Earlier Ombudsman Assessment of NHSS

In chapter 7 of her investigation report of November 2010, Who Cares? An Investigation into the Right to Nursing Home Care in Ireland, the Ombudsman dealt at considerable length with the NHSS. The Ombudsman summarised what she understood to be the Department’s understanding of the NHSS:

1. The NHSS Act creates a new legal category of service known as "long-term residential care services" (LTRCS).
2. The NHSS Act defines LTRCS as meaning "maintenance, health or personal care services, or any combination thereof"; according to the Department "the definition seeks to capture what is commonly understood as long-term nursing home care ...”
3. The intention of the NHSS Act (according to the Department) is to draw a clear distinction between LTRCS and "the broad range of services which may come within the term 'in-patient services'"; LTRCS "is now a stand-alone concept rather than a sub-set of in-patient services".
4. There is no legal right to be provided with LTRCS and there is no obligation on the State to provide such a service; but the State will, subject to the availability of resources and other conditions, contribute to the cost of the service. The Department stresses in particular that responsibility for providing nursing home care rests clearly with the individual: "In summary, then, each individual is liable to meet the full costs of their long-term residential care, although they can apply to the HSE for financial support ... in accordance with the terms of the Nursing Homes Support Scheme."
5. The HSE is both the administrator of the NHSS as well as being a LTRCS provider. From the individual’s perspective, the financial arrangements will be the same whether he or she is in a private or public nursing home.

The most striking aspect of the NHSS, as explained to the Ombudsman by the Department, was that it represents a new model of provision. For decades, the Department and successive Ministers supported a model based on State provision of long-term care where the State took responsibility for providing the service but sought a contribution from the individual or the family towards the costs (see Note 1 below).   The NHSS model is quite different. The model now is based on the principle that responsibility for long-term care rests primarily with the patient and/or family; the State may support the patient/family financially but this is subject to the availability of resources and to the individual satisfying a means test. Support under the NHSS is not guaranteed and the Scheme is not demand-led. If demand outstrips the availability of resources then the applicant may be placed on a waiting list until such time as resources become available (see Note 2 below). There is no legal entitlement to financial support.

The Ombudsman, in the Who Cares? Report, summarised her conclusions regarding the NHSS Act as follows:

• in practical terms, it represents an improvement for many older people and their families;
• it appears not to take reasonable account of the needs of families where there is a mortgage to be paid and ordinary household expenses to be met (see point 3 in next chapter of this submission);
• it is not at all apparent that the creation of the new category of service (LTRCS) modifies the existing definition of in-patient services; if the Oireachtas had intended to change the definition of in-patient services, it would have done so explicitly;
• it does not affect the right to in-patient services of those requiring long-stay care whose needs are greater than those captured in the definition of LTRCS;
• it does not deal, one way or the other, with the issue of whether the right to in-patient services is a legally enforceable right;
• it is a poorly drafted Act which fails to meet any reasonable standard of clarity and is unlikely to be comprehensible to the average citizen or, indeed, even to the "reasonably well-educated layperson";
• after less than a year of its operation, there are worrying indications that the NHSS Act is being applied in a minimalist manner which may, ultimately, be found to be incorrect;
• in the longer term, given both its drafting and the manner of its implementation to date, it may well lead to additional litigation;
• it does not resolve the issues at the heart of the Who Cares? Report (that is, whether there is an enforceable obligation on the HSE to provide in-patient services).

The Ombudsman also drew attention to the fact that, if the Department is correct in its analysis of the legislation, the HSE could choose not to provide nursing home services at all and leave this area of service to the private and voluntary providers. Indeed, since the publication of the Who Cares? Report in November 2010, there has been a continuation of the trend whereby the involvement of the HSE in providing long-stay care places has been in decline in favour of increasing provision by the private, commercial sector (see Note 3 below).

The Ombudsman takes the view that, whatever arrangements are made to provide long-term residential care for elderly people, these arrangements should reflect a policy which has been enunciated clearly in public. As matters stand, in the case of the NHSS it is more a case of inferring a policy from the Scheme rather than the Scheme reflecting an established policy.

Note 1

The State also paid subventions to those who chose private nursing home care and to those who had no option but to avail of private care because of the scarcity of public nursing home beds

Note 2

This has already happened, most significantly in the first half of 2011.

Note 3

The HSE National Service Plan 2012 envisages the closure of “a minimum of 555 public beds” in Community Nursing Units during 2012