should be carried out? The Minister of State might inform the House on the way she intends dealing with this issue because rather than leaving it open-ended, there might be the possibility of it being done reasonably quickly. Six weeks is a fairly short time but we are talking about high dependency patients.

Senator David Norris: I support Senator Fitzgerald’s amendment because sometimes it can be critical to have these assessments done quickly. As she said, many of these patients are highly dependent. There may be an urgency about it. Speaking professionally as a member of the NUJ, I worked as a journalist for a mass circulation newspaper for three and a half years and I found the fact that I had a deadline of lunchtime on Thursday focused the mind wonderfully. I am what Sean O’Casey would have called a prognosticator and a prevaricator and I believe things can be very easily put off to the next day or whenever. This kind of thing concentrates the mind. I strongly support the principle but I am not sure about the six weeks timeframe. While I do not mean I withdraw my support because of this, I am not sure how appropriate that timeframe is. It may be that a shorter or longer term might be necessary in some circumstances. I would be interested to hear the Minister of State’s views on this but the idea of a target date and a time limit is good in ensuring efficiency.

Senator Ivor Callely: I understand from where Senator Fitzgerald is coming in regard to the time period to which Senator Norris referred. In the whole area of care assessment needs, to which several sections of the Bill refer, the real issue I have come across is the consultation process in regard to the assessment and the discussion with the individual and the family. There is currently a bit of passing of the ball from the social worker to the medical person to the GP, and from one set of suggestions to another, before people begin considering long-stay options.

Other areas of the Bill will also deal with this issue. I am not sure we can insert an assessment period because if a person is in assessment, the authorities may need to continue the assessment over a period of weeks as the person progresses either to a better or worse state of well-being, and assessment in such a situation might not work. There is room for improvement, however, and I am interested to hear what the Minister of State has to say. The one change I would like to see is more involvement on a case conference basis which involves the family with all the other participants in the care assessment to ensure there is full and clear understanding by and co-operation between those associated with the person under assessment and those who should be involved in assessing that individual.

Senator Rónán Mullen: I support Senator Fitzgerald’s amendment. It is very easy to include in legislation phrases such as “as soon as is reasonably possible” when what we want to promote in all aspects of care, in particular care of older persons in our society, is a culture of excellence, dispatch and thoroughness. I support the amendment on that basis. There should be minimal delay in this regard. Only if we set out clearly in legislation what we require will we get to the stage where matters are handled with appropriate dispatch given the importance of the decisions involved.

Deputy Áine Brady: The amendment proposes to impose a timeframe for the commencement of care needs assessments. I appreciate the policy intention of this amendment. It is envisaged that care needs assessments would be undertaken quickly. However, it is considered imperative that the legislation should be flexible on this point. This is particularly pertinent having regard to the fact that the legislation will establish a scheme that will have to accommodate the needs of a rapidly growing demographic.
In drafting the Bill, careful consideration was given to the Disability Act 2005 which provides that assessments must be commenced within three months of the date of application. Assessments of need require a considerable level of resources, particularly dedicated input by health care professionals. As such, the stipulation of a timeframe for commencing assessments within the Disability Act has necessitated that a phased approach be taken to the roll-out of needs assessments. However, even with a phased approach, the HSE service plan 2009 reports that only 79% of assessments commenced within the timeframe.
In summary, given, first, the variable length and potentially time and resource consuming nature of the assessment, second, the rapidly growing demographic to which it relates and, third, the experience gleaned from the roll-out of assessments under the Disability Act, it would be unwise to immediately implement a statutory timeframe in respect of care needs assessment. For these reasons, I cannot accept the amendment. I will, however, offer the Senators a commitment that the issue will be addressed by way of published guidelines, approved by the Minister for Health and Children. Furthermore, the issue will be tabled for consideration in the review of the scheme which will take place three years after its introduction.

Senator Frances Fitzgerald: I welcome the fact that the Minister intends to publish guidelines, which will be helpful. I take it they will be published shortly.

Deputy Áine Brady: Yes.

Senator Frances Fitzgerald: That will be helpful. I ask the Minister of State to bear in mind the difficulties that will arise if those guidelines are not rigorous and detailed in regard to when this assessment should be done, again bearing in mind the high dependency people we are in general talking about.
The Minister of State used the statistic of 79%. Almost 80% is not a bad statistic with regard to the completion of assessments in this roll-out in regard to disability. In a way, that is nearly an argument for accepting this amendment, given that the Department was almost in a position to move to an 80% review. While we of course all want 100%, in terms of the roll-out of any new assessment of needs, close to 80% is certainly moving in the right direction. We have achieved lower target figures in other areas previously.
I ask the Minister of State to seriously consider including in the published guidelines as much detail as possible in regard to the expectation concerning when the care assessment should be done. It could be the case that a person is left in a situation where there are not enough resources to carry out the assessment, although that person is still in a totally unsuitable placement and nobody knows when the necessary resources will be available.
I will withdraw the amendment. Perhaps the Minister of State will come back on Report Stage to give us more detail on the guidelines it is intended to publish and to inform the House in more detail of how she sees those guidelines developing, which would be helpful.

Deputy Áine Brady: I appreciate the Senator’s point in regard to the 79% figure but this means the law is being broken in regard to over 20% of cases. It has taken us five years to reach 79%. I will get further information on the guidelines for the Senator.

Amendment, by leave, withdrawn.
An Cathaoirleach: Amendments Nos. 6 to 14, inclusive, are related and may be discussed together. Within this grouping, some amendments are alternatives to others.

Senator David Norris: I move amendment No. 6:

In page 13, subsection (5), lines 5 to 7, to delete all words from and including “shall” in line 5 down to and including “Executive)” in line 7 and substitute the following:

“shall be carried out by a multidisciplinary team (who may be employees of the Executive)”.
This deals with the multidisciplinary aspect of the assessment group, and assessment is at the core of this section of the Bill. The amendment refers to section 7(5) which states: ”The assessment referred to in subsection (4) shall be carried out by [the following is a description of the composition of the team] a person or persons (who may be an employee or employees of the Executive) who, in the opinion of the Executive, are suitably qualified to make that assessment and prepare a report in relation to the assessment.” This is general and vague in that “a person or persons ... may be ... suitably qualified”. In this area, we have a particular tradition and particular advice from within the professional bodies, which is also endorsed by the HSE. I want to replace that very loose definition with the simple phrase “shall be carried out by a multidisciplinary team (who may be employees of the Executive)”. This is the first and most important amendment. 3 o’clock
The second important amendment is No. 13, which seeks to tighten up subsection (7), which currently states: “A care needs assessment may include an examination of the person concerned by, as appropriate, a registered medical practitioner, a registered nurse, an occupational therapist or a chartered physiotherapist, or any combination thereof.” However, that combination is an internal reference. It does not expand or allow for expansion but it constrains by numbering off these elements. It allows for a combination of this entire group, but it does not make reference to any other groups such as therapists, social workers and so on. In assessing family and community support one really needs the input of professionals, adequately and properly trained, to review and assess social variables. A document has been produced by the Nursing and Midwifery Council this very year entitled Guidance for the Care of Older People and I wish to quote a sentence from it. It states, “You need to recognise your limitations in the scope of your practice and refer to a colleague, for example older people’s nurse specialists, psychiatric and palliative care nurses or other members of the multidisciplinary team, to ensure that the most appropriate care is provided”. I accept that section 7(5) states the assessment should be carried out by persons suitably qualified to make the assessment and that section 7(6) goes much further in explicitly setting out professions whose service will be guaranteed in care needs assessment, but social workers are not included, which is a concern.
I refer the Minister of State to the HSE’s 2009 code of practice for integrated discharge planning, which argued strongly for patient assessment that is thorough, that covers pathological, physiological, psychological, social and cultural needs with a multidisciplinary and multiagency approach. It is useful to put on the record the professional definition of a multidisciplinary approach as understood generally within the service. Multidisciplinary teams are groups of professionals from different disciplines who work together to provide comprehensive patient assessment and treatment. The team usually consists of medical staff, a consultant registrar, a nursing team, a discharge co-ordinator, community services, a discharge liaison officer, a dietitian, physiotherapists, occupational therapists, speech and language therapists, pharmacists, social workers, a public health liaison nurse, a chaplain and a spiritual adviser. This definition is from the HSE itself and yet a constriction or narrowing is applied. Either it should have been left vaguer to allow for these additional inputs, which are very valuable, or it should have been specified in the way I suggested. One reason is the type of vulnerable patients involved very often have a complex background and medical situation. It may well be necessary to draw on the resources and professional capacity of people who have a specialised interest or capacity in this area.
I have been briefed by Age Action Ireland and I refer to its position. It believes assessments ought to be made by a multidisciplinary team because of the proven benefits in making appropriate and timely referrals. It quotes several academic papers published in this area including O’Dell, 2006; Wilson, 1998; BMA, British Medical Association, 2000; and Paul et al, 2000. Multidisciplinary teams are advantageous in reducing the likelihood of mistakes and also subjectivity. In other words, there is a group or variety of specialists all of whom bring expertise to bear. Otherwise things may be missed, especially if people are suffering from strokes. There may be an apparent incapacity but someone with a particular skill may unlock a capacity on the part of that person. Multidisciplinary teams are advantageous in resolving the likelihood of mistakes and also subjectivity from the decision making process. In addition, because the assessment is used to determine what health or personal social services may be appropriate for the person, correct assessment is fundamental for people going into care and the nature and extent of services they will be deemed to need.
In 2006 the HSE itself advised that assessment of need for residential care would be carried out throughout the country by multidisciplinary teams of health care professionals in the course of that coming year. It used the phrase “multidisciplinary teams” again. We know what it means and we know also that certain elements are excluded from the operation of the Bill as it stands. I refer again to the complex needs of patients. The benefits of such co-operative working include timely and effective patient discharge, increased patient confidence, continuity of quality care, enhanced communication, partnership regarding resources management and so on.
My final argument, for the moment at least, in support of the amendment is to quote the Minister of State on the subject. On 26 May 2009 the Minister of State at the Department of Health and Children, Deputy Áine Brady, stated: “By maintaining the function of undertaking care needs assessments within the HSE, the legislation ensures that the applicant has access to a multidisciplinary team of health care professionals located close to his or her place of residence”. The belief generally is this is not comprehensively catered for in the wording of the Bill before the House and that a guarantee of access to such teamwork and professional expertise needs to be written into the Bill on this Stage. For this reason I put my amendments before the House and I believe the same applies for my colleagues who have placed either similar or related amendments.

Senator Nicky McFadden: I support the amendment. A multidisciplinary team is the only way to proceed. Each individual is different and, therefore, has different needs. This is especially the case for elderly men in rural areas, for example, who need support from a professional such as a social worker and this position has been argued by my colleague in the Dáil. I believe it is necessary to have a service from doctors, nurses and occupational therapists but the service should also involve social workers. No two people are the same and there should be a care package designed to suit every individual. There must be professionals such as social workers available to support the best possible care package for the individual.

Senator Rónán Mullen: I support the statements of my colleagues. We may try to take different ways up the mountain but we all agree there should be more than one person involved in an assessment and that the various needs of a person subject to an assessment should be spotted. In this regard I thank Age Action Ireland and Nursing Homes Ireland for their briefings. Mr. Tadhg Daly of Nursing Homes Ireland is present today.
My approach in amendment No. 7 is to suggest the deletion in page 13, subsection (5), line 6, of “a person or” to move towards what Senator Norris referred to as a multidisciplinary, multiperson approach and that more than one person should be involved. This is the very minimum one would expect and there should be no question of the term “a person or”. The fact the legislation is so worded suggests the Government is a good way off realising the complex and multidisciplinary nature of what is required.
Amendment No. 9 proposes the insertion of wording after the word “Executive”. The assessment referred to in subsection (5) should be carried out by persons who may be employees of the executive with experience in caring for older persons and this is the nub of the issue. I do not intend to press any of my amendments today but I call on the Minister of State to give consideration to the question of whether we should go even further. I may go further myself on Report Stage. It is not just an option but it should be a requirement that a geriatrician or a psychiatrist specialising in old age should be involved in the care assessment. My reason for this suggestion is that when decisions are being made by, for and to the benefit of a person who may need long-stay residential care, there may be a number of competing interests and sometimes those competing interests may be unconscious on the part of the people who hold them. I refer to an example suggested to me by a geriatrician who has great expertise in this area. He suggested that a younger person who is worried about Mammy or Daddy and feels they may need to go into a nursing home, has the best interests of their loved one at heart and there is no doubt about that. However, they also want their own peace of mind. I will put it bluntly that Mammy or Daddy, on the other hand, might prefer to contemplate falling down the stairs and even being on the floor overnight rather than losing their independence. It may well be that a person who has experience, such as a geriatrician or a psychiatrist who is a specialist in old age, who would see that older person in a consultation, might well be able to tease out some of the issues causing concern to the older person in question. It seems to me that geriatricians and psychiatrists have the kind of experience of dealing with cases that makes their participation not something to be considered as a desirable inclusion if possible but as something that should be mandatory. I ask the Minister of State to give consideration to this proposal.
Amendment No. 10 was earlier ruled out of order on the basis of the usual excuse that it might involve a charge on the Exchequer. I fully support what Senator Norris said in that regard. It is very important for us to be able to consider legislation properly. For example, in the case of amendment No. 10, I was suggesting that it would not be a matter of “may” but rather of “will”. My proposal was that a care assessment will include an examination of the person concerned. It seems to me that it should be a mandatory situation that it would be required that there would be a registered medical practitioner or a registered nurse, an occupational therapist or a chartered physiotherapist or any combination thereof and, as I have added, a geriatrician or an old-age psychiatrist. It seems to be very lame to exclude my proposal on such a technical ground when I am proposing that it should be mandatory rather than optional to include such expertise. This goes to the heart of this legislation. To exclude such a proposed amendment on a technical ground shows up the inadequacy of our procedures as they stand.
Amendment No. 12 proposes:

In page 13, subsection (7), lines 34 to 36, to delete all words from and including “, as” in line 34 down to and including “thereof” in line 36 and substitute the following:

“a registered medical practitioner and/or a nurse with an occupational therapist or chartered physiotherapist.”
Senators Norris and McFadden have spoken to these proposals adequately and I submit that between all of us, we are making clear the need for full and thorough assessment as distinct from something that is partial or that could be done just by one person. On that basis I will conclude my comments.

Senator Frances Fitzgerald: Two issues are dealt with in this series of amendments Nos. 6 to 14. I ask the Minister of State to consider the possibility of including social workers in the multidisciplinary team. The legislation is not making their inclusion mandatory but is proposing that professionals are to be used as appropriate. There would be occasions where it would be appropriate that a social worker would be the professional involved. It would seem to me to be very reasonable to include this provision. Given the role of social workers in doing this type of assessment and their familiarity with such assessments and care plans and meeting families where care is needed, to exclude the social work profession from this group of professions is inappropriate and I ask the Minister of State to return on Report Stage and respond to that point.
There are two issues in the care needs assessment where I would see the social work assessment as being critical. The legislation states that the family and community supports available to the person should be assessed and the personal social services that are available to the person should be assessed. It would seem unreasonable to exclude the profession of social work and I ask the Minister of State to consider this proposal.
The independence of the care needs assessment is addressed in amendment No. 8. There is an inherent problem with the HSE being the provider of the service and the body that establishes whether the person is entitled to receive the service. There could be a real conflict of interest and there could be an under-reporting of need, simply because the resources are not in place. The same body would be doing the assessment and recommendations and supplying the service. I refer to a number of groups with an interest in this area. I compliment Age Action Ireland and the Nursing Homes Association of Ireland for the interest they have taken in this Bill and I am sure the Minister of State is also looking at their submissions.
Assessments of need for those with autism carried out in the UK found that very low prevalence rates were found that were completely inconsistent with the national average. The belief was that this under-reporting happened because the services were not in place so there was a tendency not to identify the need. For example, if the HSE is coping with shortages of services which will be the case while at the same time it is being asked to do the assessments, if one is operating within the same service, the tendency might be to minimise the needs of the person. To avoid any under-reporting, we propose that the assessment of needs should be conducted by a multidisciplinary team of health care professionals who are independent from the HSE and the Department of Health and Children. I look forward to the Minister of State’s response.

Senator Paul Bradford: I support the points made by the two previous speakers about the type of examination which is required to ensure the correct result is obtained for the elderly person who would be the subject of the application. It is very important to ask for what this legislation provides. We must be determined that this legislation is for looking after the interests of the elderly people in a holistic fashion and who may need nursing home accommodation. The legislation should not be about making the State feel good about the fact it is providing in some fashion a clean bed in a clean nursing home. It should not be about simply reassuring families that their loved one is looked after; it must be about what is best for the elderly person who may be placed in a residential nursing home. As part of the assessment of that person’s application and more important as part of the decision as to whether a nursing home solution is either the best or the only option, we must consider all the aspects, not simply the financial aspect, not from the perspective of whether a family member is available to care for them in their own home or community, not whether neighbours or friends can help out; it must be a case of considering what is the best for the person concerned. This is the reason it is so important that all strands of examination from a social worker to the physiotherapist and the GP is part of that equation.
Senator Mullen made an interesting and challenging observation as to what the person may wish for himself or herself. It may not be a clean bed in a clean nursing home and safety from robbery and vandalism. It may be a desire to spend his or her remaining years in the community. To arrive at that solution might require considerable questioning and probing. That is why it is important the examination be done by a multidisciplinary team, as is proposed.
I hope the Minister of State has, at the core of her thinking, what is right for those who are elderly today because that will be all of us tomorrow. The legislation is not about filling a gap, getting rid of the inconvenience of nursing home subventions and finding places for elderly people when there is no one to look after them. That would be a very sad philosophy on which to base legislation in the 21st century. Assessments must include the broadest possible physical, physiological and psychiatric services. The necessary teams must be in place. We must not seek easy answers but look at the question from all angles. I ask the Minister of State to consider these amendments. The Bill must not present the neat and easy solution of Shady Pines. We must be broad in our thinking and aspirations.

Senator Nicky McFadden: Subsection 7(6) states that a care needs assessment of a person shall comprise an evaluation of a list of several aspects of a person’s needs. The list consists of physical needs. The subsection refers to the provision of “medical, health and personal social services” but I cannot see a mention of mental health. As my colleague has said, we must be concerned with the whole person and not merely with his or her physical needs. While I do not wish to be patronising, psychiatric illness among the elderly is a serious issue. Senator Mary White will agree that there has been a huge increase in suicide among the elderly. Psychiatric services should be part of the multidisciplinary approach.

Deputy Áine Brady: These amendments all concern the issue of who may undertake the care needs assessments. Amendments Nos. 6 and 7 would require all assessments to be carried out by more than one person and by a multidisciplinary team. I can assure Senators that applicants will have access to assessment by a multidisciplinary team, as required. As stated previously, the care needs assessment is intended to be a flexible, person-centred process. It acknowledges the reality that some applicants will require a greater level of assessment by a wider range of health care professionals than others. The legislation mirrors this, enabling a person to be assessed by more than one professional, as necessary. This approach is appropriate as forcing applicants to be assessed by all professionals, regardless of their particular care needs, would detract from the flexible nature of the assessment, divert precious health care resources away from front-line services and into unnecessary assessments and could cause needless delays for persons requiring long-term residential care. In addition, the term “multidisciplinary team” is not defined in legislation and I would be concerned as to whether the term could be legally contentious. For these reasons, I do not propose to accept amendments Nos. 6 and 7.
Amendment No. 8 proposes that care needs assessments would be undertaken by a representative of the Health Information and Quality Authority, 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 would distract from its critical role as a national regulatory authority. It would also represent an inefficient use of public resources. By maintaining the function of undertaking care needs assessment within the HSE, the legislation ensures the applicant has access to a multidisciplinary team of health care professionals located close to the applicant’s place of residence. Such health care professionals will simultaneously be engaged in the provision of care, either within the acute sector as part of their 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 a resulting drain on the provision of front-line 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. 9 seeks to stipulate expressly that the person carrying out the care needs assessment must have experience in caring for older persons. The legislation provides that such persons must be suitable, which is defined in section 3 to mean the person has the necessary qualifications, training or experience, or combination thereof, to perform that function. As such, the proposed amendment is superfluous. I do not propose to accept amendment No. 9.
Amendments Nos. 11 to 14, inclusive, all concern the issue of examinations conducted under section 7(7). This subsection is merely an enabling provision which relates to physical examinations under the care needs assessment only. The actual legal basis for undertaking care needs assessment is section 7(5) which states that care needs assessments shall be carried out by persons who, in the opinion of the HSE, are suitably qualified to make the assessment. The intent and purpose of subsection 7(5) is to ensure a multidisciplinary team may carry out assessments on a flexible basis, as required. As such, I can confirm that the section will enable assessment by social workers, as necessary.
On a related note, the parameters of the care needs assessment as set out in section 7(6) extend to social as well as medical and health issues. The assessment is, therefore, holistic in nature. I trust this clarification addresses the concerns of Senators. On this basis, I do not propose to accept amendments Nos. 11 to 14, inclusive.

Senator David Norris: The Minister of State, although of very pleasant demeanour, is not giving very much to the Seanad. There was a slight chink that indicated she might consider some aspect of the principle. I am a little disposed to calling a vote but I will relent and leave the matter to Report Stage if the Minister of State can indicate she will consider some of the substance of what was said. For example, I referred to the apparently exclusionary effect of having a list. In Bill after Bill we are told not to add items to lists because it would appear to exclude other categories. Section 7(7) includes a brief list followed by the phrase, “or any combination thereof”. This suggests the addition of any other specialised expertise is not contemplated. It is noticeable there is no mention of social workers. Senator Fitzgerald and I have proposed the inclusion of references to social workers at different points in this section. Can the Minister of State reassure Members about this? Social work is a professional area which is very helpful in assessments.
If the Minister of State can give an assurance that she will look again, charitably, at what has been said by Senators and, perhaps, promise a further review on Report Stage, we may not be inclined to push for a vote. On the other hand, there is always that possibility. I do not suggest there will not be any votes. There may be some later on.

Senator Rónán Mullen: Like Senator Norris, I admire the Minister of State’s demeanour while regretting her lack of flexibility. The word, “flexibility” is key. The Minister of State herself spoke of the need for flexibility. The word can be a euphemism when we think how the wheels of authority grind. The need for flexibility can permit an unhelpful vagueness about what is to be provided. We should focus not so much on flexibility as on accountability and excellence. That is the reason we are proposing a high degree of specificity about what is required when an assessment is being made.
I remind the Government that its record is not good in this regard. Should we depend on everything being fine because the language is sufficiently broad to include everything that might be required? Recall that although people have a constitutional right to State-funded nursing home care, less 80% of the non-contributory pension, the authorities have not wanted people to know about that. Health care professionals who advised people who were thinking of opting for the relatively high cost subvention scheme of nursing home care for loved ones of their right to State-funded nursing home care were regarded as going offside. When they said that if they were told the constitutional position is otherwise, they would advise people accordingly - I spelt this out on Second Stage - the HSE officials more or less said: “You know the score”. This is the State’s record. Recall, too, that in recent days we have been discussing the Ryan report and the failure of the apparatus of the State to treat people properly. It is happening in this area too, in a different way. People have not been encouraged to pursue their rights.
I would go further. Earlier, my amendment proposing the inclusion of the therapeutic needs of the person was ruled out of order. Under the guise of generosity and giving people peace of mind, what has really happened here is that the State has not wanted people to know their rights. Then it holds out the so-called fair deal as a type of manna from heaven. There is something wrong with that. There is also something wrong with the fact that in a system where the State proposes to take money from people in the form of a proportion of the value of their property after their death, which is unprecedented, the people who would avail of such provisions are not guaranteed, at least, all necessary therapeutic care. We are aware of the diversity of needs of people in long-stay residential care. What should be on offer from the State, which presumes to take some of their property after their death, is at least everything they might be able to get if they were on the top plan of the VHI. That would be cherishing all the children of the nation equally, including our older citizens.
Therapeutic care in nursing homes is important and should be front and centre of what the State proposes to provide. Consider a person who has a swallowing disorder or a condition that might require some form of speech therapy. Is that provided for or guaranteed under this legislation? I do not think so. However, it arose in the Leas Cross report, and calls for such care provision were included in the Irish national audit of stroke care. That was accepted. It is interesting to note that Appendix A in the HIQA nursing home regulations for standards in residential care refers to the need for a minimum data set for needs in nursing homes. I am talking about an all-encompassing assessment of the needs of people who go into long-term residential care, with their full range of needs being assessed and set down. It would be much more than the rather vague assessment in which merely one person might be involved, as proposed by the legislation for the care assessment.

Something more thorough is required and this is aspired to by HIQA in the appendix. Not only would this help to ensure that the various needs of the person going into long-stay residential care would be addressed but it would also ensure thorough data for assessing how our nursing homes are performing, data which could be compared with international experience. However, I do not believe that is forthcoming and I regret that very much. At least we should be considering a national computerised system that gives instant feedback on each person’s needs as well as our ability to assess the quality of the response at any time.
That is the reason for our concern. When the Minister talks about flexibility, what she is really endorsing is an unhelpful vagueness that will, on occasions, not prevent the correct assessment from taking place but very likely on other occasions will provide cover for an inadequate response to the care needs of the individual.

Senator Nicky McFadden: I share the concerns of Senator Mullen, Senator Fitzgerald and the other Senators on this side of the House. The phrase “any combination thereof” must be outlined more clearly. This is about the person’s mental state, their happiness and how they will live the rest of their lives. As Senator Mullen said, a contribution from the person’s estate will pay for this service. This is not just about forgetting our elderly by putting them into horrible institutions, as we did in the past, but about creating a home for the elderly, our relatives and loved ones, where they can live complete lives. They should be able to garden, to live in villages for the elderly, to get their hair done and look after their other necessities.
Assessment by a psychiatrist is necessary and it should be included in the list of needs. The Minister has provided a very comprehensive and good list but there is no reference to the mental health of the individual. There have been appalling circumstances in the past and the Minister cannot blame us, as legislators, for not having confidence. The Minister must reassure us. The last phrase “any combination thereof” is too vague.

Senator Frances Fitzgerald: Senator Rónán Mullen and Senator Nicky McFadden have put the case extremely well. There is a real danger of minimalist standards, combined with the lack of an independent review. There is a striking lack throughout the Bill of provision for independence or independent reviews, or involvement by people other than the HSE. This can be linked to an earlier amendment I put down which was supported by my colleagues. That amendment provided for a report to the Houses about the amount of money. When the Minister responded to that proposal, she said that what I had said about mental health was not correct. It was correct; I have checked it. There was a special allocation for the implementation of A Vision for Change, but that money was hived off. What the Minister said was incorrect. The money was put aside for mental health but it was hived off and not spent in the area for which it was allocated but on general health. That is the reason for having the specifics built in and the Minister reporting back to the House. It happened previously and it could happen in this area as well. That is also the reason there must be provision for independence in the Bill, whether it is with regard to care assessments or other reviews, the nursing homes, disputes about fees or other issues. There must be provision for independent review but it is not included to the necessary degree in the Bill.
The other issue is the care assessment. It is assumed that we are discussing quite high dependency persons. High dependency generally means there is a range of needs that must be assessed. It is unlikely that one discipline would be able to do that. The Minister should name a social worker and a psychiatrist in the list of the potential people who should make assessments. In addition, she should go into more detail about the guidelines she intends to publish. Perhaps she will clarify whether this area of assessment will be addressed in the guidelines, how the multi-disciplinary assessment will be carried out and by whom. What is the standard of assessment?
Previously, when I worked as a social worker, I was involved in assessments and they can vary. Senator Callely said assessments often need to take place over time, and that is true. It is likely that a number of disciplines would be required and that there would be certain minimum standards. It would be necessary to examine the physical, psychological and mental health and the social care provisions. In most cases all these issues would have to be addressed so a proper final care assessment can be carried out. That should be spelt out. The specificity which Senator Mullen discussed is the key point because without it one is potentially dealing with low standards and lack of proper assessments. My other point relates to long-term residential care services. What exactly are we talking about here? This is not spelt out in the Bill and many people are concerned about it, including many providers of such care and people who work with the elderly. If a person is obliged to give up 15% of his or her home, to be taken from the family, exactly what will he or she get for it? What level of care and what services will people receive? Will physiotherapy and occupational therapy be included? What minimum and maximum standards are guaranteed in the legislation given what is proposed, namely, the financial intrusion and demands made and the precedence to be set in the taking of money from estates? This may well be necessary but what will people get for their 15%? Is this information outlined anywhere? Will the Minister of State address this matter?
Might there be a situation in which nursing home residents would not have the same entitlements to specialised equipment, therapies and access to allied health professionals they currently enjoy in the community? We know that community services are lacking for the elderly at present but I acknowledge there have been great improvements, for example, in access to occupational therapy. Occupational therapists call to elderly people in their homes, make assessments and provide the aids and equipment necessary and this has led to a qualitative improvement in people’s lives in the community. However, is there a possibility that people might end up in nursing homes without such access, having had 80% of whatever money they might have, such as pensions, taken? They might not have access to money to be able to afford to get basic services they badly need. What will nursing homes do if they find themselves in this situation, without any clarity?
I intend to discuss section 11 of the Bill and I hope my colleagues will do so also, especially the lawyers in the House. I am intrigued by this section which states there is no obligation to provide for or arrange for the provision of any such services. I find that an extraordinary paragraph. Perhaps it is pro forma but it brings up the issue of an obligation to provide services. Where is that laid down? What is the obligation and what is the standard of such services, considering the 15% of money and estate that is to be taken?
I ask the Minister of State to return to this matter. Is one entitled only to one’s health care, food and bed, or are other services such as physiotherapy, chiropody and occupational therapy included? How can we find out about this? How can we know what is included? Where is it specified in the legislation? Will it be included in any guidelines the Minister of State will publish? If not, there will be a very big gap with very serious financial consequences for individuals, nursing homes and the State. This is an issue we must discuss in the House and there must be clarity on it from the Minister of State, either now or on Report Stage.

Senator Paul Bradford: I hope the Minister of State has been listening intently to what was said by previous speakers. One of the weaknesses in the way we treat legislation in this country is that a Bill is published and a great deal of debate follows but minimal changes may flow from it. It is disappointing that, although there were ongoing debates about the elderly and their care before the publication of this Bill, we did not have a level of substantive debate, either in the Houses of the Oireachtas or at the Joint Committee on Health and Children. We might have teased out the problems and put forward our ideas about possible solutions in advance of publication.
This is a very important political debate but is also important philosophically. It is a statements debate because it offers a statement about how we wish to see today’s elderly being treated. All of us will be tomorrow’s elderly. I am worried that what we are doing is a housekeeping rather than a homemaking exercise, if the pun may be forgiven. It is about fitting people into a slot where they will be neat and tidy but removed and no longer the source of controversy and debate.
Reference was made earlier to the Ryan report and to what we must do as a result of that dreadful report and other similar ones dealing with what we deem to be atrocities. There is talk of a referendum on children. I hope that will come to pass and that children will have strong constitutional and legal protection. In 1983 and on other occasions we introduced into the Constitution protection for our unborn and I am happy with that provision. On Second Stage I made the point that perhaps it is time we deemed necessary the possibility of having a referendum to provide protection in the Constitution to safeguard the rights of the elderly in our community. That may be the type of statement we should make as a society.
Unfortunately, there are people in this country today who are literally afraid to grow old because they have no idea what the future holds for them. This Bill is an attempt to resolve their worries and concerns but it is politically and philosophically wrong in the sense that we are trying to find a solution to remove the problem from our books rather than address the needs of tens of thousands of our citizens. I do not mean this as party political and I hope the Minister of State knows me well enough to realise that.
The debate, therefore, must be wide-ranging as must the examination of options. That is why it is so necessary the Minister of State should take on board what we are saying. Perhaps we will not divide on Committee Stage. We are all going down the same road and in some way will all be part of the consequences of this legislation. We must get it right. The debate has not been sufficient over the course of the past two or three years. We do not seem to have recognised fully the demographics of society or faced up to the challenge of what we know the population trends will produce. However, if this Bill, in its amended form, is to bring about the sort of place in our society which our elderly people can enjoy, with safeguards, security and other options, more must be done. This is only a small part of what we should be trying to do for our hundreds of thousands of elderly citizens. We will not debate again today the questions of carer’s allowance and benefits, community care and housing associations etc. That is for another day. In so far as we are trying to provide long-stay residential care by means of this Bill, it is crucially important that we approach it from the widest possible remit and that the type of concerns my colleagues have outlined should be taken on board by the Minister of State.
This is a profound political opportunity for the Minister of State to make her mark. Since I had the privilege of joining the Oireachtas over 20 years ago I have to say, looking at all sides of the Houses and all political parties, there have been very few Ministers who could genuinely say they had made a difference when they walked out of Leinster House. One who made a difference, with regard to the elderly and their care, was the late Seamus Brennan. Most people simply pass through and finish their job without making any real difference to anybody. I hope the Minister of State will avail of this opportunity to put in place a scheme of care and support for our elderly which will make a difference. She should try to approach that in the right direction, philosophically speaking.
The Bill needs significant changes, particularly in the thinking that underlies it. We are asking for a very small step, namely, that there should be the broadest consultation, examination and level of analysis of each person’s unique circumstances. Rightly and properly, we love to tell children and teenagers how unique they are and how many options lie before them. The world is their oyster. The thinking in the Bill says to people at the other end of the life cycle they are not unique but more or less the same and one solution will fit all. I certainly do not agree with that analysis and hope the Minister of State can bring about the changes that will make life not just bearable but better for the people who have built this country. Our paying so much lip service to the elderly and claiming they built the country, etc. is glib, self-satisfying and hypocritical unless we make real changes and make this Bill work. We must put people, including the elderly, at its centre and not regard them as parts of some economic equation.
Progress reported; Committee to sit again.

Visit of Chinese Delegation.
An Cathaoirleach: Members of the House will wish to join me in welcoming a delegation from the National People’s Congress of China led by the Mr. Zhang Bolin, MP. On behalf of myself and my colleagues in Seanad Éireann, I extend a very warm welcome to the delegation and sincere good wishes for a very successful visit.

Nursing Homes Support Scheme Bill 2008: Committee Stage (Resumed).
Debate resumed on amendment No. 6:

In page 13, subsection (5), lines 5 to 7, to delete all words from and including “shall” in line 5 down to and including “Executive)” in line 7 and substitute the following:

“shall be carried out by a multidisciplinary team (who may be employees of the Executive)”.
- (Senator David Norris).
Senator David Norris: Part of the problem experienced by those of us who are pushing for a multidisciplinary approach is that this legislation, like most legislation generated by the Government, is not fundamentally rights based. Therefore, there is no automatic entitlement to anything. That underlines Senator Fitzgerald’s point that the Government does not want to be tied in to automatic financial liability in servicing the needs of patients, which is a pity. I know we face difficult circumstances economically but many of us in this House have argued for rights-based legislation.
All Members on this side have been eloquent. Equally eloquent is the silence on the Government side because, to quote our friend the late James Joyce, “silence gives consent, Mr. Anklegazer”. If silence is equated to giving consent, there is some agreement on the Government benches. It is masked by a discreet silence. For the sake of inclusiveness, I must point out that my two female Fine Gael colleagues, Senators McFadden and Fitzgerald, said Senator Mullen had made his defence well. For the sake of being complete, I must state I argued well also. I would hate that to be omitted from the record.

Senator Rónán Mullen: Hear, hear. There is no surprise there; an rud is annamh is iontach.

An Cathaoirleach: Senator Norris should speak to the amendment.

Senator David Norris: My point is absolutely on the amendment. It is a pre-emptive strike to save a little time. I anticipate what the Minister of State may say in part of her response, especially on the plea many of us have made for the inclusion of social workers as a category. It is quite astonishing that they should be left out in light of everything that has been said by Senator Fitzgerald who has professional experience in this area. For that reason alone we should listen to her argument.
Having read the record, I note Deputy Paul Connaughton of Fine Gael made a very strong argument for the inclusion of social workers because there are isolated elderly males in rural circumstances. He stated their social background should be assessed in addition to the other criteria. It is very ironic today that the rural night-time bus service is to be cancelled for economic reasons, bearing in mind that it was introduced after a very powerful intervention by the President of Ireland, Ms Mary McAleese, and her husband, Mr. Martin McAleese. It is now possible that it will be withdrawn and it is important to bear this in mind.
I understand that in the discussions in the Dáil, amendments were tabled to the legislation. Amendment No. 114 - I am not sure whether it was tabled by the Government or Fine Gael - concerned the addition of social workers to the list of specified persons in the Bill. If the Minister of State is going to pop that one out at us, so to speak, and suggest it addresses the matter, it will not be acceptable. The provision was incorporated into the text of the Bill as received from the Dáil but its effect is to include social workers as a category of persons able “to apply” for assessments. The word “apply” is used but the wording does not include social workers among those persons involved in the making of assessments. That answer would not be regarded by me or Senator Fitzgerald as satisfactory. I am signalling that point, which is my shot across the bows.

Senator Ivor Callely: It is with interest that I listened to the various contributors to this debate. On one hand, I concur with most of the contributions but, on the other, I am not too sure whether we should allow ourselves to get bogged down in ticking the boxes and ensuring everyone is included for the sake of assessment. One can have assessment after assessment and involve everyone but usually the people involved in the provision of care to the elderly, who may have tapped in with service providers, either on a day care, respite or treatment basis, would probably have a very good handle on the level of care required rather than those persons whom Members propose should be included in the assessment process. I ask the Minister of State to clarify the phrase “may include” in section 7. Does this mean “may not include” equally?

Senator David Norris: Absolutely.

Senator Ivor Callely: Are we getting hung up on circumstances that may arise and, in particular, getting hung up on one discipline? I ask that this be clarified.
It is in everyone’s interest, including that of the Minister of State and her officials, that we deal with the legislation along with the proposed regulations. If the guidelines are not available at this stage, a draft should be made available. This would assist Members and would probably prevent our wasting much time in discussion.
Other speakers referred to the level of care provided to elderly people in long-stay care. I was on the circuit for a little while with regard to the provision of services. Before this, I was involved in the pharmaceutical industry and visited a number of the institutions under discussion. There are few that I have not been in, including long-stay hospitals. Senator McFadden and others asked about the services old people will be receiving.
In my family there was a discussion about the need for long-stay care for one individual. When I mentioned St. Mary’s in the Phoenix Park, a long-stay provision institution, one family member said: “Never, what a place.” I had to correct the individual and asked when they were last in the institution. It so happened they were last there to visit their granny 30 years previously. I encourage every Member to visit the fabulous new facility in St. Mary’s. Tremendous, state-of-the-art units have been built at the back and there is a tremendous array of services. This has not just been achieved in the public sector but has also been achieved in the private sector. Certain incentives have been put in place to encourage private operators to develop additional services for the elderly.
We should send out a clear message from this House that there is a tremendous array of services, including hair dressing and physiotherapy, of which one would like to see the elderly avail. They are probably not being provided to every single bed but that is because there are a number of beds in the system for a considerable period. We need to remove them from the system when we roll out the new beds and ensure the latter beds have the required array of services. Will the Minister of State indicate the number of long-stay beds currently in the system and the number that have been identified as requiring an upgrade by way of support services?

Minister of State at the Department of the Health and Children (Deputy Áine Brady): The intent and purpose of subsection (50) is to ensure a multidisciplinary team is available to carry out all the assessments on a flexible basis. Under subsection (6), the assessment extends to social as well as medical and health issues, whereas subsection (7) deals only with a physical examination. The multidisciplinary teams established by the Health Service Executive in pilot schemes around the country include geriatricians, social workers and members of other disciplines specialised in older person care.
The term “suitable” used in the Bill encompasses the fact that a person should have appropriate experience in the care of older people. The common summary assessment record is the standard reporting format for the care needs assessment. It will ensure the person’s care needs across all parameters of the assessment are examined and recorded. The cost components of public care will be laid before the Oireachtas.
Some of the concerns raised by Senator Mullen will be addressed by the new standards and regulations for care and nursing homes. The Minister has approved new standards and will underpin these by regulation in the near future. Among other things, these regulations will provide individual care plans for residents of nursing homes and quality of care in nursing homes, including social and care needs. They will be inspected by the Health Information and Quality Authority, HIQA.
On mental health, which was raised by Senator McFadden, the care assessment will include cognitive ability, orientation and any other matter that affects the person’s ability to care for himself or herself. The phrase “long-term residential care” is defined as maintenance, health or personal care services.
The term “multidisciplinary” is not used in the Bill and is not defined in legislation. The use of the singular and plural form, as in “person” or “persons”, is consistent with the Disability Act 2005. However, I will consider the amendment on this matter, subject to legal advice.

Senator Frances Fitzgerald: The Minister of State indicated several times that the care needs assessment is a physical assessment under subsection (7). Under subsection (6), however, it is clear that a care needs assessment takes into account family and community support as well as medical, health and personal and social services. The members of the multidisciplinary team are not defined under this subsection.
The Minister of State indicated that subsection (7) refers only to a physical examination. Where is the issue of the multidisciplinary team addressed? Who will do the assessment once it has been determined as being required under subsection (6)? If, under subsection (7), the evaluation will be a physical assessment and will be done by a doctor, nurse, occupational therapist or chartered physiotherapist, who are the multidisciplinary professionals who will carry out the assessment, as defined under subsection (6)?
I acknowledge the Minister of State’s commitment to return to this matter and propose to withdraw my amendments until Report Stage.

Senator David Norris: We will return to the substance of some of these matters in later amendments. With regard to the multidisciplinary aspect, I am not aware of any occasion in the Bill where the phrase “multidisciplinary team” is employed. Perhaps the Minister of State will point to a passage where the term is used as I may have overlooked it. I note her skilful advisers are searching through the Bill. It will be interesting to ascertain whether they have found a case of the term being used as it would provide Senators with an opportunity to examine it.
We should not have a completely gilded view of the services currently available. My distinguished colleague, Senator Callely, referred to St. Mary’s Hospital in the Phoenix Park and suggested Senators should visit the facility. He also noted that somebody had spoken about the hospital in less than glowing terms - I believe it was in the other House - and when questioned on the matter it transpired the person in question had not been to the hospital for 30 years. I have been to St. Mary’s Hospital in the past two years and I raised conditions in it on the Adjournment. I pay tribute to the remarkable professional devotion shown by its staff. Some aspects of the hospital have been renewed and I understand that process is continuing, which I welcome.

An Leas-Chathaoirleach: The Senator is drifting from the subject of the amendments, which refer primarily to the assessment of need.

Senator David Norris: I am aware of that. The Senator opposite engaged in an extensive flight of rhetoric about the issue. I am simply putting the matter in context in order that someone reading the record in subsequent years will not be misled. As far as I am aware, the older sections of St. Mary’s Hospital, which are Dickensian, are still in use. Let us, therefore, not have a glowing view of the hospital, which is not to criticise its staff. It is a fact, however, that some of the plant in it leaves a great deal to be desired.
That the Minister of State appears to be becoming more and more flexible is welcome. Before we wear her out, perhaps we should move on to subsequent amendments. I understand she is examining the position and will return to the matter on Report Stage.

Senator Ivor Callely: I was interested in the Minister of State’s comment that the evaluation will be a physical assessment. In what setting will assessments be carried out?

Senator Nicky McFadden: The Minister of State used the term “cognitive ability” in response to the issue I raised about the mental health needs of the elderly. Cognitive ability does not necessarily cover mental health. I refer specifically to people with depression or psychosis and those who may be psychiatrically unwell. None of these areas is covered in the evaluation.
Subsection (6) sets out that the evaluation will include an assessment of a series of areas, including whether a person is able to dress and bathe, is incontinent and so forth. However, it does not cover the issue of mental health. Given that subsection (7) explicitly refers to the professionals who may be involved in an assessment, I ask the Minister of State to consider inserting a reference to a geriatric psychiatrist in this subsection.
I do not need to expound on the wonderful care centres in my area where care services for the elderly require substantial additional funding. In the Mountmellick area, for instance, two physiotherapists in one care centre must deal with 140 patients, including outpatients. I am concerned about budgetary constraints.

Senator Rónán Mullen: I thank the Minister of State for her response. I know she is a caring person. Senator Bradford’s motivating speech encouraging her to consider her legacy may partly explain the flexibility she has shown. I welcome and appreciate her commitment to examine the use of the plural form.
On the guidelines which will be subject to examination by HIQA, will appendix A of the HIQA nursing home regulations as it relates to the minimum data set be implemented in full? This will be necessary if the individual’s needs are to be addressed in full and the detail recorded in such a way as to allow the data to be entered into a system and used to assess our performance at national and international level.

Senator Mary M. White: Having listened to Senator McFadden’s comments on this issue, I share the view that dealing only with the physical aspect is a form of housekeeping. Each human being is unique. This faces all of us in the future. We discussed in the Seanad a report done by NUI Galway that the practical needs of older people in nursing homes were being looked after reasonably well but there is a holistic need which makes a person happy in his or her situation.
There are geriatricians, a relatively new medical profession in the country. Providing for a general practitioner is narrow. The section would want to be more defined on who is experienced in dealing with people who need care. This Bill is not only about older people. It is about any person of any age who needs long-term care.
I agree with my colleagues that “cognitive ability” has nothing to do with the person’s emotional health-----

Senator Nicky McFadden: Hear, hear.

Senator Mary M. White: -----and whether the person is happy that he or she is living in the nursing home as a home from home. The person wants to be at home but he or she must be in the nursing home. The happiness part, how the person feels, is the most important part. I would prefer to be happy and have the place untidy, but my emotions, my feeling about myself and whether I am happy in the place would be predominant.

Deputy Áine Brady: In reply to Senator Norris, the term multidisciplinary is not used because it is not defined in the legislation. I stated already that the use of both singular and plural is consistent with the Disability Act 2005, but I have agreed to consider this amendment in terms of the person and persons.
The care needs assessment will be carried out by a person suitably qualified. As defined in section 3, “suitable” means that “the person has the necessary qualifications, training or experience, or combination thereof, to perform that function”, and that would include the holistic approach to this person as an individual, not only looking at the physical.

Section 4(7) is only an enabling provision relating to the physical examination if it is necessary. It is a safeguard that is in place and it will be carried out after consultation with the particular individual. These assessments are undertaken in any setting, acknowledging that some people will enter a nursing home from an acute setting while others will enter from the community. It will be after discussion with the individual or, obviously, the carer.
Senator Mullen referred to the minimum data set. It is not part of the standards approved by the Minister; it is an appendix. There are serious resource and logistical issues around selecting and implementing an agreed national minimum data set and my Department will be examining this once the new inspection regime is up and running. That addresses many of the issues raised.

An Leas-Chathaoirleach: We have given those amendments a good airing.

Senator David Norris: If I may make a positive final comment, and this is a serious matter, I can recall a case in which I was involved where an elderly woman was living in conditions of considerable untidiness which I will not describe as squalor as they were not unclean. She had a serious problem with her eyesight and, eventually, with her co-operation I arranged for her to be hospitalised for a short time. She was never brought back home. I had arranged for the place to be done up and various things put in for her and it was really rather sad because she was transferred, after assessment, to a State facility. With the best will in the world I am not sure the care was adequate because this elderly lady eventually succumbed to the effects of very serious bed sores. It was a horrible way to go. If she had been assisted after assessment involving social workers and a multidisciplinary team, it might have been possible for her to go back and live her untidy life as she wished in her tiny house and she would not have died in agony from the bed sores. That is where Senator Mary White on the Government benches is coming from.
This is my last word on it. The Minister of State said I was correct in stating that the term “multidisciplinary” is not used in the Bill. The reason she gave was that there is no definition of “multidisciplinary” in the Bill. That is a circular argument. Of course one does not need a definition if it is not included. An important opportunity has been missed to include that definition and it is not adequate to state that it does not occur in other Bills. This was a moment to include it because this is the Bill where it is most appropriate.
There is a perfectly adequate definition of “multidisciplinary” from the HSE and from the correct support services, and we could have included it in the legislation. As the Minister of State says the aim is to get multidisciplinary assessment, let us have it and let us include it. We need not be shy. We all are grown-ups. We can face it on the page. All the Minister of State need do is insert the definition. If she and her advisers are not too exhausted by this, let them look at my definition, which is the HSE’s definition, and let us insert it in the Bill. The Minister of State will not have to do any homework. We have the definition ready for her.
Let the Minister of State not say we cannot have it in the Bill because there is no definition. There is no point in having a definition of something if it is not included in the Bill. Let us put it in. We have given her the definition. That is being helpful.

Senator Ivor Callely: I was interested to hear the Minister of State say it could be in either setting. Is that either-or or either?

Deputy Áine Brady: Either.

Senator Ivor Callely: Rather than push her on the issue now, perhaps she and her officials might write to me. My understanding of the current position is that the assessment is carried out in a hospital setting and that is why I state “either-or”, and in a number of cases where the person’s desire is to return home, it is carried out in the home as well. This is why I stated earlier that we could get bogged down in the entire assessment process. When the opportunity arises, perhaps the Minister of State would pencil a note to me on that issue. In my initial contribution I also mentioned the participation of family members in a case conference on such assessment, their role and how they will be accommodated in that regard, and I ask for clarification on that.

Senator Nicky McFadden: While I accept that the Minister of State aims to include a holistic approach to the care of the person, I do not understand why she will not include the phrase “mental health” as well. I ask her to consider including that phrase. She has spelt out all the other physical needs of the person and it would be important to include the phrase, the “mental health” of the individual.

Senator Mary M. White: I agree with that.

Deputy Áine Brady: There is no amendment asking me to insert those words.

Senator Nicky McFadden: In all these amendments we have been discussing the needs of the person. While neither the Minister of State nor we have not spelt it out, it seems extraordinary we have not included it.

Senator Mary M. White: It goes back to the proverbial problem that there are not enough women in the Oireachtas, either in this Chamber or in the Dáil. Most of the legislation is drawn up by men and they are missing out on the emotional aspects and the feelings. Naturally, women, as politicians, go for it. There is no question about it. In countries where there is an equal number of men and women legislators the legislation is much more socially minded and far more advanced. It brings us back to the same issue again.
From my document on suicide and my document on older people, my view is that the emotional needs should have equal priority. The list in the section is cold-blooded, factual and bureaucratic. No matter what argument is put up against that, if a few more women were drawing up this legislation, it would be much better.

Senator David Norris: Senator Mullen and I have highly developed feminine sides.

Senator Rónán Mullen: Steady on.

Deputy Áine Brady: I made the point that we do not want to have a situation where applicants have to be assessed by a whole series of professionals and have assessments they do not need, but I will take on board what the Senator said about mental health issues. The multidisciplinary teams currently being piloted around the country include geriatricians, social workers and many other disciplines. They are already in place. I will get legal advise on the use of the term.

An Leas-Chathaoirleach: Is amendment No. 6 being pressed?

Senator David Norris: Not at this stage.

Amendment, by leave, withdrawn.
Amendment Nos. 7 to 9 inclusive, not moved.
An Leas-Chathaoirleach: Amendment No. 10 is deemed to be out of order because of a potential charge on the Revenue.

Amendment No. 10 not moved.
Amendment Nos. 11 to 13, inclusive, not moved.
Senator Nicky McFadden: I move amendment No. 14:

In page 13, subsection (7), line 36, after “or” to insert “a social worker or”.

An Leas-Chathaoirleach: Is amendment No. 14 being pressed?

Senator Frances Fitzgerald: The Minister of State did not respond to this amendment. Is she willing to consider it?

An Leas-Chathaoirleach: We have completed the discussion on this. Is amendment No. 14 being pressed?

Deputy Áine Brady: The amendment relates to physical examinations only, so social workers are not necessary.

Amendment, by leave, withdrawn.
Senator David Norris: I move amendment No. 15:

In page 14, subsection (8), lines 3 to 5, to delete all words from and including “that” in line 3 down to and including “lifetime.” in line 5 and substitute the following:

“that it is likely the person will require care service for a period of not less than 30 consecutive days or periods in the aggregate amounting to not less than 30 days within a period of 12 consecutive months.”.
This is to delete a certain number of words in subsection (8) and replace them with “that it is likely the person will require care service for a period of not less than 30 consecutive days or periods in the aggregate amounting to not less than 30 days within a period of 12 consecutive months”.
I recollect the sense of this amendment. The intention of it is to ensure that immediate care is effected and that we reassess the situation where the Bill, as currently phrased, appears to assume that there will be a necessity for lifetime care. That closes the option of hope and optimism and the idea that there will be a rehabilitative element in nursing homes and after a brief stay a person may come out again. It is a rather grim assumption that people will have to stay in a nursing home for an extended period.
The phrase in the Bill to which the amendment refers reads:

Where the Executive receives a care needs assessment report in respect of a person, it shall, after considering the report as soon as practicable after its receipt, make a determination—(a) that the person needs care services, or (b) that the person does not need care services as it thinks appropriate in the circumstances of the case
My amendment would insert the phrase “that it is likely the person will require care service for a period of not less than 30 consecutive days or periods in the aggregate amounting to not less than 30 days”.
The Bill as currently framed reads, “as it thinks appropriate in the circumstances of the case, and where the Executive determines that the person needs care services, the Executive may also make a determination that it is unlikely that the person will ever cease to require care services during the person’s lifetime.” The offending phrase is “that it is unlikely that the person will ever cease to require care services during the person’s lifetime”. It is like a deferred death sentence as far as I am concerned and the phrasing provided by me, that is, “that it is likely the person will require care service for a period of not less than 30 consecutive days or periods in the aggregate amounting to not less than 30 days” and so on is a much more open approach to this difficult and complex situation.

Senator Rónán Mullen: I thank Senator Norris for tabling the amendment and expressing his objections to the original wording so eloquently because I agree with him. What turns on the executive’s ability to make a determination regarding a person on foot of a care needs assessment report that is it unlikely the person will ever cease to require care services during his or her lifetime? Why does that need to be there and why does the executive need to be able to make such a predictive statement? What mischief does that enablement of the executive seek to address? What good does it seek to achieve?

Senator Nicky McFadden: I hear where Senator Ross is coming from.

Senator David Norris: I am Tweedledum. The other old Prod is Tweedledee.

Senator Nicky McFadden: I read this differently. In my experience of elderly people, if they are in the system and are well cared for on a long-term basis it gives them great security, and their families are free from anxiety. I hear the point Senator Norris is making, namely, that it is almost a sentence for life and one never gets out. I am interested to hear what the Minister of State has to say.

Deputy Áine Brady: At present the Bill provides that the HSE may determine that a person is likely to require care services for the remainder of his or her life. This provision, in conjunction with section 3(2) of the Bill, acknowledges that the definition of “long-term residential care services” contains a minimum time period of 30 consecutive days. Its underlying intention is to enable the HSE to commence payment of financial support from the date the person enters the nursing home rather than after the expiration of 30 days.
I appreciate the intention of Senator Norris’s amendment, which is to provide for the same effect without the need for a determination regarding the likelihood of a person’s care needs over the remainder of his or her life. However, I can reassure the Senator that the existing wording was the subject of very careful consideration by the Office of the Attorney General. It achieved the Government and the Senator’s policy intention of ensuring that financial support can be paid from the first day of a person’s time in care. However, it also ensures that the HSE may take into account whether the person is likely to require nursing home care for the remainder of his or her days or whether rehabilitative care for a period of more than 30 days would be more appropriate.
It also acknowledges the second part of the definition of “long-term residential care services”, namely, that such services should exclude rehabilitative care for a period of 12 consecutive months or period aggregating 12 months within a period of 24 consecutive months. For this reason I do not propose to accept the amendment. However, I hope my response has offered the Senator sufficient reassurance on this matter.

Senator David Norris: I welcome the Minister’s response. I am not completely satisfied. I shall mull it over. I would like to address a point made by my colleague, Senator McFadden. She is dealing with the issue in a very humane manner and feels that people might be reassured by the prospect that an elderly relative would be catered for for the rest of his or her life. My understanding is that no such guarantee is given and it is all dependent on funds being available. If the funds suddenly become unavailable, there is a problem. We cannot be content that indefinite prolonged residency is assured.

Deputy Áine Brady: It will be open to anyone in residential care to at any time leave that residential care or to seek a review of their care assessment. This provision enables the HSE to pay financial support from day one of a person’s time in care rather than his or her having to wait until the 30 day period specified in the definition has expired. The provision is technical and is aimed at assisting people in obtaining support from day one. This matter has been the subject of careful consideration by the Office of the Attorney General.

Amendment, by leave, withdrawn.
An Leas-Chathaoirleach: Amendment No. 16 has been ruled out of order as it involves a potential charge on the Exchequer.

Senator Frances Fitzgerald: Perhaps the Leas-Chathaoirleach will repeat that.

An Leas-Chathaoirleach: Amendment No. 16 is deemed to be out of order as it involves a potential charge on the Exchequer.

Senator David Norris: Will the Leas-Chathaoirleach explain that?

Senator Nicky McFadden: Yes.

Senator Frances Fitzgerald: I do not agree that this amendment should be withdrawn.

An Leas-Chathaoirleach: The Cathaoirleach has deemed the amendment to be out of order as it involves a potential charge on the Exchequer. The Senator can raise her point when we come to deal with the section.

Senator Frances Fitzgerald: Yes.

An Leas-Chathaoirleach: The amendment is deemed by the Cathaoirleach to be out of order.

Senator Frances Fitzgerald: I find this extraordinary because the whole point of the Bill is to provide financial support to people who need residential care. The paragraph concerned states that the Executive does not have any obligation to provide a service.

An Leas-Chathaoirleach: Senator Fitzgerald is questioning the ruling of the Cathaoirleach.

Senator Frances Fitzgerald: I will speak to the matter when we come to discussing the section.

An Leas-Chathaoirleach: I call Senator Fitzgerald on amendment No. 17.

Senator David Norris: I would like to register a protest. This is a complete nonsense and the ruling is a bad one. I ask that the Leas-Chathaoirleach take back to the Cathaoirleach a demand from this House that the CPP be convened to discuss these rulings-----

Senator Nicky McFadden: This is absolutely outrageous.

Senator David Norris: -----which are blatantly absurd.

An Leas-Chathaoirleach: The ruling has been made in accordance with Standing Orders, a document drafted by all Members of this House.

Senator Nicky McFadden: On a point of order, amendment No. 16 is the crux of the whole debate we are having today.

An Leas-Chathaoirleach: Senator McFadden-----

Senator Nicky McFadden: We are speaking about issues concerning mental health, the needs of individuals-----

An Leas-Chathaoirleach: Senator McFadden, the Cathaoirleach has ruled on the matter.

Senator Nicky McFadden: ------the Executive will provide for the provision of any service identified-----

An Leas-Chathaoirleach: Senator McFadden can deal with the matter under the section.

Senator Nicky McFadden: It is ridiculous.

An Leas-Chathaoirleach: The Cathaoirleach has deemed the amendment to be out of order. We are moving on to amendment No. 17.

Amendment No. 16 not moved.
Senator Frances Fitzgerald: I move amendment No. 17:

In page 14, between lines 25 and 26, to insert the following subsection:

“(13) The content of a care needs assessment report shall be provided to a nursing home in advance of the subject residing in and receiving care from said nursing home.”.
This is a straightforward amendment. This is good practice and is already incorporated into the code of practice for integrated discharge planning published by the HSE this year. That document states that patients being discharged should receive a seamless transition from one stage of care to the next. It makes the point that one service cannot work in isolation from another and that all stakeholders must accept their interdependency and must work together to ensure there are no gaps in services or duplication of effort.
It refers also to integrated discharge planning relying on knowledge being passed between the different service providers and states that family carers, general practitioners and other service providers should be contacted at least the day before discharge to confirm the patient is being discharged and to ensure that services are activated or reactivated as appropriate. It further states that upon discharge the patient should receive an information pack, a carer’s plan, medication record and so on and suggests that receipt of a referral must be tracked into a patients record within 24 hours of that referral.
All of this is extremely practical. It puts in place in the code of practice a system that will ensure that patients’ care needs are passed on efficiently between the different services used by the patient. For example, the details of an elderly person leaving hospital to go to a nursing home should be passed on. The amendment seeks to put into statutory form that the contents of a care needs assessment report shall be provided to a nursing home in advance of the subject residing in and receiving care from the said nursing home. As I stated, this is good practice. It is a good idea to include this in the legislation. It will ensure this happens automatically and that such matters are not left to the code of practice but are a requirement.

Senator Nicky McFadden: I support the amendment. It stands to reason that a database would be in situ . Where a person is moving from an acute hospital it is important that his or her medication and blood details, including their requirements, be available on an intranet within the HSE. I cannot understand why in respect of ordinary medicine this is not the case. Currently, individuals must outline their details to a doctor who must write a letter in respect of medication required and so on. It should be possible to transfer such information automatically from one facility to another.

Deputy Áine Brady: Section 7(13) provides for the content of a care needs assessment report to be provided to a nursing home with the prior consent of the subject of the assessment. I hope this clarifies the position and addresses Senators’ concerns.

Senator Frances Fitzgerald: I am suggesting that it should be obligatory practice that where a person is moving from one setting to another, the care needs assessment report should be forwarded to the place to which he or she is going. That makes sense. I am not sure the section referred to by the Minister deals adequately with this matter.

Deputy Áine Brady: I cannot accept the Senator’s amendment because it does not respect the rights of the individual being assessed. 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 a person’s health and well-being, and 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 in contravention of section 2(b) of the Data Protection Act 1988 as amended by the Data Protection (Amendment) Act 2003 in respect of the processing of sensitive data. Section 7(13) was introduced on Report Stage of the Bill in the Dáil at which time Deputy Reilly welcomed the introduction of this provision, noted that it addressed his concerns that care needs assessments could be shared with nursing homes and acknowledged the absolute need for prior consent.

Senator David Norris: The Minister of State has made the effective and humane point that one must reflect and respect the wishes of the patient who may well believe there is something untoward going on or that matters are being disclosed that they do not wish the matron of the nursing home or administrator to know about. While that is an issue that must be considered, what is the position in respect of those who are incapable of giving informed consent? It appears to me that no provision is made in the Bill to look after the interests of people who cannot give consent.
The current provision relates only to people who do give prior consent. It might well be particularly valuable for the nursing home to have access to the assessment in the case of somebody who is incapable of giving consent owing to intellectual disability, illness such as stroke, and so on. I believe this to be a case where it would be particularly valuable for the nursing home to have the care needs assessment report.
Perhaps the Minister of State will give an undertaking to re-examine the amendment which may require rewording to provide that while respecting the right of individuals to withhold consent we must consider situations wherein they are incapable of doing so and it is determined that it is in their best interests that the nursing home should have access to these documents.

Senator Rónán Mullen: I agree with Senator Norris. While I accept what the Minister of State said in regard to the issue of consent, that does not deal with the whole problem. It may be the case that there should be a requirement that the content of the care needs assessment report should be provided, subject to the consent of the person involved and to incorporate Senator Norris’s concerns by including, “subject to the consent of the care representative”.
There remains the separate issue that subject to that consent, there be a requirement as distinct from an option on the part of those who carry out the care needs assessment report, to provide the information to the relevant facility. In other words, it is a separate issue to consider moving from “may” to “shall”. We must ensure that the report is provided, subject to the consent of the person who is the subject of the report.
We are trying to reach a situation in which the care regime demonstrably addresses previously identified needs. Apart from the issue of consent from the person in need of long-term residential care or his or her care representative, it should be more than optional for those who provide care.

Senator Frances Fitzgerald: I thank the Minister of State for her response. She has clearly tried to address the issues raised on Committee Stage in the Dáil and I accept that consent is very important. It is interesting, however, that the code of practice for integrated discharge planning by the HSE, which is supported by Age Action and everyone else with an interest in this area, emphasises the need for sharing information between services. It is common sense that a care assessment should be passed on in the interest of the patient. As Senator Mullen noted, this should be done subject to consent. Perhaps the Minister of State will consider that on Report Stage, at which point we may table a new amendment.

Deputy Áine Brady: The new standards and regulations will require the assessment of an individual care plan for every resident in a nursing home from 1 July. In devising such a plan, the care needs assessment report will be required. Senator Mullen seeks to replace the word “may” with “shall” but it is contradictory to use “shall” in the context of consent. The care representative under section 21 or the specified person under section 47 can give prior consent to the nursing home.

Senator David Norris: From what the Minister of State says, my support for the original amendment is growing. She implies that the care plan depends on access to an assessment. It would be daft to allow a couple of bloody-minded patients to gum up the works. I am afraid to say that I am turning against human rights and becoming authoritarian in this regard. She agreed with Senator Fitzgerald that it is vital to have this information for the sake of patient welfare.
I know a little bit about awkward patients. I do not mind saying they sometimes waste public money, time and space because I know something about the way they behave. The overriding interest of the State is the welfare of the citizen. The issue should be reviewed before Report Stage, particularly if case histories can be found that would make us more sympathetic. People at this stage of their lives are in need of care and supervision. They may well be fractious but there is nothing to suggest that the reports would be disastrous for them. Exceptional circumstances would be required for the assessment not to be delivered.
The question of the State’s resources also arises because there could be considerable duplication of efforts. If the receiving team in the nursing home does not have access to the relevant information it would have to start from scratch, which is a waste of time, money and resources. I am not unsympathetic to the needs of elderly and difficult patients. There have been some difficult personalities in my families but I have been authoritatively told by close relatives that I will be worse than any of them when I am older. I look forward to that glorious day and to being as difficult as I possibly can be.

Senator Rónán Mullen: That seems strangely predictable.

Senator Nicky McFadden: The Senator could not be that wicked.

Senator David Norris: I will be wicked. The State should take a somewhat paternalistic role in this because there are occasions when, to cite Senator Mullen, Mammy and Daddy know best for Mammy and Daddy. Perhaps the Minister of State will consider framing the Bill so that material is not transferred except in exceptional circumstances in view of the additional burden created for the State and health care personnel by wasteful duplication. It may not be in the interest of patients to deny this other than in exceptional circumstances. The provision could be tweaked in that direction. The Minister of State has shown great sensitivity to the human rights of patients but we do not need to be overly politically correct.

Senator Rónán Mullen: I have no objection to the subjection of the report to consent but it is not contradictory to suggest that the word should be “shall” rather than “may” because the State should be required to provide a report irrespective of whether the subject of the care assessment or the specified person wishes to withhold consent. My concern is that the provision as it stands might let the State off the hook in terms of its obligation for providing carers with the information they need.

Deputy Áine Brady: As the assessment under the fair deal will be holistic, it will include details such as family circumstances and other matters that may not be appropriate for nursing homes to know. We will need to exercise discretion in this regard. The section allows aspects of a care needs assessment which are necessary for the purpose of individual care plans to be shared with the consent of the patient’s representative or the specified person.

Senator David Norris: I ask the Minister of State to reassure me that the specified person has the legal capacity to consent. The specified person organises applications, reviews and appeals for people without the capacity to deal with these matters. I do not see how they are empowered to consent to the dissemination of this information. Perhaps the Minister of State can indicate the provision in the Bill which enables a specified person to consent on behalf of somebody without capacity.

Deputy Áine Brady: Section 47 gives a specified person the authority to act on behalf of another.

Senator David Norris: I will read the section with interest and I thank the Minister of State for the clarification.

Senator Rónán Mullen: Even if the specified person consented to the dissemination of the report, the question remains of whether an obligation exists on the part of the authorities to provide a care needs assessment report. Assuming consent on the part of the subject of care or the specified person, is it the Minister of State’s intention to impose such an obligation? The word “may” suggests otherwise.

Deputy Áine Brady: I give a commitment that the Health Service Executive will share that assessment once the person has given consent.

Senator Rónán Mullen: Will the Minister consider, therefore, changing the word “may” to “shall”? Once it has been subjected to the issue of consent could she not do that?

Senator David Norris: The Minister has been extremely helpful in directing my attention to section 47, which I have read. There is nothing whatever in section 47 that gives the right to a specified person to provide consent. I will read it into the record because it states exactly what I said earlier. It states: ”Subject to subsections (2), (4) and (9) a specified person may act on behalf of another person in relation to any application, appeal or review under this Act”. There is a possibility that if a specified person purported to give consent in this instance based solely on section 47 it would be open to a challenge in the courts, if that is what the Minister is relying on, because the giving of consent on behalf of a third party is a very considerable power and it is not articulated in this paragraph. I bow to the Minister’s superior knowledge, temporarily, if she can flatten me with further information.

Deputy Áine Brady: The care needs assessment is part of the application.

Acting Chairman (Senator Cecilia Keaveney): How stands amendment No. 17?

Senator Frances Fitzgerald: I withdraw the amendment but I would like the Minister to come back on it on Report Stage if she can.

Amendment, by leave, withdrawn.
Question proposed: “That section 7 stand part of the Bill.”
Senator Frances Fitzgerald: We have discussed very important issues in this section on which we have not got full clarity. The question of the multidisciplinary team assessment is a critical one but it is not sufficiently addressed.
There was no specific amendment on referring to the mental health of the individual but the Minister might consider it.
On the naming of a social worker in regard to the multidisciplinary assessment, the word “multidisciplinary” is not used anywhere in terms of the care assessment. Senator Norris made that point. Why not use this Bill to define it, even if we do not have an addition in regard to that. Those points are well made.
I want to speak primarily about subsection (11). Will the Minister inform the House what precisely this means? Our entire discussion has been about the meaning of “care services” in the Bill and what exactly a person is entitled to for the 15%. Subsection (11) of this section states: “Where a care needs assessment is carried out, this shall not be construed as meaning that the Executive will provide or will arrange for the provision of any service identified in the assessment as being appropriate to meet the needs of the person or that the Executive has an obligation to provide or arrange for the provision of any such service”. Why does such a section need to be put into a Bill like this one? The whole Bill is about the State’s obligation to provide services for elderly people primarily in need of residential care and it outlines the financial provisions that would be needed. I refer to page 14, subsection (11).

Acting Chairman: Of section 7.

Senator Frances Fitzgerald: Yes.

Acting Chairman: Was it discussed earlier on the amendment?

Senator Frances Fitzgerald: No, it was not discussed but we are discussing the section and this subsection is in this section. The amendment I tabled was ruled out of order but I want to hear from the Minister the reason this section is in the Bill. It is reasonable, in discussing this section, to ask the Minister and her advisers for an explanation of subsection (11). What does it mean? Is it a type of general indemnity clause that the State does not have to provide anything? It seems strange to me. I do not understand why a Bill dealing with how the State will provide for people has a blanket declaration that the State, even if a care assessment is carried out of a person deemed to need care, does not have an obligation. Subsection (11) states: “Where a care needs assessment is carried out, this shall not be construed as meaning that the Executive will provide or will arrange for the provision of any service identified in the assessment”. It is a blanket get-out clause and I want to know the legal advice that states that is necessary. Was that contained in the disability legislation as well? Will the Minister contextualise the reason it is necessary to insert a paragraph that states that the Executive has no obligation to provide for any service, even though the whole Bill is about the way services are defined and the Government’s obligation to provide such services. That is the purpose of the entire Bill. I want an explanation from the Minister for the inclusion of this subsection in this section.

Acting Chairman: My understanding is that it was ruled out of order at the outset. The Senator can discuss the content of the section.

Senator Frances Fitzgerald: May I clarify that once I am discussing a section I can discuss any subsection-----

Acting Chairman: The content of it.

Senator Frances Fitzgerald: -----even though it has been ruled out of order as an amendment? That is the reason I raise it under this section. I want to know why it is included, what it means and if there is any precedent for inserting a subsection that states the State does not have to provide any services, even if the care assessment indicates that such a service is needed. What is the legal advice that states that must be put into this legislation?

Senator David Norris: I strongly support Senator Fitzgerald. This is the core of the issue. The fact that this is not rights based was referred to briefly earlier. This is the get-out cause but it was not put in by the Minister or her Department. We all know that. We know from where it came. This is the Department of Finance at it again, and it is extraordinary.
The Minister has correctly invoked humanity. No doubt there are people in the House who would invoke Christianity, the Christian response to the elderly and that society is judged by the way it treats its most vulnerable. We make an assessment of the needs and then say we might or might not cater for them, and the governing criterion will be financial. We assess the need and then say we will reserve the right to ignore it. That is astonishing. It calls into mind the parable from the Gospel: “I was sick, and you took care of me. I was in prison, and you visited me”, and then nothing was done. He knew he was sick and in pain in hospital but said, “That is just too bad”. We know about that but we will do nothing about it. That might be understandable in the financial circumstances we are in, but it is a great pity.
On this section, I ask the Minister to look again at the question of the capacity to give consent because I am not certain of it. I am not a lawyer and I believe the Minister, with all her intellectual distinction and charm, is not a member of the legal profession either. Her advisers may well be but perhaps the body language suggests they are not. It might be no harm to refer that section of the debate to the lawyers to determine if there is something in the question of consent.
Whatever else we might get some movement on, I do not believe we will get movement on subsection (11), the get-out clause, because we have had so many battles. Senator Fitzgerald is correct. This is the disability Bill all over again. We fought tough battles in a previous Seanad led, I acknowledge, by my colleague, Senator Joe O’Toole, to try to force it on to a rights based condition, but we failed. If we failed then, when there was, to mix a metaphor, air in the tyres of the Celtic tiger, it is very likely now that the Celtic tiger has sprung a leak, to use another mixed metaphor.

Senator Rónán Mullen: Would the Senator not say the tyres are gone a little soft?

Senator David Norris: I was trying to reproduce the eloquence of Senator O’Toole in his wonderful comment about the flat tyres of the economy, the lack of oil, the need to put water in the engine and so on, which reduced the newscasters on the RTE News to helpless laughter in the studio. I get the impression the Minister may refer this for further legal advice. 5 o’clock

Senator Nicky McFadden: I tried to raise this issue earlier because we were going round in circles and having a good discussion on what all in this Chamber believe in, namely, the holistic care of people. Then we read the Bill and find that the HSE, the Department of Finance and the Government are completely reneging on their responsibilities to look after the elderly. The Bill states: “Where a care needs assessment is carried out, this shall not be [there is no ambiguity here] construed as meaning that the Executive will provide or will arrange for the provision of any service”. What is the point of us discussing any of this if the Department has the right to do this? It is outrageous.

Senator Phil Prendergast: Hear, hear.

Acting Chairman: On that poignant note, as it is 5 p.m. I must ask that progress be reported.
Progress reported; Committee to sit again.

Nursing Homes Support Scheme Bill 2008: Committee Stage (Resumed).
An Leas-Chathaoirleach: Before we resume on section 7, I welcome Councillor Declan Flanagan to the Visitors Gallery.

SECTION 7.
Question again proposed: “That section 7 stand part of the Bill.”
Senator Frances Fitzgerald: I spoke on section 7 and I await the Minister of State’s response to the points made on amendment No. 11 to establish the general legal advice received.

Deputy Áine Brady: The amendment, which has been disallowed, proposes to delete subsection (11), which states that a care needs assessment shall not be construed as conferring an entitlement to services. The inclusion of the subsection is considered important by the Attorney General because it supports section 5, which stipulates that the scheme is resource capped. The resource cap is a key feature of the scheme and any amendment would have serious financial consequences. For that reason, I am not in a position to accept amendment No. 16.

Senator David Norris: I am surprised it is financial.

An Leas-Chathaoirleach: We are discussing the section.

Deputy Áine Brady: The response is the same.

An Leas-Chathaoirleach: Is the section agreed?

Senator Frances Fitzgerald: May I respond to the Minister?

An Leas-Chathaoirleach: On the section.

Senator Frances Fitzgerald: Will the Minister of State spell out the implications? Earlier I called on the Minister of State to do so, but it also arises in this section because we are discussing care assessment. Will the Minister inform the House of the Government’s understanding of resource capping and the meaning of it in the context of the Bill?

Senator Nicky McFadden: I refer to resource capping and, bearing in mind this would be 15% of people’s property and inheritance, it is extraordinary the sentence is in place.

Deputy Áine Brady: The view of the Government is the scheme is resource capped. This year the cap is €55 million. It simply means the scheme is resource capped.

Senator Nicky McFadden: The legislation will be in place for a good deal longer than this year.

Deputy Áine Brady: That is correct but it will be capped every year and this year the cap is €55 million.

Senator Frances Fitzgerald: Will the Minister provide some information on the €55 million and how it will meet the need for the scheme and the need for places? What is the Department’s estimate of the total required or of the numbers currently requiring care who would be eligible for the scheme?

Deputy Áine Brady: I cannot provide the numbers requiring care. Under subhead B16, the total cap is €909 million, which will be reviewed every year. This year the cap is €55 million.

Senator Frances Fitzgerald: Will the Minister of State repeat that?

Deputy Áine Brady: Some €909 million is the total allocated under subhead B16. This year the cap is €55 million.

Senator Frances Fitzgerald: To what does the €909 million refer?

Deputy Áine Brady: Of the €909 million, €55 million is for the fair deal.

Senator Ivor Callely: Senator Fitzgerald asked about the breakdown of the number of people in receipt of care. Earlier I asked about the number of private and public beds. I do not know whether the Minister of State has such information to hand. If the mix is not available, will the Minister of State indicate the number of people in receipt of long-stay care who would qualify for this money?

Deputy Áine Brady: At present, it is estimated there are 23,000 people in long-term residential care in Ireland and of these, 7.5% are under 65 years of age. This indicates 21,275 people in long-term residential care are over 65 years of age, which equates to 4.6% of that population. The total number of beds in nursing homes, including long-stay and respite beds, is 29,000, of which 10,000 are public and 19,000 are private. The total number of long-stay beds in nursing homes is 25,985, including 8,235 public beds and 17,750 private beds. The total number of occupants in nursing homes is 23,000, of which 7,500 are public, an occupancy rate of 91%, and 15,500 are private, an occupancy rate of 86%. That is the number of beds at present.

Senator Ivor Callely: Did the Minister of State say there were 23,000 occupants and 29,000 long-stay beds?

Deputy Áine Brady: That is correct, and there are 29,000 long-stay and respite beds.

Senator Ivor Callely: To what do the figures of approximately 25,000, 8,000 and 17,000 refer?

Deputy Áine Brady: There are 25,985 long-stay beds and, of these, 8,235 are public and 17,750 are private.

Senator Ivor Callely: It was the case that there were three levels of subvention as well as enhanced subvention for private beds. Does this remain the position? My understanding is that it does not, but I seek clarity on the matter.

Deputy Áine Brady: There is only one level of subvention now.

Senator Ivor Callely: Is it currently in place?

Deputy Áine Brady: Yes, and it will continue.

Senator David Norris: I simply wanted to say, “I told you so”. It is perfectly obvious this has to do with the Department of Finance and it is because it is not rights-based legislation.

Question put.

The Committee divided: Tá, 23; Níl, 18.
Tá
Brady, Martin.
Butler, Larry.
Callely, Ivor.
Carty, John.
Cassidy, Donie.
Corrigan, Maria.
Daly, Mark.
Feeney, Geraldine.
Hanafin, John.
Keaveney, Cecilia.
Leyden, Terry.
MacSharry, Marc.
Ó Domhnaill, Brian.
Ó Murchú, Labhrás.
O’Brien, Francis.
O’Donovan, Denis.
O’Malley, Fiona.
O’Sullivan, Ned.
Ormonde, Ann.
Phelan, Kieran.
Walsh, Jim.
White, Mary M.
Wilson, Diarmuid.

Níl
Bradford, Paul.
Burke, Paddy.
Buttimer, Jerry.
Cannon, Ciaran.
Coffey, Paudie.
Coghlan, Paul.
Cummins, Maurice.
Donohoe, Paschal.
Fitzgerald, Frances.
Healy Eames, Fidelma.
McFadden, Nicky.
Mullen, Rónán.
Norris, David.
O’Reilly, Joe.
O’Toole, Joe.
Regan, Eugene.
Ross, Shane.
Ryan, Brendan.
Tellers: Tá, Senators Labhrás Ó Murchú and Diarmuid Wilson; Níl, Senators Maurice Cummins and Nicky McFadden.
Question declared carried.

Sections 8 and 9 agreed to.
SECTION 10.
An Leas-Chathaoirleach: Amendments Nos. 18, 19 and 27 to 29, inclusive, are related and may be discussed together. Is that agreed? Agreed.

Senator Frances Fitzgerald: I move amendment No. 18:

In page 16, subsection (1), line 3, to delete “a suitable person” and substitute “an independent third party”.
The Bill gives very little scope for an independent review by a third party. The phrase “suitable person” occurs in the Bill and I propose that it be substituted with the words “an independent third party”. The Bill should allow an independent third party to be involved in the assessment of means. The Bill allows the HSE to seek an assessment of means, which would be conducted by a suitable person of the HSE’s choice. In establishing the market value of any item, the HSE is not bound by a valuation accompanying an application for State support but is empowered to select a suitable person to conduct the valuation.
A number of issues arise in relation to the assessment of financial means. It is not clear what is meant by “suitable person”. Will the Minister of State clarify what is meant by this very wide term? Will it be further defined in regulation or will it be left as broad as it is? Will the means test be carried out by the HSE, State officials or an independent third party?
If there is a discrepancy between the market value of an asset established by the HSE and that submitted with an application for support, the HSE is not bound by the valuation submitted with the application. Such a disparity could have significant implications for the applicant or the State. I will make further points as the debate on this section proceeds. The key issue is the need for the involvement of an independent third party in the assessment of means. What is meant by “suitable person” and will it be defined further?

Senator David Norris: Amendments Nos. 28 and 29 refer to section 30. It is essential that a person carrying out a review of care needs or of financial assessments is independent. The phrase used in the Bill is “suitable person”. The Minister of State may agree that in order to be suitable a person should be independent. It is not a great leap of the imagination, or of a draftsperson’s pen, to include the phrase about independence. I support Senator Fitzgerald and I urge the acceptance of my amendments to Part 7, section 30, which deal with reviews and appeals. It is important that any person carrying out a review is independent.

Senator Ivor Callely: The Minister of State is probably aware that the families of people in long-stay care can come under immense pressure with regard to the level of subvention being paid. Section 30(7) states that a person other than the Executive may not request a review of a determination relating to a financial assessment unless 12 months have elapsed since the date of the initial financial assessment. People’s circumstances can change rapidly. For example, a person who is currently dependent on a rental income might find his or her income changing by the quarter. Indeed, in certain instances there could be default in payment of the rent. How quickly can an issue of that nature be addressed in the context of the assessment?
I am aware interested bodies have made submissions. I am happy to work with bodies such as Nursing Homes Ireland and other groups. Has the Minister consulted them or is there a user group to feed information to the Minister on the user aspects of the legislation? The user groups could be a soundboard on the legislation.

Senator Nicky McFadden: I support the amendments. It is important to have people who are independent of the Executive. That is the bottom line. They are people who would not have a vested interest. Given that old people are vulnerable and, perhaps, have assets, it is crucial there is somebody involved who is independent.

Deputy Áine Brady: Amendment No. 18 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 be provided 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 some preliminary training for the new scheme, having to be redeployed by the HSE. In short, we would be failing to utilise efficiently existing administrative resources while simultaneously funding additional administrative posts, albeit through a third party organisation.
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 and data protection-confidentiality for applicants to the scheme. To whom, for example, will the individual complain if an application is lost or mishandled? In addition, the HSE is subject to the scrutiny of the Ombudsman in terms of the requirement to follow faithfully all procedures set down in statute. With an independent third party, this layer of protection would be closed off to applicants. For these reasons, I cannot accept the amendment.
Similarly, amendments Nos. 28 and 29 propose that reviews should be undertaken by an independent third party, while amendment No. 27 further proposes this third party should be appointed by HIQA. As already stated, an independent third party would have to be financed. It would require a dedicated budget and would effectively duplicate the administrative work of the HSE relating to assessments. Given that reviews are undertaken on the same basis as assessments, such an inefficient use of resources cannot be justified. The governance and data protection issues which I outlined earlier also apply to reviews undertaken by an independent third party. This is because a body undertaking reviews will naturally need access to the person’s data and records. For these reasons, I cannot accept amendments Nos. 27, 28 and 29.
Amendment No. 19 proposes to remove the right of the HSE to appoint a suitable person to value assets and stipulates that any valuation must be undertaken by an independent third party. It should be noted that individuals will submit their valuations with their application 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 expense, which is imperative from the perspective of accountability and the HSE’s audit functions. Furthermore, this amendment would be problematic as the HSE will meet the costs 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 the amendment.
“Suitable” person as defined by the HSE, which is in section 3, is the person who has the necessary qualifications, training, experience or combination thereof to perform a function. For evaluations it will be a qualified auctioneer.
Senator Callely raised the review of a financial assessment. The review of a financial assessment can be undertaken earlier than 12 months if the HSE is satisfied that there has been a material change of circumstances. That is dealt with in the next section. With regard to consultation, the Minister for Health and Children and-or her officials met all the interest groups that requested meetings with her about this Bill. These included the social partners, Senior Citizens Parliament, the IFA, the ICMSA, Age Action Ireland, the National Federation of Pensioners Associations and other groups.

Senator Frances Fitzgerald: My concern is that it is a closed system. There appears to be no provision in the Bill for independent review. We propose that a financial review, for example, should be conducted by an independent third party so a fair and reliable estimate could be established in which both the applicant and the HSE could have faith. An important way of doing that is to insert independence into the scheme. That is the reason we propose these amendments. The HSE is a big organisation. It would be in the person’s interest to be able to access and use independent advice on the variety of issues that arise under this legislation, whether it is to estimate the market value of an item or to review it. There should be an opportunity to do that under the legislation. If it is not built in as part of the process, there should be some discretionary opportunity to access independent review to a greater extent than is available.

Senator Nicky McFadden: There is also the concept of the HSE having so much control over elderly people. These people will contribute 15% of their estate but nothing is outlined regarding what they will get for that money. Let us not forget that the HSE is responsible for many debacles under Professor Drumm. One matter that comes to mind is the €50 million he was short in his budget a couple of weeks ago. PPARS and Leas Cross are others. Now we intend to hand over 15% of people’s legacies and estates to the HSE. That organisation will make the final decision, with no independent person to oversee or review the situation. The people concerned are vulnerable in the first instance due to being sick, infirm or incapacitated. This course is really dangerous and will lead to legal situations in the long run.

Senator Ivor Callely: Perhaps the Minister will outline how the system will work from the time the person goes into care with regard to the level of contribution and the physical means whereby that contribution is made. We are aware of the current system and the subvention application form. We know how the assessment takes place in the nursing home section and about the appeals process, which is separate. I have every faith in the current system, which appears to work well.
I certainly have concerns about the HSE, and my position on a single organisation running services on a Twenty-six County basis will not change. I am not satisfied with the provision of services, for example, by private operators. We should not lose sight of this. We are talking not only of HSE services but also private operators who provide a fantastic array of services in certain instances where the statutory authorities have failed to provide them. I say that in light of what was just said.
I would like to know how the contribution will work, whether for a private or public bed, and, in the case of a need for a review of the structure to be put in place, how quickly this will be made. Most of us in this Chamber are aware of circumstances in which a family will make an approach, arising from a situation in which the level of payment coming from the HSE is insufficient to meet the need. This is usually in circumstances in which a person is in a private bed. Only because of the goodwill that exists with the private operators will the family be accommodated for many weeks and months. In certain instances an operator will be at a loss at the end if the assessment is not made favourably to meet the need of the individual at the level of charge being made. This happens time in time out and we wait for weeks for cases to go through the appeal process. I ask the Minister to outline how the scheme will work in comparison to the existing system.

Senator David Norris: I welcome the Minister of State’s engaging honesty in stating that her principal reason for not accepting the first amendment is that it would require a separate budget. If it creates a charge on the Exchequer that would have been a reason for ruling the amendment out of order. This further highlights the completely chaotic state of rulings on admissibility of amendments. It is daft. Some important amendments have been ruled out because they created a charge on the Exchequer but in this case the Minister of State informed us a separate budget was required. Some jesuitical fluting around might happen to justify this but it is perfectly obvious there is a lack of coherence and we must examine this point.
I was very interested that the Minister of State suggested an independent review would be inefficient. Perhaps so, but this comes from a Government which seems to believe in the free market, privatisation and the franchising out of matters. What is wrong with franchising out a bit of independent scrutiny?
The principle with regard to the need for a separate budget clearly means a charge on the Exchequer.

Deputy Áine Brady: I understand the Senator’s concerns regarding the independence of the various assessments. However, the scheme contains a number of important safeguards. Care needs assessments will be undertaken by health care professionals who will all be subject to their own scope of practice and their professions’ respective codes of ethics. A common summary assessment record has been developed and rolled out nationally for use within the care needs assessment process. This ensures a standardised basis for determining whether a person requires care services. The legislation is highly prescriptive with regard to the basis for undertaking financial assessments. The schedule even sets out a list of rules governing financial assessments.
This highly prescriptive approach within the legislation removes the scope for any discretion or inconsistency in the application of the financial assessment and therefore undermines the justification for an independent assessment body. Reviews must be carried out on the same basis as the original assessments and therefore the same prescriptive, consistent and unambiguous approach will apply. The legislation explicitly stipulates that a person must receive copies of the reports relating to all assessments or reviews. This is not provided for in the current subvention scheme and represents increased transparency.
A person can appeal to the Ombudsman if the HSE does not follow the procedure set down in the legislation for assessments and reviews. There is an appeal mechanism. Appeals officers must be independent in the performance of their functions. This is stated in section 32(1)(a). A panel of appeals officers will be established which must be approved by the Minister. The legislation also requires the appeals officer to consider every matter afresh, as if they were deciding the matter for the first time.
Senator Callely asked a very large question regarding how the scheme will work. I have a great deal of information, including-----

Senator David Norris: Send it to him.

Deputy Áine Brady: -----examples to show how the scheme will work. It is available on the website but I shall organise to have it forwarded to the Senator.
Anybody under the present subvention scheme who wishes to remain in that scheme can do so. People who are in a public facility at present do not have to sign up to the fair deal.

An Leas-Chathaoirleach: Is Senator Fitzgerald pressing the amendment?

Senator David Norris: I have a final comment. I do not believe the principle of independence has been understood fully. There is a slight narrowing of scope in this Bill that is unattractive. In her speech in the Dáil, the Minister, Deputy Harney, argued that the Bill was centred not on entitlement, but on eligibility. I have made the point that it is not a rights-based Bill but there are certain rights which should be retained and the right to an independent scrutiny of one’s position is one such. The person brought in to review should be independent because there can be a possible and very considerable conflict of interest between parties. The fact that the reviewer is employed by one of the concerned parties, namely, the HSE, calls into question the independence of that person.
It was suggested to me that the desire for independence is analogous to the request by the family in the Roscommon incest case who want an independent review with no input from the HSE into the inquiry. There appears to be a strong case for real independence. The HSE is to employ the person who will conduct the review in which it is one of the interested parties. That is my understanding although I might be misinterpreting it.
It is an important legal point. When I made certain political charges against a former Cathaoirleach of the Seanad I was dragged before a type of star chamber. I agreed to attend only on the basis that I could cross-examine, introduce evidence and witnesses and be legally represented. The then Cathaoirleach, Mr. Doherty, had to move aside from the Chair because he could not be judge and jury in his own case. We managed to bring that situation about which was quite difficult because it involved getting over the question of separation of power but the learned judge held that I was right on a number of instances, one being the matter of independence. Given that political charges had been made against the Cathaoirleach he had to move from the Chair because he could not be judge and jury in his own case under review. That was regarded as a fundamental element and strand in our democracy and I believe it relates to the issue of independence in the matter of review.

Deputy Áine Brady: I believe I answered Senator Norris’s question regarding the independence of the various assessments. They will be undertaken by health care professionals. There is a common summary assessment record. The schedule even sets out a set of rules governing financial assessment. In addition, the reviews must be carried out on the same basis as the original assessments. As I said, it is a very unambiguous approach and there is an appeals mechanism via the appeals officer and the Ombudsman.

Senator David Norris: There is still the question of being judge and jury in one’s own case.

An Leas-Chathaoirleach: Is amendment No. 18 being pressed?

Senator Frances Fitzgerald: No.

Amendment, by leave, withdrawn.
Amendment No. 19 not moved.
An Leas-Chathaoirleach: Amendments Nos. 20 and 21 are related and will be discussed together. Is that agreed? Agreed.

Senator David Norris: I move amendment No. 20:

In page 16, subsection (4), line 26, after “Act.” to insert the following:

“The percentage of the home owed to the Executive should never exceed fifteen per cent.”.
This issue is about the percentage value of the assets of the person going into the nursing home that should be distrained by the State. How is this estimated? This question of value arises from time to time and can be very unfair. I speak with some personal heat, because I inherited a small portfolio of shares from my late and beloved aunt and it took two and a half years to get the will out of probate. When I inherited the shares they were at the top of the market, but by the time I was able to sell them, they were at the bottom of the market. However, I had to pay the tax on the putative value of the shares at the top and got nothing like their value at the time I inherited them. I thought that grossly unfair, but I was able to sustain the loss and it did not matter a whole lot to me.
However, think of the situation of somebody who is in straitened financial circumstances. The situation may be slightly different, but the principle of fairness still applies. How and when is the value of a house estimated? For example, the property market is falling disastrously and rapidly. It may be decided that the value is estimated from the date of application, but then there may be a sudden catastrophic collapse in the value of property. Sometimes it can take a long time to get what one considers the proper value of the house and the person may hold out for as high a price as possible, but the value may continue to drop until, finally, the person is advised he or she must accept an offer. I believe people are entitled not to be caught in this trap. Therefore, my amendment seeks to establish the fairest valuation.
The language in this section is also a bit odd. I presume it refers to other assets besides the home. The language is curiously clinical, detached and cold when it describes the executive wishing to establish the estimated market value of any “item”. A house is a bit more than an item, but I am not sure how to get round the problem because the word may cover a situation where there are other assets to be disposed of. I accept there is difficulty in finding a user-friendly word, but “item” does seem clinical. I am not sure another word can be found to get round the difficulty. The principal point is that people should not suffer because of a variation in market value and we should address the question of the point at which a value is established.

On a Finance Bill some time ago, having considered the matter in the aftermath of the stinging effect of such procrastination when getting something out of probate, I suggested property should be valued at the market value at the nearest possible point to when the asset can be disposed of. I made that suggestion in terms of stocks and shares and suggest the Minister should consider a formula on those lines to ensure people get fair value. I am talking here about the discrepancy between the imagined or assessed value and the real, quantifiable value. People are vulnerable in this situation and I would not like to see them disadvantaged.

Senator Frances Fitzgerald: The Fine Gael amendment proposes that the percentage value accruing to the executive under this part should not exceed 15% of the estimated value established under section 10. This would be a protection for people and is in line with Government policy. As we have seen, there is huge volatility in the markets and in valuations and a person’s individual circumstances could fluctuate substantially within a short period and the person’s or family’s ability to pay could be seriously hindered.
If, for example, a house has lost value since its valuation when the individual entered a nursing home, will this section mean that upon probate the State could take more than 15% of the value of the home? In line with Government policy, we believe an individual should be guaranteed to pay no more than 15% of the value of his or her home back to the HSE. I would welcome a clarification from the Minister of State as to whether it is the intent to keep the percentage at 15%. Will there be ongoing valuations to ensure that remains the case or could we have a situation where, given current values, a person will be asked to pay what is, effectively, 20% or 30% of the value of the home?

Deputy Áine Brady: Amendments Nos. 20 and 21 both propose a different approach to that currently provided for within the Bill with regard to the cap on the principal residence. Amendment No. 20 states that the percentage of the family home to be repaid to the State should not exceed 15%. However, the amendment does not specify the market value on which this percentage is based. It could be equally argued that it is the value at the time of the original application or at the time of repayment of moneys owed. This renders the provision legally ambiguous and for this reason, but not only for this reason, I cannot agree to accept it.
Amendment No. 21 stipulates that the cap should stand at 15% of the market value of the principal residence at the time of the original application for State support. However, I consider that the current approach set out in the Bill is fairer and more favourable for applicants for the following reasons.
First, the cap is currently applied after the first three years of care. In the case of a single person, the contribution payable is a maximum of 5% per annum, resulting in a total capped contribution of 15% if the person spends three or more years in care. In the case of a couple, the maximum contribution payable by each member is 2.5% per annum, resulting in a total capped contribution of 7.5% Thus, the three-year cap acknowledges the situation of couples by limiting the contributions of each member to 7.5%. Moreover, by capping contributions by reference to a time period, it has been possible to extend the cap retrospectively so that many people currently in care can benefit from having their existing time in nursing home care taken into account.
Second, the legislation provides for a financial review. Thus, in a climate of declining property prices, such as we are currently experiencing, a person can avail of this mechanism and reduce the contribution payable on their principal residence to take account of the declining value of the property in year two or year three. A straightforward 15% cap based on the original valuation of the property would not achieve this.
Third, while the Bill provides for the cessation of contributions after the first three years of care, it also takes account of the time value of money, namely, inflation or deflation. This is fair, since the taxpayer is effectively offering an interest free loan under this scheme. It is also important from the perspective of financial sustainability, particularly given the very generous system of further deferral offered within the scheme. The system of further deferral could result in families deferring the repayment of contributions for 50 or 60 years if they wished. In such circumstances, it is only fair and just that the time value of money would be acknowledged. For all of these reasons, I do not propose to accept amendments Nos. 20 or 21.
On a point of further information, the person submits a valuation with his or her application for State support. This is the point of valuation. However, a person can seek a review of the valuation at any time. The cap is based on three years rather than a percentage, although the effect of that is that the contributions are capped at a maximum of 15%, or in the case of a couple 7.5%.

An Leas-Chathaoirleach: Is amendment No. 20 being pressed.

Senator David Norris: No. The Minister of State made an interesting case and seemed to accept the principle with regard to fluctuations in value, the point in which I was particularly interested. She has made a good case for the Bill as it stands, taking that into account.

Amendment, by leave, withdrawn.
Section 10 agreed to.
Amendment No. 21 not moved.
Sections 11 to 20, inclusive, agreed to.
SECTION 21.
An Leas-Chathaoirleach: Amendments Nos. 22, 23 and 24 are related and may be discussed together by agreement.

Senator David Norris: I move amendment No. 22:

In page 28, subsection (5), line 39, after “person” to insert the following:

“and particular regard to the expressed, verbal or written wishes of the person”.
The amendment relates to the important matter of taking into account the expressed wishes of a person, whether verbal or written. It refers specifically to subsection (5) which states: “If the court is satisfied that the relevant person concerned is incapable, for the time being, of making a decision to which this section applies, and the court determines that it is in the best interests of the relevant person concerned having regard to the circumstances of the person, the court may appoint a care representative in accordance with this section”. The amendment proposes to insert the words “having regard to the circumstances of the person” after the words “relevant person concerned” in the subsection. I am not certain the legislation covers or envisages a case in which, for example, a person going into care has made the equivalent of a living will in which he or she indicated a wish not to be resuscitated. Such a wish is perfectly reasonable and should be taken into account.
Amendment No. 25, which also addresses a substantial matter, proposes to insert the following new subsection:

“(44) (a) The assessment officer should be obliged to provide an education service where it is guaranteed a person with appropriate expertise would assist in the carrying out of the assessment.

(b) The assessment officer should ensure that the person carrying out an assessment would communicate with the applicant in a manner which facilitates appropriate participation, promotes dialogue about the nature of the assessment and that note is taken of the views (if any) of the applicant concerning his or her needs or preferences in relation to the provision of services to meet his or her needs.”.
I referred to the possibility of somebody having a stroke or suffering aphasia. People with the latter condition retain their logical capacity but the speech sector of the brain is damaged and they are not in complete control of their capacity to express themselves. In other words, they are trapped and while they know what they want, they have considerable difficulty in expressing it, which does not mean it is inexpressible. What is needed is professional assistance to ensure the intention and wish of the person is discovered and, if possible, acted upon. The person should be someone who is able to conduct a professional assessment, is knowledgeable, has experience of working with people with these types of conditions and is able to pursue any method or contact that would be able to draw forth the information sought. While some conditions, for instance, mental difficulties, stroke and so forth, may be untreatable and irreversible, their impact can be minimised by ensuring this type of professional person is available. The capacity, for example, of a person with short-term memory deficit to make a particular decision can be improved, as has been demonstrated, if trained in suitable techniques by an occupational therapist or physiotherapist. This is a classic practical example of how a person who apparently cannot make an informed decision can be assisted practically by a professional to make and communicate a decision.
Many communication difficulties arise from physical disabilities and can be overcome. This emphasises the importance of recognising the true basis of what is only an apparent incapacity. There should, therefore, be careful assessment of speech, language functioning, hearing and, if appropriate, sight. One must choose the best location, as has been noted, and it may be appropriate to have assessments done in the person’s home given that tension, worry, anxiety and stress can also be factors.
It is important that ancillary services are provided while the assessment is being made. The nursing and midwifery council’s guidance for the care of older people, which was published in 2009, suggests there may be physical barriers to communicating with older people. These include hearing loss, visual impairment, cognitive impairment, aphasia and loss of ability to speak or understand words. As it may take longer for a frail older person to process information, it is vital to ascertain who is the main carer and inspect the carer’s knowledge and experience of caring for the person concerned as the carer will be best able to explain how to communicate with the person. In other words, the carer will have had long experience of dealing with the person in question and will, therefore, know his or her quirks and how to understand the signals he or she is giving.
Many recent media reports have raised concerns about literacy and numeracy, specifically among adults. If one is trying to obtain information from people about mathematical concepts such as sums of money, percentages and so on, one must be certain they understand the issue and are able to provide rational answers. I have been provided with curious and worrying statistics in this regard. For example, research published in 2008 showed worrying numeracy trends. Less than 60% of those with a primary education or no education were able to give a correct answer to the question, “What is 10% of 1,000?” I failed arithmetic but even I know that 10% of 1,000 is 100. The Minister of State will confirm that is the case. Even a dodo like me could work out the answer to that question, whereas 60% of people with a primary education or little education could not do so. While it may be wonderful that 90% of those with third level education could answer the question, it is even more worrying that 10% of those with university degrees could not provide a correct answer when asked what is 10% of 1,000. These people have not had a stroke, suffered brain damage and so forth. It is important to examine the capacity to explain this issue to people and obtain a proper and appropriate response from them.
We must also take into account that difficulties are sometimes caused by inadequate education and information. People also become flustered under interrogation. For this reason, taking the advice of someone who knows the person is a useful suggestion. When people are cross-questioned on programmes such as “Mastermind”, “Today with Pat Kenny” or “Mooney”, they are often unable to answer simple questions. People in radioland ask what kind of eejits cannot answer simple questions. The problem is that they know the answer but find it impossible to give it because of stress.
We also ought to take into account that other, quite recent legislation contains these kind of provisions for providing an education service, for example, the Disability Act 2005, in which the assessment officer is obliged to provide an education service where it is guaranteed that a person with appropriate expertise could exist in the carrying out of these kinds of procedures. For that reason, it seems that the Bill, to which I have given a general welcome, is incomplete without a clause that copperfastens the capacity for people to have assisted decision making.

Senator Frances Fitzgerald: I support the amendment. I refer, for example, to the OECD report on older people and transitions which pointed out how difficult the move into long-term care can be for individuals, that they may have significant difficulties communicating their needs, as Senator Norris stated, and that they may need to be helped in this process by an appropriately trained person, for example, a speech and language therapist. The purpose of the amendment is to tailor the process of the capacity assessment to the individual’s need to demonstrate capacity successfully. It is important that there would be a provision such as this in the Bill. It would mean that the person’s needs would be met more effectively and that they would be catalogued and noted more effectively so that in terms of a court case or any review of the care, for example, the stated wishes of the individual would be clearly laid out at an early stage of the assessment. The more we can do that, the better.
It is really about human dignity and respect for the wishes of the individual. Clearly, if persons are somewhat incapacitated, whether physically or mentally, they need help, whether on the educational level of which Senator Norris spoke or on a capacity level such as where one might need a speech therapist. This amendment ensures such is the approach that would be adopted. I assume when the care assessment is done this would be incorporated to a degree but this spells it out in more detail.

Deputy Áine Brady: Amendment No. 22 obliges the courts to have regard to the wishes of the person who is the subject of the application when appointing a care representative. The care representative has a limited function under section 21 which extends only to matters relating to ancillary State support and the creation of a charge. However, the Senator’s proposal represents a further safeguard for the person and is consistent with the guiding principles contained in the proposed mental capacity legislation. As such, I accept this amendment in principle.
Amendments Nos. 23 and 24 seek to exclude explicitly from the categories of care representative any medical practitioner involved in the assessment of the person’s capacity. This is consistent with the overall policy intention of section 21 and I am happy to commit to considering its inclusion on Report Stage. I will, therefore, accept this amendment in principle.
Amendment No. 25 proposes to stipulate that an assessment officer must have sufficient expertise, must sufficiently communicate with the applicant and must note the applicant’s needs or preferences regarding the provision of services. On the final point, it should be highlighted that the assessment of capacity will relate only to the issue of ancillary State support and the placing of a charge against the person’s asset. This is the only aspect of a person’s capacity which is being examined. As such, a person’s power to state the preferences regarding services should not be affected by the care representative process. Moreover, the acknowledgement of a person’s preference regarding services is a much wider issue which extends beyond the scheme. The scheme is fundamentally a scheme of financial support. However, within the legislation this issue is acknowledged in section 5 which enshrines the principle of patient choice for all applicants.
On the issues of expertise and communication, I can assure the Senator that medical practitioners undertaking functional assessments of capacity will be bound by their own code of ethics and will ensure such assessments are undertaken in a thorough and robust manner. Moreover, the functional nature of the assessment requires that a person must be provided with all relevant information in a manner which is most easily accessible for him or her and that the person must be supported to communicate his or her decision in any way possible. For these reasons, amendment No. 25 is unnecessary. However, I can advise the House that the Department of Health and Children is working on guidance documentation which will support medical practitioners in undertaking assessments under section 21 and will highlight all of these important considerations associated with the functional test of capacity.

Senator David Norris: I thank the Minister of State for graciously accepting the principle. I am quite certain that she and her advisers will come up with a better wording than ours, but it is important to acknowledge that the Minister of State has clearly accepted two amendments and there will be ancillary material produced which will support the principle of the third amendment so that we are ad idem on the matters. I welcome that positive development.

Amendment, by leave, withdrawn.
Amendments Nos. 23 to 25, inclusive, not moved.
Section 21 agreed to.
Section 22 agreed to.
SECTION 23.
Question proposed: “That section 23 stand part of the Bill.”
Senator Ivor Callely: On notification of death or discharge of a person provided with financial support, I note that the nursing home proprietor is requested to give notice in writing to the executive not later than three working days after such event. While I think I know the answer, on what basis is this request being made?

Deputy Áine Brady: To cease the payment.

Senator Ivor Callely: A nursing home proprietor would provide a bed for perhaps three, five or seven years and we give him or her three days after the death. Has this been discussed with service providers and are they satisfied with a three-day cut-off? It strikes me as being a short period. I do not want to put the Minister of State on the spot but I would ask that she discuss the issue with the nursing home representatives to see whether there is need for a longer period. A three-day period strikes me as being short. Perhaps it could be a seven, ten or 21-day period.

Deputy Áine Brady: Under the current subvention scheme, they must give notice within 48 hours. Giving them a three-day period actually provides a longer period.

Senator Ivor Callely: I would just make the point.

Deputy Áine Brady: I thank the Senator. I will take that.

Senator Ivor Callely: As I stated, a bed may be occupied for three, five or seven years. There is also a bond between the proprietor of a nursing home and the people involved in the provision of the services to the individual, and there is a mourning process in which they are involved. On providing for this cutting of the tie three days later, we should be more sensitive to those providing the service and a three-day period strikes me as just a little short. I am not pushing anything here. I am just asking the Minister of State to tease it out a tiny bit.

Question put and agreed to.
Sections 24 to 27, inclusive, agreed to.
SECTION 28.
Question proposed: “That section 28 stand part of the Bill.”
Senator Ivor Callely: We are running through this quickly. Is there any part of these sections where we seek disclosure of information on the financial aspects of the nursing homes? There are no sections where we seek disclosure.

Senator Frances Fitzgerald: It is later.

Senator Ivor Callely: What section is it in? We are going through the sections very fast.

Senator David Norris: It is quite confusing.

Deputy Áine Brady: It is in sections 40 and 41.

Question put and agreed to.
Section 29 agreed to.
SECTION 30.
Senator David Norris: I move amendment No. 26:

In page 41, subsection (1), between lines 6 and 7, to insert the following:

“(b) where a person is assessed as in need by reason of categories outlined in section 7(6)(c) reviews will be carried out at a minimum of every 6 months and no later than every 12 months;”.
This is a simple amendment requiring that reviews be carried out at a minimum of every six months and not later than every 12 months where a person is assessed as being in need under the terms of the categories outlined in section 7(6)(c).

Deputy Áine Brady: I understand the intent of this amendment is to provide for situations where a person is in nursing home care but could return to their community if sufficient community based supports and services were in place. It stipulates that a review would be carried out every six months and no later than every 12 months to ascertain whether the person could move back to a community based setting. I can confirm that a person may seek such a review under section 30 as it currently stands. Moreover, I consider it in the person’s best interests to empower him or her to request this review should he or she wish to do so, rather than require a mandatory reassessment regardless of the person’s wishes.
It is worth highlighting that a care needs assessment could take anything up to three months. Accordingly, a person may not wish to undergo an assessment of their care needs every six months and may consider it intrusive or even have a distressing experience. Moreover, a person may be settled and content in a residential care setting. As such, he or she may experience a mandatory review, the effect of which is to establish whether he or she should be moved back to a community setting, as coercive or disrespectful of his or her dignity. For these reasons I cannot accept amendment No. 26, but I hope my clarification addresses the Senator’s underlying concern.

Senator Nicky McFadden: I understand what the Minister of State is saying. However, the other side of this is a situation where a person may have regressed and need a review, and be sent to an even higher dependency unit. It is something that also needs to be discussed. This is a very good amendment. An assessment or review is always a good thing.

Deputy Áine Brady: I said the review will be carried out no later than every 12 months and will work. If a review is carried out and a person needs a higher dependency unit that will be provided.

Acting Chairman (Senator Kieran Phelan): Is the amendment being pressed?

Senator David Norris: No.

Amendment, by leave, withdrawn.
Amendments Nos. 27 to 29, inclusive, not moved.
Section 30 agreed to.
Section 31 agreed to.
Amendments Nos. 30 and 31 not moved.
Section 32 agreed to.
Section 33 agreed to.
SECTION 34.
Senator David Norris: I move amendment No. 32:

In page 46, line 8, after “ailment” to insert the following:

“and there is an appropriate facility or service that could treat the individual.”.
This is to add in the phrase “and there is an appropriate facility or service that could treat the individual” which seems perfectly logical, practical and plain.

Deputy Áine Brady: Amendment No. 32 limits the power to charge people in acute beds who are no longer in need of acute care to situations where there is an appropriate facility or service that could treat the individual. The amendment is legally ambiguous as the interpretation of an appropriate facility or service could vary in the opinion of the HSE and the person or the person’s family.
For example, if a person continually rejects all available nursing home places as being unsuitable, does this mean he or she may remain in an acute setting indefinitely without being subject to charges? This legal ambiguity undermines the basic policy intention of section 34(3), which is to ensure the legislation does not create a perverse incentive to remain in an inappropriate acute setting. It is therefore not proposed to accept the amendment.

Senator David Norris: This also relates, as I understand it, to the problem of people in acute beds and the fact they are seen as bed blockers. It is a question of the most appropriate place for them to go.

Acting Chairman: Is the amendment being pressed?

Senator David Norris: Not at the moment, but I reserve the right to put table it on Report Stage.

Amendment, by leave, withdrawn.
Section 34 agreed to.
Sections 35 to 38, inclusive, agreed to.
SECTION 39.
Question proposed: “That section 39 stand part of the Bill.”
Senator Frances Fitzgerald: I want to ask the Minister of State a number of questions on section 39 concerning transitional provisions. I suggest existing residents need clarity regarding what is proposed under section 39. It is very important that existing residents are not disadvantaged under the Bill. Do the provisions contained in this section mean the subvention rates for existing residents will not increase? The measure will effectively force all existing residents in receipt of subvention into the scheme. It is important the Minister of State clarifies the matter.
If residents opt to remain in the subvention scheme, will annual increases be provided to ensure the shortfall between subvention and the cost of care does not escalate and financially disadvantage existing nursing home residents? It is a query on the transitional provisions, their effect on people who are currently in nursing homes, how the new scheme will impact on them and the cost they are paying. Perhaps the Minister of State could clarify that.

Deputy Áine Brady: Existing residents can stay as they are under the subvention, if they so wish. The Minister has given a commitment that no one will be made worse off. People already in public nursing homes can stay there in the same system they are currently. New admissions to public nursing homes will be different. Was that the question the Senator asked?

Senator Frances Fitzgerald: Yes. I also asked if increases will be given to people if the cost of care goes up and if they would not be financially disadvantaged. Is that allowed within the scheme?

Deputy Áine Brady: Not within the fair deal scheme.

Senator Frances Fitzgerald: What will happen to people who stay under this scheme? Will they not be effectively forced into the new scheme?

Deputy Áine Brady: The system will now be fairer across the board, in so far as nursing home costs will be made fairer and the inspection of nursing homes will take place by HIQA. The NTPF will bring fairer costs to nursing homes but there are no plans to increase the subvention.

Senator Frances Fitzgerald: It effectively means people who are already in nursing homes will have to move into the scheme because, assuming increased costs, the current subvention will not then cover the costs of their care. People will have to move into the scheme, given that the Minister of State said there will be no increases, even if costs go up.

Deputy Áine Brady: They have the option to remain in it and the Minister has given a commitment that no one will be made worse off. I cannot give the Senator any other commitment on subvention levels.

Senator Frances Fitzgerald: The Minister of State might return to the issue on Report Stage and see whether clarity can be provided on that aspect of the Bill.

Senator Ivor Callely: In light of the this section and the transitional arrangements, we are constantly referring to a two tier system and the anomalies that exist within it. Is this section accommodating anomalies? Of two people in very similar financial circumstances, could one who is currently in receipt of a public bed in a long stay institution without paying any contribution continue to enjoy that facility while the other, after the enactment of this Bill, is assessed as having a need and have to pay 15%?

Deputy Áine Brady: This section has been inserted to provide existing residents with a choice. Residents may choose to remain as they are or to opt into the fair deal scheme.

Senator Ivor Callely: It strikes me we may be accommodating anomalies and creating a two-tier system.

Deputy Áine Brady: The intention is to make the system fairer for everybody.

Senator Paul Bradford: I am not sure if the Minister of State answered my question in relation to a person’s entitlement to switch from the current scheme to the new scheme. I am sure I heard the Minister of State say in response to Senator Callely that they can do so. However, the section states: “a person in receipt of a relevant subvention immediately before the commencement of this subsection shall continue to be paid the relevant subvention until...”. The section provides that they “shall” rather than “may” continue to be paid. At what point can the switch or transfer occur when it is stated in the section that they “shall” continue to be paid the relevant subvention?

Deputy Áine Brady: People can apply to switch to the fair deal at any time. The option is theirs, it is a choice.

Senator Paul Bradford: Where is that particular option written into the legislation?

Deputy Áine Brady: It is in section 39(1)(b).

Senator Paul Bradford: Section 39(1)(b) states: ”the date from which by reason of the determination of the Executive under section 11(1) State support is to be paid in respect of the person”.

Senator Nicky McFadden: This is another cop-out.

Senator David Norris: It is the heat. We are all boiling in here. It is worse than a nursing home. At least, the television is not blaring.

Senator Paul Bradford: Does the person have to apply to transfer?

Deputy Áine Brady: Yes.

Senator Paul Bradford: The lodging of an application deems the person eligible to be considered under the new scheme.

Deputy Áine Brady: Yes.

Senator Ivor Callely: Perhaps the Minister of State will undertake to consider the matter which I have brought to her attention, namely, the anomalies that exist and will continue to exist under the new scheme. We are seeking to ensure fairness but the anomaly I have outlined exists. Perhaps the Minister of State will address the matter for Report Stage.

Question put and agreed to.
SECTION 40.
Acting Chairman: Amendments Nos. 33 and 34 are related and may be discussed together by agreement.

Senator Frances Fitzgerald: I move amendment No. 33:

In page 49, between lines 35 and 36, to insert the following subsection:

”(2) The Minister shall by regulations establish an arbitration scheme for resolving disputes which may arise under subsection (1).”.
I am suggesting here that the Minister should by regulation establish an arbitration system to resolve disputes which may arise under subsection (1). The Bill, as drafted, does not make provision for an arbitration process in the event that agreement cannot be reached between the Minister designate and the nursing home. For example, if the negotiator is the National Treatment Purchase Fund, NTPF, and it fails or refuses to agree to include a nursing home on the list of approved nursing homes, can anything be done? Will the Minister of State consider the inclusion of an arbitration mechanism? I am not sure how often this would arise but it could arise occasionally. There is a need for some mechanism in the interests of fairness and justice. This is evident in a number of areas already, including the construction industry and the NRA or the Department of Transport and the IFA. One can build in arbitration provision. I believe this to be a worthwhile amendment to accept to ensure access to justice by a person who believes not enough reasons have been given or who does not agree with the reasons they had not been accepted.
I believe that the system being established in this Bill is a closed system. We are not building in much opportunity for independent reviews, appeals or assessments. All the power is very much in-house. I do not believe enough opportunities are provided to go outside a fairly closed system of HSE assessments, which is not good for the individuals in care assessment and in nursing homes who could find themselves at a disadvantage owing to a lack of arbitration. Perhaps the Minister of State will consider this matter.

Senator David Norris: I support both amendments. However, in deference to Senator Mullen, I like his amendment which spells out much. The amendment seeks to delete in page 50, lines 31 to 35, ”(3) In performing its functions under paragraph (1)(ba) the Board may examine the records and accounts of an approved nursing home or of a nursing home the proprietor of which proposes to enter into arrangements under paragraph (1)(ba).” and to insert:

”(3) Where the Board has formed the reasonable view that the price at which long term residential care services is proposed to be provided by a particular nursing home is, all things being equal, materially in excess of the price at which long term residential care services are provided by other comparable nursing homes, the Board shall have the power to request, by notice in writing, that the said nursing home provide the Board with a written explanation of the calculation of the price at which long term residential care services is proposed to be provided by such nursing home. In the event that the Board is not satisfied with a written explanation received under the terms above it shall have the power to request that the Minister as soon as is practicable, by notice in writing to such nursing home, designate a person to examine the records and accounts of such nursing home and to subsequently report the findings of such examination to the Minister and to the nursing home in question. A refusal on the part of a nursing home to comply with any notice pursuant to this section shall be construed as a withdrawal on the part of such nursing home from negotiations.“.”.
I like the careful and legal way in which this amendment has been framed. In other words, the board must form a reasonable view that it is getting a bad deal, that the price is somehow inflated and that the services provided should not be valued at the level at which they are valued. In other words, an excessive charge is being made. The board will then have an opportunity to request a written statement or explanation for the price and the Minister, if the board is not satisfied, can designate somebody to examine the records and try to find out the truth. Where there is a refusal on the part of the nursing home to co-operate, this is construed as a withdrawal on its part from the negotiations. This appears to be a carefully thought out and accurately worded instrument to ensure neither the State nor the individual is defrauded by bad value. For that reason, I am happy to support it.

Senator Frances Fitzgerald: Section 41 provides that arrangements are made to publish the cost of approved nursing homes with no corresponding provision in respect of public nursing homes, which is an interesting point. What is the cost of public nursing homes and how do they compare? I ask the Minister of State to consider, in the interests of transparency, publication of the cost of public provision.
Section 41(b)(iii) which was introduced by the Minister on Committee Stage is at variance with the statements made by the Department of Health and Children in its publication, A Fairer Deal, the Nursing Home Care Support Scheme 2008, which states: “Prices around the country are already known to the HSE and the Department and can be reasonably estimated already.” It further states:

We are already aware of prices around the country and will not be obliged to reach agreement with any particular provider or nursing home if its prices or unreasonable. We will seek co-operation from the private nursing home organisation.
Perhaps the Minister of State will come back to us on Report Stage in regard to whether she thinks it appropriate for the NTPF, as a monopoly purchaser, to request information that is not in the public domain, specifically, commercially sensitive information in a competitive environment, an issue which Nursing Homes Ireland asked us to raise with the Minister of State. I am sure they raised the matter directly with the Minister of State. I am interested to hear the Minister of State’s view on the matter. I accept the question of commercial sensitivity arises. Without an arbitration process providers are put in a difficult situation. The NTPF also has the power to examine the records and accounts of such nursing homes and to subsequently report the finding of such examinations to the Minister and the nursing home in question. While I want to see transparency, I want to see it in the public as well as the private sector. I believe costs in respect of both should be published. We should be looking at the cost of public provision. In other words, how much is a bed in a public nursing home as compared with a bed in a private nursing home. This information would raise many interesting questions in terms of efficiencies and the provision of service.
If there is no access to arbitration, which is the point of this amendment, it would be heavy-handed to allow this in the absence of a corresponding provision in respect of publicly provided services. 9 o’clock

Senator Mary M. White: We should leave this amendment until Report Stage to deal with the issue. It would be wrong to divulge commercially sensitive information to a monopoly provider.

Senator Ivor Callely: I can understand why one would seek this type of disclosure when drafting legislation. Progress has been made over several years on achieving parity between the voluntary, private and public sectors in the provision of services. As a former health board member, I was aware of demands that the private and voluntary sectors should provide higher levels of service. I felt somewhat uncomfortable in this regard because it was not fair for a statutory authority to seek higher levels form others than it was prepared to provide itself. For this reason, I welcome that the inspection regime under the Health Information and Quality Authority, HIQA, will be on a level playing field.
I would like to believe the Minister of State, in her wisdom, will see the merit of what is being proposed. The amendment proposed by Senator Mullen deals with a purchaser who demands sensitive commercial information. Perhaps the Minister of State will clarify how the HSE will demand similar information from the public sector. It would be in the interests of this House to receive an indication on whether the substantive content of Senator Mullen’s amendment will be accommodated on Report Stage.

Senator David Norris: While we should listen with respect to Senator Mary White because she has practical experience in the world of business, I am not sure that her argument regarding commercially sensitive information holds much water. We are considering issues of comparability and it is reasonable that when charges imposed by a particular nursing home are “materially in excess of the price at which long term residential care services are provided by other comparable nursing homes the Board shall have the power” to do this, that and the other. It is reasonable to seek to determine whether a charge is excessive. Perhaps I am missing something but I do not see anything commercially sensitive about the matter. I accept, however, that what is sauce for the goose is sauce for the gander and that it would be wrong of the State to demand standards from the private sector which it is not prepared to meet itself. I am not convinced by the argument on commercial sensitivity because the amendment is clear that a materially excessive charge is anomalous within the marketplace rather than in a situation where there is one provider. The State should be entitled to inquire into the reasons for charges being out of line.

Deputy Áine Brady: Amendment No. 33 requires the Minister to provide an arbitration scheme for disputes between the National Treatment Purchase Fund, NTPF, and private nursing home owners. I reiterate that the scheme is voluntary. Private nursing homes can choose not to negotiate with the NTPF and they only participate in the scheme if they so wish.

Senator Frances Fitzgerald: That is not very likely.

Deputy Áine Brady: I do not consider that arbitration would serve a useful purpose in this context. Arbitration is a wonderful tool where disputes concern complex work projects or prolonged and detailed service agreements. However, the issue in question is the price charged for the purpose of the scheme. The resident will decide which nursing home to occupy, the quality of the service will be governed by the new standards and supervision will be a matter for the Health Information and Quality Authority, HIQA.
The goods and services which constitute long-term residential care services will be effectively circumscribed by the information laid before the Houses of the Oireachtas by the Minister for Health and Children. As such, the NTPF and the nursing homes would not negotiate on the volume, range or quality of service to be provided. They will merely negotiate on price. If a nursing home cannot demonstrate to the NTPF that it is offering value for money, I fail to see the value of arbitration. The only possible role of an arbitrator would be to undermine the position of the NTPF, which effectively means undermining the taxpayer.
The issue of administrative costs also arises. The NTPF will negotiate with 400 nursing homes and the amendment would enable each of these to seek arbitration. The potential costs associated with such a provision would be significant both in terms of additional staff and the process of arbitration.
In framing this legislation, the Government has been mindful to place the person at the centre of every policy decision and to safeguard and protect the individual both as care recipient and taxpayer. It is not in the interest of care recipients or taxpayers to accept an amendment which would have the effect of undermining the NTPF’s negotiating position before it commences its functions and diverting State funds away from the provision of financial support and towards an administrative procedure of questionable value. For these reasons I cannot accept amendment No. 33.
Amendment No. 34 limits the power of the NTPF to examine the records and accounts of approved nursing homes. This amendment is legally ambiguous because the interpretation of what is reasonable could differ between the NTPF and the private nursing home. It would be administratively cumbersome and time consuming because a number of written notices would be required from the NTPF, the nursing homes and the Minister. It would be necessary to designate separately an individual to examine the accounts of the nursing homes and prepare reports. The amendment excludes the board from receiving the final report and is unclear with regard to who determines the final outcome or agreed price. As such, it leaves a lacuna within legislation which would serve to undermine the entire scheme.
It should be noted that the existing provision states that the NTPF may examine the accounts of private nursing homes wishing to be part of the scheme. As such, the provision is enabling rather than prescriptive. It ensures the NTPF is legally supported in seeking prices for nursing home care which represent value for taxpayers’ money and can guard against price collusion and cartel behaviour. I do not propose to accept the amendment, therefore.

Senator Frances Fitzgerald: The implication of the Minister of State’s reply to amendment No. 33 is that an arbitration system should never be developed in case people decide to use it. The point of such a system, however, is that people can use it. That is the reason arbitration is used for labour relations and other areas. It is basic justice to allow arbitration in disputes. I do not think one should assume that all 400 nursing homes would rush to arbitration. Clearly, criteria would have to be met but this is a requirement in all systems of arbitration. The Minister does not accept the amendment on the basis that 400 nursing homes might go to arbitration. If the Minister took that approach no system would ever have arbitration within it and as we know, arbitration is a well defined mechanism that is used. Where there are varying views in industrial relations an arbitration system is set up. This is a basic measure that should be in the Bill.

Senator Ivor Callely: I asked the Minister about the assessment by the National Treatment Purchase Fund in regard to the provision of the public bed. We are bringing in legislation that we say will be better than what exists, fairer and so on but I have a serious ”bogey“ with this aspect. Regardless of what is said on the floor of this House, and I do not know how an official of the NTPF may use this measure with a nursing home proprietor, but subparagraph (iii) states: ”the Board may examine the records and accounts of an approved nursing home or of a nursing home the proprietor of which proposes to enter into arrangements under paragraph (1)(ba)”. If that measure goes into legislation it may or may not be used by an official of the National Treatment Purchase Fund. We do not know the context in which he or she may use it but we do know the public nursing home around the corner will not be subjected to the same scrutiny as the private operator. There is something wrong in that. I may misunderstand this section, and I hope that is the case, but it would be remiss of the Minister not to accept that there is a difficulty in this respect, that there is an unfairness and an imbalance and that it should be rectified in some form or at least further considered on Report Stage.

Senator Mary M. White: I concur with my colleague, Senator Callely, that it is wrong to have any potential interference when people are trying to do business to provide a much-needed service and then allow information to be left around the place. It is not business like, and we have a responsibility in this regard. People are setting up nursing homes and doing their best to provide a service and this is too much intervention by the State. It is an extreme, left wing political view of somebody trying to do business and very dangerous.

Deputy Áine Brady: I am saying that the nature of the issue to be negotiated would not benefit from an arbitration system. The NTPF will need to obtain value for money because if it does not, the financial sustainability of the overall scheme will be undermined.
The ability to view accounts is only an enabling provision. We understand that accounts are routinely offered to the NTPF when negotiating with private hospitals. The NTPF will treat all information as confidential and commercially sensitive. Costs will be published also for public nursing homes. The Health Service Executive is audited every year.

Senator Ivor Callely: I have a serious difficulty in that the Minister has not quite answered how the HSE will obtain a public bed and the records or accounts it may be able to assess of the public facility. I appreciate what the Minister is saying. Nobody, including nursing home proprietors, would be unwilling to sign up to value for money. That is not an issue but an issue arises in terms of inserting in legislation the wording I read into the record, which is creating an imbalance between the players in the marketplace. If I am reading it wrongly I would like to be corrected. If there is fairness in the marketplace I would be happy to see that wording in the legislation.

Senator Mary M. White: Hear, hear.

Senator Ivor Callely: There is nothing the nursing home proprietors would fear in terms of their accounts but it does not seem to be fair that the private nursing home around the corner is not required to meet the same criteria as the public operator. We have come a long way in the past decade in bringing parity to the provision of these auxiliary services and facilities but this appears to be a step backwards. All I ask the Minister to do is give us some indication that she is listening to what we are saying and that she will provide some level of clarity on this issue before Report Stage. That is not too much to ask. We are simply seeking clarity. An issue arises in this respect. Anybody with a level of understanding of the marketplace would be sensitive to what is being requested from only one sector of the total sector of service and therefore this aspect is causing a slight difficulty for people like myself. All we are asking the Minister to do is discuss this aspect with her officials and the other relevant players to determine if there is any other way to address it. If there is not she might come back on Report Stage and indicate this is the only way but I ask the Minister to try to ensure that the people we will be asking to sign up to this legislation, that is, the private nursing home proprietors, would be happy to have this wording in the legislation. That is important in terms of moving forward.

An Cathaoirleach: Does the Minister wish to comment on that or can it be looked at on Report Stage?

Deputy Áine Brady: The HSE will publish a list of its facilities and the cost of a bed in each facility. How that cost is arrived at will be laid before the Houses by way of the cost components under section 33. If the Senator wants to resubmit the amendment for further consideration on Report Stage it is up to him but I do not see how it can be clarified.

Senator Frances Fitzgerald: The Minister said there will be publication of the cost of a bed in public nursing homes. Section 41(1)(b)(ii) refers to arrangements to publish the cost of a bed in approved nursing homes but there is no corresponding provision in the legislation in respect of public nursing homes. Is that not correct?

Senator Ivor Callely: That is correct.

Senator Frances Fitzgerald: The Minister is saying that the cost of the public bed will be made known but she is making arrangements for the private nursing home to publish the cost. She is saying it will be provided but there is an imbalance in that one is in the legislation and the other is not, as things stand in the published legislation.

Deputy Áine Brady: The Minister is in a position to direct the HSE to publish a list of its facilities and the cost of the bed. How the cost is arrived at will come before the House by way of the cost components under section 33.

Senator Frances Fitzgerald: By way of what?

Deputy Áine Brady: By way of the cost components under section 33.

Senator Frances Fitzgerald: Would the Minister explain that?

Deputy Áine Brady: The Minister does not need this Bill to ask the HSE to publish a list of its facilities and the cost of a bed in each facility. Section 33 sets out the right to charge for public care. It states the charges may not exceed the costs. This means the costs must be publicly available.

Senator Frances Fitzgerald: In that case it makes perfect sense to put it into the legislation. In terms of relying on a Minister to ask the HSE to provide information, we have seen the difficulties that has led to in a range of areas in the past number of years where information has been very slow coming from the HSE. It has been very difficult to get accurate information and the health committee has frequently tried to get detailed information. I gave the example of where the Minister had directed that €25 million and €27 million be spent on implementation of A Vision for Change, but the €27 million disappeared down a black hole into other parts of the health service and was never spent on mental health services. With respect, the Minister having the ability to direct the HSE to publish is different from including it in legislation. There is an imbalance, as Senators on the other side of the House have pointed out.

Senator Ivor Callely: The Minister of State has indicated I can resubmit, but that is not what I asked her. I asked her to consult her departmental officials and indicate to us tonight that she would be prepared to reconsider this section. I will make a suggestion to her. I am aware the HSE’s various service providers provide annual reports which are normally laid before the House. The wording refers to “the records and accounts”. If a table is made available for public facilities, it should be exactly the same as that would be acceptable to the NTPF from the private operators, not the records and accounts. I know tables are provided by organisations such as Bru Caoimhin, St. Mary’s and St. Clare’s, but they are chalk and cheese in being different the records and accounts of a private operator. I am simply asking the Minister of State to tease out the issue when she leaves the House. We may or may not make progress. I am not asking her to give a commitment that she will come back to the House, but if she would accept there may be an opportunity to have parity and a level playing pitch between all the players involved - public, private, voluntary and charitable - by bringing forward a table, if we cannot come up with another solution.
With respect, I am concerned about how this may be interpreted by an official at a later stage. The content and context of what Members are contributing to the debate in this and the Lower House will not be in the record. What will be before a proprietor is that the NTPF will have the power to examine the records and accounts of the approved nursing home. All I am asking is that the Minister of State accept that there is an issue in this regard which all sides of the House have raised. There is a substantial amendment in the name of Senator Mullen and, while I am not saying it is fully correct, on reflection and following discussion with relevant stakeholders, we may be able to reach agreement to some degree, with the result that the position would then be fairly acceptable.

Senator David Norris: It is appropriate to examine these matters. Apart from anything else, this is State money.

Senator Ivor Callely: Nobody is denying that.

Senator David Norris: I know; I am just saying it. The Minister of State is defending the provision, as it stands, and seems to be subject to a degree of criticism from all sides. I have no difficulty with the board examining the accounts; it would be a scandal if it did not do so. Can one imagine what would happen if the newspapers were to get hold of this and found there was ridiculous overcharging and that we had been too paralysed to examine the matter? It is perfectly appropriate.

Senator Mary M. White: The market decides the price.

Senator David Norris: We should consider going along with Senator Mullen’s amendment.

An Cathaoirleach: Is the amendment being pressed?

Senator Ivor Callely: Before moving forward, is there any indication from the Minister of State which might be helpful?

Deputy Áine Brady: I will certainly give thought to what has been said, but I cannot give any commitment.

Amendment put and declared lost.
Question put: “That section 40 stand part of the Bill.”
The Committee divided: Tá, 22; Níl, 17.
Tá
Brady, Martin.
Butler, Larry.
Callely, Ivor.
Carty, John.
Cassidy, Donie.
Corrigan, Maria.
Daly, Mark.
Feeney, Geraldine.
Hanafin, John.
Keaveney, Cecilia.
Leyden, Terry.
MacSharry, Marc.
Ó Domhnaill, Brian.
O’Brien, Francis.
O’Donovan, Denis.
O’Malley, Fiona.
O’Sullivan, Ned.
Ormonde, Ann.
Phelan, Kieran.
Walsh, Jim.
White, Mary M.
Wilson, Diarmuid.
Níl
Bradford, Paul.
Burke, Paddy.
Buttimer, Jerry.
Cannon, Ciaran.
Coffey, Paudie.
Coghlan, Paul.
Cummins, Maurice.
Donohoe, Paschal.
Fitzgerald, Frances.
Healy Eames, Fidelma.
McFadden, Nicky.
Mullen, Rónán.
Norris, David.
O’Toole, Joe.
Regan, Eugene.
Ross, Shane.
Ryan, Brendan.

Tellers: Tá, Senators Fiona O’Malley and Diarmuid Wilson; Níl, Senators Maurice Cummins and Nicky McFadden.
Question declared carried.

Amendment No. 34 not moved.
Question, “That section 41 stand part of the Bill”, put and declared carried.
Sections 42 to 48, inclusive, agreed to.

SCHEDULE 1.
An Cathaoirleach: Amendment No. 35 is out of order as there is a potential charge on Revenue.

Amendment No. 35 not moved.
An Cathaoirleach: Amendments Nos. 36 and 37 are related and may be discussed together.

Senator Frances Fitzgerald: I move amendment No. 36:

In page 64, lines 38 to 47 and in page 65, lines 1 to 3, to delete paragraph 7.

Senator Paul Bradford: I support the amendments. When the Bill was published, the initial response of most people was a general and guarded welcome to the proposal as it was felt it would put in place a system of care with a system of payment which was fair, reasonable, transparent and affordable to a reasonable extent. However, the fine print of the Bill was studied and in advance of the debate in the other House the issue came to light about the capping rule whereby the three-year cap would apply only to a private residence. This regulation will have a negative effect and will impact on many people such as farming families and those with small businesses, who instead of having a repayment charge of 15%, 5% per annum for a maximum of three years, could instead have a repayment of 25% to 50% at the time of a bill finally issuing.
I appreciate that in response to the concerns and the arguments put forward, there was some degree of relief granted in the other House by way of a slight change in the technicalities of the scheme and it would provide that in a small number of cases where illness occurred in a sudden fashion, the three-year ruling would again apply. However, I am speaking about the majority of cases in so far as farming families and those with small businesses are concerned, who would not enjoy the relief offered by the Minister of State in the amendment put forward in the other House.
I am asking the Minister of State to reflect on the possibility of changing this section and the calculations as they are determined in the legislation to ensure that the 5% per annum with the maximum of 15% charge would apply in all cases. If this suggestion was not accepted, many people, farming families and those with small businesses in particular, could end up facing massive charges against their estate and this would be unfair. I hope the Minister of State will try to meet us some way on this issue.

Senator Frances Fitzgerald: Senator Bradford has pointed out the anomaly and injustice. The Bill as drafted has serious implications for farmers and small business owners. While nobody will end up paying more than the cost of care they receive, the deferred charge in the case of the principal private residence is capped at 15%, 5% for three years, but there is no cap on the deferred charge and other fixed assets such as land, farm buildings, commercial and investment property and small businesses which may not be hugely profitable. The situation could emerge where a person with a very valuable residence would be relatively undercharged. The Bill as drafted does not take into account the sustainability of farms or small businesses and it gives preferential status to principal private residences. This is a concern and there is also concern about the impact of the deferred payment on the viability of farms and small businesses.
The Minister of State introduced some changes on Report and Final Stages in the other House to the cap on farms and small businesses, but Fine Gael does not believe that these address the problem adequately. The Bill states that the three-year cap will not apply unless the person has suffered a sudden illness which caused the person to require care services, but there is no definition of what is considered to be a sudden illness. It may be that the illness is sudden but it may have been there for a long time and the person has only suddenly become aware of it. This issue is unclear in the Bill. It was a relatively late amendment from the Minister of State but I ask her to clarify that matter. The potential cost to people is significant.
The Bill requires the person to prove that a substantial part of the working day of the person requiring care services or his or her partner was regularly and consistently applied to farming the farm or carrying on the relevant business until the onset of the sudden illness or disability. This is a very strict criterion given the current situation in farming, with people sometimes working on farms and in the community. This is a very rigorous assessment.
We have concerns about the impact this will have, the cost to families and the viability of small farms and businesses, given the implications of the legislation and the lack of a cap on these assets.

Deputy Áine Brady: The Senator is proposing to delete paragraphs which I introduced on Report Stage in the Dáil. These paragraphs were introduced to address concerns expressed by a number of Deputies on both Second and Committee Stages about the treatment of farms in the Bill. The effect of the amendments is to extend the three-year cap to farms and businesses in certain circumstances. The amendments provide that a farm or business shall be taken into account within the financial assessment for three years only in the following circumstances: where the person has suffered a sudden illness or disability which causes him or her to require long-term residential care; where the person or his or her partner was actively engaged in the daily management of the farm or relevant business up to the time 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. The policy intention underpinning the paragraphs is to safeguard the financial sustainability of family farms and businesses by ensuring that contributions from such assets are capped and fully quantifiable. As such, removal of these paragraphs would be detrimental to applicants to the scheme. I wish to highlight that the measures have been welcomed by the Irish Farmers Association. We envisage the majority of people would have transferred their farms or businesses more than five years before applying for the scheme, especially given that farming representative groups support early succession of farms. In this case, the farm or business will not be taken into account and no contributions will be payable.
The new measures I introduced on Report Stage in the Dáil address the situation where a person would not have had the opportunity to transfer such assets. For these reasons, I cannot accept amendments Nos. 36 and 37.

Senator Paul Bradford: The Minister of State said farming organisations have welcomed her proposed changes. Members of the Oireachtas take note of what representative groups say. It is my clear understanding that farming organisations welcomed her Report Stage amendments as a very small step in the right direction. They do not deal with the concerns of the 98% of farming families or small business owners who will not fall ill suddenly and have to take up places in a residential nursing home.
What was the thinking behind not having a cap? The Bill has been welcomed on the basis that care must be paid for and that a reasonable balance is struck by putting a 5% per annum charge, with a maximum 15% possible charge, on a person’s private residence. Why was it decided that the 5% charge would be limitless as far as enterprise, business and agriculture was concerned? The Minister of State’s response on Report Stage in the Dáil was to alleviate, to a very small degree, the difficulties caused by the original wording. When Deputies and farming organisations pointed out this anomaly, there was a reasonable degree of acceptance by the Minister for Health and Children that the matter needed to be addressed. The Government’s response to the issue is inadequate. Nevertheless, I would like to know the thinking behind the idea of saying 5% of all assets could be charged with no limit on the size of the final bill.
I am not impressed by the suggestion that the threat of a huge nursing home charge will encourage farmers to transfer their farms at a younger age. While we all support the transfer of land to young farmers, everyone has a constitutional right to private property and we should not force people to transfer their assets. The Bill attempts to do that. Social welfare legislation uses the phrase, “for pension purposes”, with regard to the transfer of assets to qualify for a means-tested payment. An asset which was transferred in the previous two to three years is taken into account when means are assessed. This Bill attempts to chart a new direction. It gives every possible wrong signal and it should be reversed. The Report Stage amendments deal with a tiny fraction of what could become a substantial problem.
When discussing an earlier section, I referred to the significant number of people who are afraid to grow old because of the financial concerns associated with doing so. This section will cause farming families, shopkeepers, publicans and owners of small businesses to fear that by the time they pass on to their eternal reward their asset will have a 100% charge due to the State. That should not result from this legislation. I hope the Minister of State will examine this matter and try to make genuine progress as opposed to the baby step which was the Report Stage amendment.

Senator Frances Fitzgerald: I agree with Senator Bradford. The Government has taken a very small step to address the serious issue of farm families confronted with having to pay for nursing home care. Such families could be exposed to huge costs and forced to sell the family farm to pay for nursing home care. A person who spends three years in a nursing home costing €800 per week will pay more than €124,000, which is 80% of disposable income. Despite the Government’s amendment, the legislation has an unfair impact on such farming families or owners of small businesses. It could have serious implications for the ability of future generations to carry on the farming tradition.
Senator Bradford asked where the idea of not having a ceiling on charges on farming assets came from. Why was this approach taken to other assets when the limit on residences was clearly set at 15%? The Minister of State has not answered that question.
The question of transfer of ownership is of great relevance to farming families. The transfer of a family farm must have taken place at least five years before the time of the assessment of means to have it excluded from the assets for the purpose of the deferred charge. This presents difficulties. The Minister of State referred to the support of the IFA. That organisation’s chief economist, Mr. Con Lucey, showed that where the value of the farm asset is excluded, the individual contributes 33% of the total cost of care and the State contributes 67% but where the farm asset is included, the individual carries 81% of the cost of care and the State carries 19%. That is not equitable. The five-year transfer rule will have serious implications for families and for the transfer of farms to a younger generation.
The amendments introduced on Report Stage in the Dáil do not address this serious issue. They go only a small way towards dealing with it. The interpretation of the sudden illness measure is far from clear.

Deputy Áine Brady: The measures are based on a proposal submitted to the Minister for Health and Children by the IFA. The 5% is consistent with the current subvention scheme. The interdepartmental working group on long-term care considered that this was a fair amount to contribute to long-term care. Bearing in mind that it is capped at the cost of the care, rich people may pay less than 5%. This measure gives owners of farms or businesses who have not had an opportunity to transfer their property to someone else an opportunity to cover the cost of their care at a capped cost of 5%.
Sudden illness and disability is not defined because it would be impossible to take account of all possible individual situations. As such, any definition could seem to exclude people who might otherwise benefit from these important measures.

Senator Paul Bradford: I wish I could say I felt the Minister of State had a sympathetic understanding of our argument. I feel she does not appreciate or understand the issue. 10 o’clock
I repeat my question, which was also asked by Senator Fitzgerald. What is the thinking behind this proposal? Before any applicant comes to occupy a nursing home bed, a financial assessment will have been made. The multimillionaires, be they captains of industry, huge landowners or even lottery winners, will not come within the system anyway because they will have been excluded by virtue of the earlier financial assessment. Every person who applies for and receives State support under this scheme will have already passed a type of means test so the super wealthy will have been excluded. That is not our concern. We have in mind the so-called ordinary people - a phrase I dislike - who might be the local shopkeeper, publican or farmer. I cannot understand how this idea of the 5% per annum, capped at 15%, does not apply to these people.
While the Minister referred to the farming organisations’ request for particular changes, to which she acceded, she is absolutely aware that what the farming, business and other organisations sought was the application of the three-year rule. That is what we must try to bring about from the point of view of fairness and equity. Every applicant who is in receipt of support will have already jumped the hurdle with regard to the State’s view of their cash, asset value and means. However, those successful applicants will be divided into two categories, the people who have a principal private residence which could be worth any amount and the people whose kingdom might consist of the old-fashioned cottage acre, which bizarrely would result in the 15% limit applying to the cottage and no limit applying to the acre. There will be such anomalies while this clause and thinking apply. We are not talking about the big stud farm owners but a person who might have just a cottage acre or a tiny shop. The Minister must reflect on this. If the legislation is about fairness and a fair deal, this is not fair or a fair deal.

Deputy Áine Brady: If I accept these amendments, there will be no cap because the Members proposed no alternative. The majority of people entering nursing homes are between 70 and 80 years of age and, as such, the majority of farms and businesses will have been transferred. These new measures will support people who enter at a younger age.