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Government policy in relation to older people is to support them to live in their own homes and communities for as long as possible, and where this is not possible, to support access to quality long-term residential care. See: Nursing Homes Standards Regulatory Impact Analysis, (2008).
State policy from the 1980s states that “it is fundamental to the welfare of the elderly that every elderly person has an opportunity to live in accommodation suited to his or her needs” see: Government of Ireland, The Years Ahead ... a policy for the Elderly (1988).
The case of In the Matter of Maud McInerney, a Ward of Court, established that there was an obligation on Health Boards (now the HSE) to provide more than mere shelter and maintenance for elderly people in their care.
See also,"Nursing Homes Standards Regulatory Impact Analysis Regarding Payment of Nursing Home Subventions By Health Boards" issued by the Office of the ombudsman in 2001.
The Health Act 1970 and this 1976 judgment had created a legally enforceable “minimum core obligation” on the Irish State to provide in-patient services, without charge, to eligible older people.
In 2010, the Ombudsman reiterated that the legal rights of older people to nursing home care was set out in law:
"On the face of it, the law places a clear obligation on the HSe to provide in- patient services for all who are ordinarily resident in the State. Section52(1) of the Health Act 1970 says, in plain and unambiguous terms, that a “health board[HSE] shall make available in-patient services for persons with full eligibility and persons with limited eligibility”. It is relevant to note the mandatory and unqualified nature of this provision. leaving to one side the relevance of the NHSS Act 2009, it has been clear since the McInerney judgment of 1976 that nursing home care is a service comprised within the wider category of in-patient services and, accordingly, section 52(1) of the Health Act 1970 applies. On the face of it, therefore, health boards and now the HSE are obliged to provide nursing home care for al those ordinarily resident in the State who need such care. The Ombudsman office’s long-held position on this was set out in considerable detail in a presentation made by the then Ombudsman, Kevin Murphy, to the Oireachtas Joint Committee on Health and Children on 21 June 2001..".
See: “Who cares? An Investigation into the Right to Nursing Home Care in Ireland"”, (Dublin, Office of theOmbudsman, 2010) p 51. It is important to point out that the Department of Health and Children does not agree withthis interpretation of the law.
It emerged in 2004 that Health Boards had been charging some 20,000 elderly patients with medical cards who were entitled to free nursing home care, and others, since 1976. The Health (Amendment) (No 2) Bill 2004 sought to retrospectively validate these and other unlawful charges on nursing homes residents. The Supreme Court found the Bill repugnant to the Constitution in Re Article 26 and the Health (Amendment) (No 2) Bill, 2004. The Attorney General submitted to the Supreme Court that, since 1976 there was no legal basis for imposing such charges on persons with full eligibility.
The report, Older People in Long Stay Care, published in 2003 by the Irish Human Rights Commission raised some important human rights issues in relation to older people in long-term stay care including:
●● the adequacy of measures to ensure equality of treatment between older people in long-term care and those being cared for at home and between those in public care;
●● the lack of clarity of entitlement;
●● the inadequate provision of public care and the level of reliance on
●● the incidence of inhuman and degrading treatment in care and/or lack
of respect for human dignity;
●● the right to an effective remedy in the absence of adequate complaints
and appeals procedures.
While local authorities and housing associations provide new dwellings specifically for older people, the primary State response has been to encourage the development of private nursing homes through capital allowance tax relief in the Taxes Consolidation Act 1997.
A new scheme of tax relief for the construction or refurbishment of housing units for the aged or infirm was introduced in s 33 Finance Act 2002, amending s 268 of the Taxes Consolidation Act 1997.
The Indecon "Evaluation of Scheme of Allowances for Qualifying Residential Units Associated with Nursing Homes report",(2007) pointed out that tax relief under this scheme totalled €10.7m between 2004 and 2005, with an estimated additional €39m to 2008. The report estimated the gross tax costs of this incentive to the exchequer to be between €13–14m over the period 2004–2014 - the continuing tax allowances arising from the developments of 2004–2008. There were some 56 nursing homes providing 964 units of associated residential units in 2006.
The Health and Social Services for Older People (HeSSoP) Report in 2001 showed that older people expect that, in the event that they could not live independently, they would still like to continue to live in their own home.
Of course, the report shows that there are significant numbers of older people who wish to live in sheltered or supported housing. The Irish Council for Social Housing (ICSH) has pointed out that in 1984, the voluntary and co-operative sectors had a total stock of 1,850 rental dwellings, of which nearly two-thirds were specifically for older people. By 2005 housing associations had developed over 7,000 homes for older people with half of these managed as sheltered housing. See: "An Overlooked Option in Caring for the Elderly; A report on sheltered and group housing provided by housing associations in Ireland" (Dublin, iCSH, 2005).
The NCAoP report,"The Role and Future Development of Supportive Housing for Older People in Ireland, Report 102,"in 2007 identified a total provision of some 9,232 5–36 units of supported accommodation by housing associations and local authorities. This report recommended that the HSE in consultation with housing providers should develop a clear vision and statement on what “supportive housing” is, what it should be called, and the housing and care components that should be provided, who should be responsible for it and how it should be provided, how the roles of the relevant stakeholders should be coordinated, what is needed to ensure equitable treatment for the full spectrum of older people and the overall (integrated) regulatory framework needed for supportive housing.
HIQA and Older People
The Health information and Quality Authority (HiQA) is responsible for the registration and inspection of all “designated centres for older people” since July 2009. The Health Act 2007 (Care and Welfare of Residents in Designated Centres for Older People) Regulations 2009, contain provisions for the purposes of ensuring proper standards for designated centres for older people.
HiQA has also published in 2009, "The National Quality Standards for Residential Care Settings for Older People in Ireland", which are based on the legislation standards in other jurisdictions, research findings and best practice.
Inspections of these residential services are undertaken by HIQA in a mixture of both announced and unannounced visits, by day, weekends, evenings and at night. Reports of the inspections are published on line, here.
However, HIQA has no responsibility for the regulation of home care provision for older people, despite the fact that this is where most dependent older people live – estimated to cover 95% of the over 65 category (though, of course, not all this group require home care). The Law Reform Commission in its Consultation Paper on Legal Aspects of Carers recommended that s 8(1)(b) of the Health Act 2007 be amended to extend the authority of the Health Information and Quality Authority to include the regulating and monitoring of professional domiciliary care providers (para. 1.42). The LCR issued their Report on Legal Aspects of Carersin 2011.
The “Fair Deal” or Nursing Homes Support Scheme
The Nursing Home Support Scheme was introduced under the provisions of the Nursing Home Support Scheme Act 2009, which came into force by 27 October 2009. This introduced for the payment of residential nursing care, in both State institutions and private nursing homes. The Regulatory Impact Analysis for this legislation showed that there were 22,000 older people in residential care in 2007, of whom two-thirds were in private nursing homes. This figure was expected to increase 44,000 in 2036 and 61,000 in 2056.
Essentially, this scheme replaces the Subvention Scheme for nursing home care. It creates a similar set of charges for public and private long-term residential care services available to anyone ordinarily resident in the State. There is no distinction on age grounds.