‘Unacceptable disregard for the the law’ in relation to nursing home care
In an unprecedented move, this afternoon Ombudsman Emily O’Reily laid a report before the Houses of the Oireachtas entitled ‘Who cares – An investigation into the Right to Nursing Home Care in Ireland’ – this ‘own initiative report’ – the first of its kind by Ombudsman O’Reilly is damming of the Minister for Health, the department of health and the HSE on their failure to meet their obligation to provide nursing home care to older people.
The significance of this report cannot be underestimated. If we lived in normal times this report would call into question the viability of the position of the Minister of Health and perhaps even the government. It concludes the ‘State has failed over many years to provide people with their legal entitlement to nursing home care. This failure has caused confusion, suffering and hardship.. that this failure suggests a wider failure of our systems of government”.
The ombudsman and her 2 predecessors have received over 1,200 complaints since 1985 in relation to nursing home care and there is a consistency in the complaints into two main categories
1. the failure to provide nursing home care and the hardship caused by this especially for people who had to go into private nursing home care
2. the consistent failure of the state to clarify rights of people in relation to nursing home care.
According to the Ombudsman the 1970 health act makes it perfectly clear that the state is obliged to ‘inpatient care’ and this includes nursing home care to all citizens either free or at a minimum charge but it has failed to do so in the past and significantly that it continues to fail to do so even in the context of the new legislation on nursing home care (the so-called Fair Deal).
There are many and complicated issues in this report but in respect of nursing home care there are two particularly pertinent points, one which is retrospective and the other which is current.
Retrospectively, as the State failed to provide adequate numbers of public nursing home places, people were pushed into costly private places – the implication of the Ombudsman’s report is that these people and their families have wrongly incurred costs and may have a legal right to compensation for the hardship caused and the costs of the care.
The ombudsman does not make a specific recommendation that they should be compensated because of the current economic climate but she suggests the State acknowledges their failures in this area and she suggest that thought be given to providing some assistance to those who have suffered significant hardship.
Significantly, there are 300 cases before the courts at the moment in relation to such claims. The ombudsman is quite critical of herself for delaying this report but one of the reasons for the delay in doing this specific investigation was that the Dept of Health and HSE said it might interfere with these court proceedings.
Also the ombudsman thought these cases would be resolved by a court ruling but they have not been as they are picked off and settled on a case by case basis and there is a clear suggestion is that this is a strategy on behalf of the State to prevent any legal precedent being set.
Critically, the Ombudsman’s report is also relevant to the new Nursing Home Support Scheme – the so called Fair Deal. According to the Ombudsman’s interpretation, under the new Nursing Home Support Scheme people continue to have a right to nursing home care as a legal entitlement . This is significant for few reasons
1. the NHSS is budget limited, if that budget runs out people could use the 1970 act to ensure entitlement to nursing home care
2. And perhaps most significantly, under NHSS, people are only covered for bed, board and nursing, other costs are an add on, under the 1970 act, other costs such as occupational therapy and physiotherapy and wheel chairs would be covered – and this has significant financial implications for people currently in the NHSS
All these points are contested by the Minister and the Department of Health and the HSE . The Department totally disagrees with the Ombudsman, and quite a bit of the report is detailing the obstruction and opposition put up by the Department and the HSE to the Ombudsman carrying out her work.
The Department of Health claims she acting outside of her powers and that her actions constitute an interference with the States defence of legal action. While the Ombudsman clearly states that that their obstruction and the absence of their willingness to cooperate is in breach of their statutory duties under the Ombudsman’s act.
The ombudsman clearly states that people have a right to nursing home care, the department says people may be eligible but not entitled to such care, the ombudsman says such distinction is not valid and that the Department and HSE ‘are showing an unacceptable disregard for the law as it currently stands’.
This is a pretty unprecedented stand off between the Department of health, the minister, the government and the Ombudsman.
We saw the starting shots of this in the summer – the ombudsman does not go as far to say the government has interfered with her work but she draws attention to the ‘unprecedented intervention by Government’ in this case.
Ultimately the Ombudsman highlights the need for clarity in law and in policy in relation to nursing home care and the need for these to be coherent and consistent with each other but also clearly understandable to the public.
In the words of the ombudsman the report ‘arises from the fact that for more than 30 years, the question of what the State’s obligation is in providing nursing home care for the elderly has been fraught with confusion, uncertainty, inconsistency and not least controversy. When people at a vulnerable stage of their lives, who need expensive nursing home care do not know what is their legal entitlement to that care and where this situation continues without resolution for 30 years or more this has to constitute a major failing of government.’