Date released: 17.11.2010
The Ombudsman Report, Who Cares? An Investigation into the Right to Nursing Home Care in Ireland, was the subject of a Dáil Motion yesterday evening (16 November 2010); debate on this motion is to be completed this evening (17 November 2010). In the course of yesterday evening's debate, the Minister for Health and Children was critical both of the conduct of the Ombudsman's investigation and of the content of the report. These criticisms were, in most instances, raised already by the Minister and her Department in the course of the investigation and the report itself (including the correspondence published in conjunction with its publication) sets out the Ombudsman's position in relation to them.
Given that her report is a substantial one, and for the benefit of the members of the Dáil and Seanad, the Ombudsman is now setting out the responses to these criticisms already contained in the report itself and in the related published correspondence. The page references below are references to the relevant page of the report.
1. Criticism - the Ombudsman is investigating the conduct of litigation by the State and to do so is beyond her powers. The Ombudsman's requirement to be provided with material relating to the litigation is thus outside her powers.
Report says:
(a) "In subsequent correspondence (letter to Department of 25 September 2009), the Ombudsman clarified that the actions being investigated did not include the Department’s handling of the litigation concerning the right to be provided with in-patient services; rather, what was being investigated was the actions of the Department of Health and Children, of the Health Service Executive, and of some of the non-HSE public hospitals in providing for patients who are found to require in-patient services on a long-term basis. However, she also clarified that information on how the litigation was being conducted was relevant to the investigation and, thus, she was seeking to be provided with information and documentation regarding the conduct of the litigation." (page 12 - note 7)
(b) "This present investigation does not extend to include the manner in which the Department and the HSE have been handling this litigation; and the Ombudsman, accordingly, will not be making any specific findings or recommendations in relation to how these public agencies have conducted the litigation. However, any consideration of how the Department and the health boards (HSE) have been dealing with the issue of long-stay nursing home care must, inevitably, reflect the fact that this litigation exists. In fact, the key legal issue arising in this investigation - whether section 52 of the Health Act 1970 creates an enforceable right to in-patient services (including nursing home care) - is one likely to be settled definitively by the Courts in the event that any of the individual actions proceeds to hearing.
The Ombudsman was reluctant to undertake an investigation in this area on the assumption that this key legal issue would be resolved through the Courts. In the event, more than five years have gone by and the matter has not yet gone to hearing in the Courts. In these circumstances, it is reasonable to have regard to the existence of this litigation in the wider context of this present investigation." (Page 109)
(c) " ... the Ombudsman is not investigating the Department's handling of the litigation concerning the right to be provided with in-patient services. This is clear from my comments above... . In investigating an action, the Ombudsman is entitled to require the provision of any material which, in her opinion, is relevant to the investigation. This will very often include material which, while not bearing directly on the action under investigation, is nevertheless of relevance to the investigation. Furthermore, the right to require the provision of material under section 7 includes the provision of material concerning actions which, in themselves, may not be subject to investigation by the Ombudsman.
In this context, it is of no great consequence whether or not the conduct of litigation by the Department constitutes an "action taken in the performance of administrative functions". As it happens, the Ombudsman is clear that a public body's handling of litigation is an action "taken in the performance of administrative functions". More importantly, though, in this present investigation the Ombudsman has formed the opinion that material concerning the litigation is relevant to the investigation and that, under section 7 of the Ombudsman Act 1980, she requires provision of this material by the HSE and by the Department." (Ombudsman letter to Department, 25 September 2009)
2. Criticism - many of the "actions" investigated in this report are not actions "taken in the performance of administrative functions" and, thus, are not open to investigation by the Ombudsman.
Report says:
(a) "The role of the Ombudsman is set out in the Ombudsman Act 1980. The Ombudsman may investigate any action taken by, or on behalf of, a body subject to her jurisdiction provided the action in question is one taken in the performance of administrative functions. Where the Ombudsman finds that the action has adversely affected a person, and that the action reflects maladministration, then she may recommend redress for the person concerned.
Taken at face value, the Department’s vision of what the Ombudsman may do is limited to the investigation of individual complaints, or groups of complaints, but focused always on the narrow issues of the specific cases. Furthermore, the Department proposes an understanding of the term taken in the performance of administrative functions as a narrower rather than a wider category. In effect, the Department’s vision of the Ombudsman’s Office is that it is fine to deal with specific cases but that to look beyond these cases, and to ask why problems recur or why promised amelioration has not come about, is beyond the jurisdiction of the Ombudsman. This view of the Ombudsman role is at odds with the reality of what public sector Ombudsman Offices around the world actually do; it is at odds also with what the Irish Ombudsman has been doing for many years. It is implicit in the Ombudsman model adopted by the Oireachtas in 1980 that the role involves far more than the investigation of individual complaints; though dealing with these complaints remains the core business and provides the basis for looking also at wider systemic or governance issues. That this role is envisaged by the Oireachtas is made clear by the provision which allows the Ombudsman to conduct investigations on her own initiative (see Note 3 to this chapter)." (Page 119)
(b) "An "own initiative" investigation, provided for at section 4(3) (b) of the Ombudsman Act 1980, is undertaken on the initiative of the Ombudsman herself rather than in response to a complaint from a specific complainant. The provision allows for an Ombudsman investigation of an "action", in the absence of a specific complainant, where "it appears to [her], having regard to all the circumstances, that an investigation under this section into the action would be warranted". While not dealing with a specific complaint or complainant, "own initiative" investigations are informed generally by complaints received. This was the case in the present instance." (Page 24, Note 2)
(c) "In its chapter on the Ombudsman in Administrative Law in Ireland (3rd edition 1998, pp.344 - 345) Hogan and Morgan express the view that the "requirement that the 'action ' be 'taken in the performance of administrative functions' is designed to exclude judicial or legislative decisions.” The actions of the HSE and of the Department addressed in this investigation cannot be described as either judicial or legislative. The fact that some of these actions may relate to judicial or legislative actions is of no consequence in this context." (Page 24, Note 5)
3. Criticism - that the Ombudsman failed to abide by fair procedure in that she failed to provide the Department with a complete version of the draft report prior to its making representations to her in relation to the proposed report.
Report says:
(a) "In the normal way with Ombudsman investigation reports, both the HSE and the Department were offered an opportunity to make representations to the Ombudsman before completion of the report. This procedure is specifically required under section 6(6) of the Ombudsman Act 1980 as well as being a requirement more generally under fair procedure. The Department and the HSE were provided with those portions of the draft report which might be regarded as containing material critical, or adverse to the interests, of these bodies. In fact, the material provided constituted the bulk of the report. Some of the content of the draft report was not provided on the basis that it did not constitute material of the kind which attracted a right of reply under fair procedure. In the event both bodies, while contending that they required access to the draft report in its entirety, made substantial submissions. Subsequently, following further correspondence on the matter, and in order to remove the basis for any claim of unfair procedure, the Ombudsman provided the Department with a copy of those portions of the draft report not provided previously.
In finalising this report, the Ombudsman has had regard to the matters raised in their submissions by the two bodies. The positions and contentions of the two bodies on specific issues raised in the report are set out in the individual chapters, as appropriate." (Page 11)
4. Criticism - that the Ombudsman is inconsistent in how she expects the Department to respond when it has obtained legal advice: in the past the Ombudsman has been critical of the Department for failing to act on legal advice in relation to the imposition of illegal charges for long-stay care; in this report she appears to be critical of the Department for acting on the advice of the Attorney General (to the effect that this investigation was outside the powers of the Ombudsman).
Report says:
(a) "We know now that the actions of the Department and of the health boards were prompted by a very serious shortfall in health funding and by the need to retain a source of revenue by continuing the practice of charging all long-stay patients. This, however, does not excuse the dissembling of the Department and of the health boards in failing, over a twenty year period (1985 - 2005) of involvement with the Ombudsman, to reveal that their practice in this regard was contrary to legal advice. This is not to suggest that public authorities should allow important decisions to be made for them by legal advisers. Based on the Ombudsman’s experience, there may now be a tendency within the public health service to defer excessively to legal opinion but it is the case that a public body should be very careful in its rejection of legal advice, particularly where that advice is repeated over a period and has been provided by a number of different advisers." (Page 39 - emphasis added)
5. Criticism - by commenting on the investigation report in public, prior to its completion, the Ombudsman is open to the charge of prejudice and objective bias.
Report says:
(a) "You also raise the fact that the Ombudsman has commented in public on her forthcoming report to the Dáil and Seanad - at a Nursing Homes Ireland Conference last October and more recently at the MacGill Summer School - and you suggest that these comments "create the potential for perceptions of pre-judgment (or objective bias) on the part of the Ombudsman". In both instances, the Ombudsman's references to this present investigation were made in the course of lengthy and wide-ranging addresses. In so far as they reflected negatively on arrangements for the long-term care of the elderly over the past period of years, it is relevant to point out that the Ombudsman's comments simply reflected criticisms of past arrangements made in public by the Minister for Health & Children and by Ministers of State in her Department. For example, speaking in the Seanad on 10 June 2009 in the debate on the Nursing Home Support Scheme Bill, Minister of State, Áine Brady commented:
"In short, the present situation is unfair and unsustainable. It is deeply unfair that people of the same means face radically different costs for nursing home care, depending on where they live or whether their nursing home is public or private. It is deeply unfair that one person and his or her family with modest means could face very high bills to pay for care, while another might pay relatively little even though he or she had substantial means and assets. It is deeply unfair and unsettling that so many people and their families had no other option but to sell the family home to pay for care."
In so far as the Ombudsman commented on the present situation following the commencement of the Nursing Home Support Scheme Act, her comments were factual and based on information provided to her Office by the Department in the course of the preparation of the forthcoming report." (Ombudsman letter to Department, 6 August 2010)
6. Criticism - contrary to the Ombudsman's assertion that the language of the Nursing Homes Support Scheme Act 2009 is "impenetrable", that the Act in fact is very clear in its terms and its consequences.
Report says:
(a) "It is undeniable that much of the health legislation analysed and quoted in this report is quite impenetrable and fails to meet any reasonable test of being comprehensible to the ordinary person. These deficits have to do with the language used (for example, see the NHSS Act’s definition of LTRCS) and with the structure of the legislation (for example, see the amended versions of sections 52 and 53 of the Health Act 1970).
That the law should be written in language which is reasonably easily understood is a concern raised ten years ago, in 2000, by the Law Reform Commission; this concern is expressed on a few separate occasions in its report Statutory Drafting and Interpretation:
Plain Language and the Law: The principle of the Rule of Law presupposes that those who are affected by a law should be able to ascertain its meaning and effect. A system of language and law understood by only a few, where only a few have the ability to make authoritative statements about what is and is not permitted under the law, cedes power to those few. Lord Simon of Glaisdale wrote: ‘It is important to remember why our statutes should be framed in such a way as to be clearly comprehensible to those affected by them. It is an aspect of the Rule of Law. People who live under the Rule of Law are entitled to claim that the law should be intelligible. A society whose regulations are incomprehensible lives with the Rule of Lottery, not the Rule of Law." (Page 101 - 102)
(b) "The NHSS Act contains 48 sections and two schedules. It is, unfortunately, a complex piece of legislation. However, the thrust of the Act is that it provides for State financial support towards the costs of "care services". This latter term is defined as meaning "long-term residential care services". And this term, in turn, is defined at section 3 as follows:
" long-term residential care services ”—
(a) subject to paragraph (b), means—
(i) maintenance, health or personal care services, or any combination thereof, provided by or on behalf of the Executive to a person—
(I) whilst the person resides in and is maintained in a facility—
(A) that is publicly designated in writing by the Executive as a facility predominantly for the care of older people, which designation shall, subject to section 33(2), specify the health or personal care services to be provided at that facility, and
(B) in which nursing care is provided on the basis that at no time should there be less than one registered nurse present in the facility who is available to provide nursing care for the persons maintained in the facility, and
(II) subject to subsection (2), for—
(A) a period of not less than 30 consecutive days, or
(B) periods in the aggregate amounting to not less than 30 days within a period of 12 consecutive months, or
(ii) maintenance, health or personal care services, or any combination thereof, provided to a person whilst the person resides in and is maintained in an approved nursing home—
(I) in which nursing care is provided on the basis that at no time should there be less than one registered nurse present in the approved nursing home who is available to provide nursing care for the persons maintained in the approved nursing home, and
(II) subject to subsection (2), for—
(A) a period of not less than 30 consecutive days, or
(B) periods in the aggregate amounting to not less than 30 days within a period of 12 consecutive months,
(b) does not include—
(i) medically acute care and treatment in an acute hospital,
(ii) respite care,
(iii) rehabilitative care for—
(I) a period of less than 12 consecutive months, or
(II) periods in the aggregate amounting to less than 12 months within a period of 24 consecutive months, or
(iv) out-patient services made available pursuant to section of the Health Act 1970 ;" (Page 93 - 94)
7. Criticism - the Ombudsman is incorrect in her assertion that the Nursing Home Support Scheme Act 2009 does not alter the right to in-patient services (including nursing home care) provided for at section 52 of the Health Act 1970.
Report says:
(a) "While it may be clear what the Department intended to achieve with the NHSS Act 2009, and the related amendments to the Health Act 1970, it is much less certain that these intentions have been given proper statutory expression. The amendments to the Health Act 1970 are key to the Department’s assertion that LTRCS now constitutes a separate category of service and that, as a consequence, the in-patient services category no longer includes nursing home care as an integral element. One might reasonably expect that this would have been spelled out in the Dáil and Seanad, particularly in dealing with those provisions of the Bill which provided for amendments to the Health Act 1970. The Ombudsman’s Office has been unable to find any explicit elaboration on these provisions in the Oireachtas debates on the Bill. At Committee Stage, in both Houses, these provisions were characterised as technical and no elaboration was given. It is difficult to reconcile this characterisation with the far-reaching consequences of these amendments as claimed by the Department and described above. (Page 100 - 101)
8. Criticism - the Ombudsman's approach to the provision of health services envisages a system with no cap on resources and one in which services must be provided on demand and with no waiting lists.
Report says:
(a) "The Ombudsman takes no position on what, ideally, should be the level of State provision in any given health service area. Her concern is that the law should be clear and that State agencies should implement the law as it is rather than as they would wish it to be. Where resources to meet statutory duties are not available, the approach should be to recognise the difficulty and to seek to have the law amended to reflect practice. In the absence of amending legislation, and where services must be cut, maintaining mandatory services must take precedence over services which are discretionary." (Page 6)
(b) "The Department argues that acceptance of the Ombudsman's analysis of section 52 of the 1970 Act would involve having a demand-led hospital service, with no waiting lists and no cap on resources. This is a gross overstatement of the consequences of an acceptance of the Ombudsman's analysis. The Ombudsman acknowledges that section 52 of the Health Act 1970 places a very considerable burden on the State in providing for in-patient services. However, this does not amount to a "demand-led" service.
It is clear from the 1970 Act that there are certain services which health boards (HSE) must provide and there are other services which they may provide and, indeed, there are certain services which are not anticipated at all in the legislation of 40 years ago. Of the services which must be provided, there are some which self-evidently have to be provided at a particular point; these include, for example, midwifery and treating accident victims. Some other of the mandatory services need not necessarily be provided "on demand" and it may be acceptable to wait-list people on some kind of priority basis; these might include certain hospital procedures where delay carries no implications for outcome. Furthermore, as the law stands, in many instances there is little elaboration as to the extent of service required to be provided on a mandatory basis; though one might reasonably infer that services should meet some standard which is generally accepted (see comments of Finnegan P. at Chapter 5.1).
In the case of long-stay care for older people, and leaving aside the current situation following the enactment of the NHSS Act 2009, when the service needs to be provided will depend on an assessment of the particular person. In some cases, it will be reasonable to ask people to wait for a service, in other cases it will be self-evident that the need for care is immediate. The great defect in our arrangements over the period covered by this report is that, in the case of long-stay care, there has not been an adequate supply of long-stay places; nor has there been a rational and coherent system for assessing and prioritising patient placements in a way which meets the requirements of section 52 of the Health Act 1970. The absence of such an approach has meant that, rather than there being a problem of delay, the problem is in very many cases one of failure to provide a service." (Page 63 - 64)
9. Criticism - it is not the business of the Ombudsman to interpret legislation and, in doing so, she is acting outside of her powers.
Report says:
(a) "You express some concern that the Ombudsman's investigation may 'undermine or impinge upon the State's defence of ... litigation' arising from the non-provision of in-patient services. A related matter is the Department's position that 'the interpretation of statutory provisions ... [is] a matter for the Courts rather than one on which the Ombudsman should express a view'. The implication would seem to be that the Ombudsman's investigation might cause certain facts to be brought into the public domain, or draw attention to a particular legal analysis, which might prove helpful to the litigants in question. The suggestion is that the Ombudsman should not proceed with the investigation at this point because of the potential to undermine the State's defence of the litigation. This suggestion is at odds very fundamentally with the statutory role of the Ombudsman which is, acting independently, to investigate the actions of public bodies whether on foot of specific complaints or acting on her own initiative. The implication in the Department's suggestion is that the Ombudsman, in fulfilling her statutory role, should act in a manner which protects the interests of the HSE and the Department to the detriment of the interests of complainants and of the public more generally. Clearly, the Ombudsman cannot accept that this is a correct view of how she should perform her statutory role. As for the Department's position that the Ombudsman should not express any view on the interpretation of statutory provisions, the Ombudsman does not agree: virtually all complaints dealt with by the Ombudsman involve taking a view on how legislation should be interpreted." (Page 17 - quoting Ombudsman letter of 25 August 2009 to Department)
(b) [Chapter 4 refers to the Ombudsman statement in the aftermath of the Travers Report and makes the point that the legal analysis put forward over many years by the Ombudsman, in relation to charging long-stay patients, would (had it been acted upon) have saved the State very significant sums paid subsequently under the Health Repayment Scheme.]
“From the late 1980s onwards, the Ombudsman dealt frequently with complaints about the entitlement of medical card holders to long-stay hospital services. Many of these cases concerned elderly people receiving what is now being termed 'nursing home' care; some concerned people, not necessarily elderly, in long-stay care because of a psychiatric condition or some long-term debilitating illness. The complaints related to the fact that these patients were being charged despite the fact that they had medical cards and/or despite the fact that they had dependants. In many instances, the health board concerned would have revoked the medical card of the patient - though not on the basis of a proper and procedurally fair process. The Ombudsman's thinking on these cases was (a) that the type of care being provided constituted an "in-patient service"; (b) that such a service should be provided, as a matter of right and without charge, to medical card holders and to people without a medical card provided they had a dependant; and (c) that the practice of removing a medical card from a person, once hospitalised, was not tenable.
During those years, the Ombudsman drew attention to these matters by way of items in his Annual Report to the Oireachtas. Annual Reports for the years 1988, 1989, 1991, 1992 and 1994 dealt specifically with the issue. The matter was referred to as a related issue in the report 'Nursing Home Subventions' (January 2001) but it was something which the then Ombudsman very explicitly raised in his oral presentation to this Committee on 21 June 2001. Annual Reports for 2002 and 2003 again reported cases in which these matters figured. By any reckoning, this was an exhaustive effort to draw attention to practices which the Ombudsman believed to be invalid.
What we now know, arising from the Travers Report, is that throughout this extended period the Department and, to a lesser extent the health boards, had solid and uncontroverted evidence to support the position taken by the Ombudsman. Very regrettably, the Ombudsman was never made aware of this evidence.
Had the Ombudsman been aware that the Department had been provided, over successive years, with definitive legal advice on the matter, and been aware that the analysis he was offering was no more than that already provided to the Department by its own and health board legal advisers, he would have reported to the Oireachtas on the matter both more fully and more definitively. He would also have drawn the weight of evidence to this Committee's attention when he appeared before it on 21 June 2001. Furthermore, in dealing with complaints in this area, it is very likely that the Ombudsman would have completed investigations and made recommendations providing for appropriate redress. However, in a situation in which he did not know of this evidence, and despite the strength of the argument he was himself making, the Ombudsman stopped short of making recommendations in individual cases.
If it had been possible to provide the Oireachtas with a detailed analysis as outlined above, it could have ensured that the necessary legislative steps would have been taken either to validate the existing practice or to provide a valid legal alternative. Had the matter been resolved in 1991- 1992, when there were intensive discussions between the Department and the Ombudsman, a very substantial portion of the overpayments (now required to be refunded) would never have arisen.” (Page 40 - 41)
10. Criticism - the Ombudsman waited to launch her investigation until after the enactment of the Nursing Homes Support Scheme Act by which time whatever difficulties existed had been removed.
Report says:
(a) "For 25 years complaints to the Ombudsman have been coming in, year after year, from families encountering major problems in getting nursing home care for an elderly parent or relative no longer able to live at home. It is true that there are some areas of public administration which give rise, year in and year out, to complaint: entitlement to social welfare payments or to housing and farm grants are cases in point. But with these latter complaints the prevailing rules and regulations are relatively clear; and the issue for the Ombudsman is whether those rules and regulations have been applied fairly and correctly to the circumstances of the particular case. Complaints about nursing home care are quite different. In these cases there has been:
- continuing dispute as to what the law provides;
- a long history of failure to meet legal entitlements;
- the imposition of illegal charges;
- assessment of the means of family members where such assessment was illegal;
- major inconsistency across the country in the extent to which the right to public nursing home care has been met.
Above all, complainants have been telling the Ombudsman over these 25 years of their sense of impotence, frustration and distress and of the financial pressure they have endured arising from the manner in which they have been dealt with by the health boards, and more recently by the Health Service Executive (HSE). Nursing home complaints, clearly, are in a different league to Ombudsman complaints generally." (Page 7)
(b) "Ideally, this investigation should have been undertaken at an earlier point. However, two considerations persuaded the Ombudsman against an earlier investigation. The first is that, following publication of the 2001 Ombudsman Report Nursing Home Subventions the
Department indicated (in November 2001) its intention to promote new legislation in the Oireachtas which would clarify entitlement to nursing home care and put services on a clear and unambiguous footing. The Ombudsman took the Department at its word but, unfortunately, relevant legislation did not materialise until 2009 and it remains an open question as to whether it actually provides the clarity one would expect.
The second consideration influencing the Ombudsman’s decision was her expectation that the key legal point at issue - whether people have an enforceable legal right to be provided by the HSE with nursing home care would be decided by the Courts and that it seemed sensible to await that adjudication. [...] The question now arises as to whether the State agencies concerned have intentionally brought about a situation in which none of these cases has had an adjudication. The Ombudsman understands that some of these cases have been settled out of court and that these settlements involved some level of compensation, funded by the Exchequer, for the particular plaintiffs. In the circumstances, it is now reasonable to question whether, in fact, any of the cases will go to hearing and judgment. Against this background, the Ombudsman believes that the decision to postpone an investigation, and to await a ruling from the Courts, is no longer valid." (Page 8)
For queries relating to the Report contact:
Fintan Butler – Senior Investigator – 01 639 5650
Email: fintan_butler@ombudsman.gov.ie
Emer Doyle – Investigator – 01 639 5608
Email: emer_doyle@ombudsman.gov.ie
For media inquiries contact:
Dave Glynn - Head of Communications and Research
Tel: 01 639 5714/ 087 236 1884
email: david_glynn@ombudsman.gov.ie