Home  /  News  /  Speeches & Articles  /  2017
 

Contracts of Care for Nursing Home Residents: Issues for Policy and Practice

Speech by Ombudsman Peter Tyndall at Sage launch of discussion document

Thursday 12 October 2017

We are an aging society. It has been forecasted that the number of people over 65 years of age will double in the next few decades and the number of people over 85 years of age will treble. This is good news for us all and hopefully in living longer we will be able to lead fulfilled lives. However this also means that a growing number of older people will likely require long-term care.

What anyone would want for themselves or for their relative, as a resident in a nursing home is that their loved one is cherished, in a place that makes them feel at home, comfortable and protected but all the while honouring their civil rights and freedoms. One of the first steps in this process when entering a nursing home, be it a public or private setting, is to ensure that the contract of care, which is agreed between the resident and the nursing home provider, is amenable to achieving this aim.

Sage’s work in this area is timely and I would like to thank them for inviting me here today to launch their Discussion Document on Contracts of Care for Nursing Home Residents: Issues for Policy and Practice. In this document SAGE has looked at how contracts of care are currently structured and gives some practical information on how this contract could be restructured to allow for, what SAGE sees as a more transparent and equitable framework.  

Most of us would think very carefully before entering into any written contract especially if it involved the payment of a large portion of our personal income and assets. Unfortunately when an older person enters a nursing home circumstance often dictates that this might not be the case.

Entry into a nursing home is not necessarily planned. Many residents enter a nursing home straight from an acute hospital setting where it has become clear that their care needs are such that they require long-term residential care. In some instances there may be a time pressure involved to move a loved one from an acute setting into a residential setting. Whatever the case the decision to enter a nursing home, or for a loved one to be placed in a nursing home, is nearly always an emotional time concerning perhaps the loss of independence, or the realisation that a loved one can no longer live safely at home or can no longer be cared for safely at home.

From the experience of my Office it is clear that when a person enters a nursing home, often the overriding concerns are the availability of a nursing home place and the location of the nursing home itself, close to family and friends. It is a busy time with financial documents to be gathered and intricate forms to be filled out in order to apply for the Nursing Home Support Scheme.

Therefore despite the importance of the contract of care, the actual conditions outlined in the contract of care of the nursing home may not necessarily factor into the decision making process when selecting a suitable nursing home.

Whatever the circumstance it is vitally important to protect the legal rights of a resident in a nursing home and to be sure that no contract is signed without knowing what is contained in it.  It seems to me that often contracts are signed which have not been properly read or understood. Often it is the case that the resident is agreeing to be bound by terms of a contract which they have not read or may not have understood.

Yet the contract of care which a resident signs, or is signed on their behalf, is a vital legal document. It sets out the terms and conditions, and the rights and responsibilities of both parties.  It forms the basis under which the resident will reside in the nursing home. It therefore needs to deal fairly, transparently and comprehensively with the arrangements that will become part of the residents living arrangements. Residents and their family need to have a good understanding of its content and the implications.

We all know how legalistic and technical the language used in contracts can be.  Sage has identified the need to ensure that that an easily understandable version, a ‘plain English’ version of the contract be available, even an audio version.

Sage has also addressed the issue of a resident’s capacity to understand a contract especially where there may be cognitive impairment or dementia. It is important that if a resident has the functional capacity to understand a contract that the required assistance should be made available to assist their understanding.  Sage discusses the range of assistance that will be available to support such residents following the implementation, in part of the Assisted Decision Making (Capacity) Act 2015 and the establishment of the Decision Support Service.

It is clear that the overriding concern is that when a contract is signed the resident and/or their family, have had both the time and the assistance required to gain a good understanding of the contents of the contract and its implications for the resident.

My Office has for many years been able to accept complaints about public nursing homes and in August 2015 my remit was extended to cover the private nursing sector.  In 2016 my Office received 4 complaints about public nursing homes and 30 complaints about private nursing homes. This year to date, my office has received 45 complaints about private nursing homes which already represents a 50% increase in the number of complaints received in 2016.

The nursing home sector is a well-managed sector, and a sector that is well regulated by HIQA.  As you can see, the number of complaints, although increasing, is not large especially when you consider that there are 122 public nursing homes and 458 private and voluntary nursing homes providing accommodation for around 30,000 residents.

It is often the case that complaints about nursing homes are not submitted to my Office until after a resident has left the nursing home or has sadly passed away. However it must be remembered that when I receive a complaint about a nursing home the issues raised, whether about the care and treatment of a resident, poor communications or contract issues, most likely affect all the residents in that particular nursing home.  Equally if fault is found the measures taken by the nursing home to prevent a recurrence benefit all residents.

Sage has highlighted a number of issues in the discussion document that have come to my attention:

Additional Charges

The most obvious one is that of additional charges levied in a nursing home.  Nursing Home providers are obliged to provide certain services that fall outside what is covered by the Nursing Home Support Scheme and nursing homes may charge for these additional services.

My main concern is that there is clarity, transparency and fairness around any additional charges levied. All additional charges must be laid out clearly in the contract of care and agreed upon when signing the contract.  The additional services should also be separately itemised and costed.

I can understand the administrative difficulties in organising a varied and engaging social programme for residents. I can also see the unfairness to a resident, who is already paying 80% of their pension towards their nursing home care and who has to use the remaining 20% to pay for social activities which they may have no inclination or may be physically unable to participate in.

These additional charges can effectively wipe out the remaining income, leaving little for extras such as taxis for hospital visits or services such as hairdressing and chiropody. In some cases they can be an additional burden on families.

Additional charges have already been considered as part of the 2015 review of the Nursing Home Support Scheme and I understand that the Minister for Health has tasked a working group with examining this issue as part of a review of pricing under the NHSS.  In the meantime residents and their representative need to be aware that the time to agree these additional charges is when the contract of care is being finalised.

Security of Tenure

An area of particular concern for me which Sage discusses is that of security of tenure.  Over the past two years I have been made aware of a number of cases where the contract of care for a resident has been terminated by a proprietor due to the behaviour or actions of family members, rather than due to anything the resident themselves has done. I realise that often relatives can display challenging behaviours but it is grossly unfair when the solution to the problem affects the resident themselves.

One such case brought to my attention was of a gentleman with dementia whose contract was terminated due to a breakdown in the relationship between the nursing home and his wife. This gentleman’s family had to relocate him to another nursing home. Moving residence can be particularly stressful and damaging for older vulnerable people.

I understand that this is a difficulty that arises from time to time for proprietors but whatever solution is arrived at, I am firmly of the view that the resident should not be affected by the actions of their relatives.

Sage has highlighted this issue and goes as far as saying that residents in a nursing home have rights that are inferior to a private tenant in a private house rental.

While I accept the contractual right of the proprietor to terminate the contract for specific reasons. I believe that if a clause is included that allows a proprietor to terminate a contract at its sole discretion without discussion, without consultation, it fails to afford any protection to a resident. This leaves the resident in a vulnerable and exposed position.

Home Care availability

The HSE allocated 890 million euros to the Nursing Home Support scheme last year. While this year the HSE expects to spend 370 million euros on homecare services.

Both homecare services and nursing home care play a much needed role in meeting the changing needs of older people. As a society we need to ensure that the most appropriate care for older persons is available and resourced to meet their requirements.  Alternate care models are required alongside high quality residential care for those who are genuinely heavily dependent.

However it is generally accepted that community care is completely underfunded resulting in a lack of choice for older people.  At present the thrust of public policy means that nursing home care is being prioritised over the kinds of community services that could enable older people to stay at home.

The budget is tilted in such a way that there is a proportion of older people who may be directed towards nursing home care, but who would prefer to remain in their own homes with appropriate support.  I have said it before that older people who need support should be able to receive it in their own homes, if that is where they want to continue to live. 

Therefore we need to ensure that our public services do not discriminate against people who want to stay at home.  I feel it is time that our services and funding mechanisms were re-focused to ensure that older people can continue to enjoy their homes for as long as they are reasonably able to and for as long as they choose to, if that is their preference

The concept of ageing at home in the community is recommended everywhere but the right organisational structures, investment, and commitment are vital for delivering widespread homecare services. To this end I am aware that the Department of Health is actively working to improve home care services in Ireland and has just completed the public consultation stage of the process.  

It is clear that improvements that encompass community based services and vital supports such as respite care, aids and appliances, housing adaptation grants and transport assistance, also need to be considered. 

Conclusion

It is often said that the test of a society is how it treats its most vulnerable. It is society’s job therefore to ensure when we get older, which we all hope to someday, that we will be enabled to live the most fulfilled life that we possibly can, be it at home or in the care of a nursing home. 

I welcome the efforts of Sage and I hope this discussion document into the issues for policy and practice concerning contracts of care for nursing home residents, will assist both the residents and proprietors of nursing homes to approach the subject of the contract of care carefully and in a fair and transparent way. Indeed my own experience of nursing home providers is that they are keen to engage and strive to seek improvements in their service.

The care and welfare of older people in our Society is of vital importance for all of us. Sage has been working for older people, to promote and protect the freedom and dignity of older people and vulnerable adults.  I would like to thank Sage for inviting me here today. I hope that this document will be well received by the sector as a whole and will open up timely and much needed reflection and discussion.

Click to to see the full discussion document - Contracts of Care for Nursing Home Residents: Issues for Policy and Practice

 

Outreach Services

Meet our staff and receive information on making complaints.

 

Annual Report 2016

The 2016 Annual Report details the increasing numbers of complaints, and highlights the most significant cases of the past year.