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Nursing Home Charges

Date released: 20.12.2004

Ombudsman's statement on the current issue of Nursing Home Charges:

The Ombudsman, Ms Emily O'Reilly, has today outlined her position regarding nursing home charges for medical card holders, and the position she intends to adopt in relation to future complaints about these matters.

• My predecessor as Ombudsman, Mr. Kevin Murphy, during his term of Office received a considerable number of complaints about the issue of nursing home charges and subventions. In 2001 he published a Report of an investigation into the issues arising from these complaints entitled Nursing Home Subventions. One of his key conclusions was that everybody resident in the State was eligible to be provided with in-patient services, where necessary, by the relevant health board. The services could be provided directly by a health board in one of its own hospitals, or in another publicly funded hospital (e.g. the so-called "voluntary" hospitals), or by way of a contracting out arrangement between a health board and a private institution. Such latter arrangements are provided for at Section 26 of the Health Act, 1970 and are required to be in accordance with such conditions as the Minister for Health and Children may specify.

• Where the patient is covered by a medical card, the services are free of charge. The definition of "in-patient services" as provided at Section 51 of the Health Act, 1970 covers acute hospital stay, but also includes wider categories of service such as the long-stay care of elderly people. To this extent, the term "in-patient services" includes the type of service generally made available to elderly people in nursing homes. Consequently, any elderly person who needs long-stay nursing home type care - which typically includes nursing care, supervision, assistance with daily activities such as feeding and dressing and which may also include services such as physiotherapy or occupational therapy - is eligible to have these services provided by the relevant health board as an aspect of in-patient services.

• The Department of Health and Children argued strongly to the effect that the Health Acts do not confer a legally enforceable entitlement to hospital in-patient services. The Department argued that the law was unclear as to whether people have a statutory right to be provided with nursing home type care by a health board. It said that the Health Act, 1970 distinguished between the terms �eligibility� and �entitlement� and that the former, in the context of the Health Act, provides for eligible people to avail of services. In the Department's opinion, patients being maintained in long term care could not be regarded as meeting the criteria for full eligibility as general practitioner and surgical services were being provided for them. It took the view that a medical card holder who, while he/she was providing for himself/herself in his/her own home was deemed to have full eligibility could be regarded as not coming within that definition when being maintained in an institution where the services being provided included medical and surgical services. Effectively, the medical cards were withdrawn from such persons on entering the institution.

• Since the publication of the Ombudsman's Report in 2001 the situation became even more complex with extension of full medical card eligibility to persons normally resident in the State who are seventy years of age. This has resulted in over 67,000 additional individuals becoming so eligible. My Office subsequently received a small number of complaints from, and on behalf of, persons who were aged over seventy years and receiving long stay care in health board institutions. They claimed that their medical card entitlement was based on their age and therefore could not be withdrawn from them. The response of the South Eastern Health Board in one particular case was that, according to legal advice provided to the Department of Health and Children and made available to the Board, a person, notwithstanding his/her age, did not have a legally enforceable right to receive services free of charge and that, by extension, the Department maintained, the Board did not have a duty to provide such services free of charge. The Board subsequently sought its own legal advice on the issue, which I understand was broadly in line with the argument presented by my office and it subsequently ceased charging my complainant. A similar position was adopted by the East Coast Area Health Board in relation to a complaint which I had referred to it.

• Over the years my predecessors have made the Department and the health boards aware of their opinion in relation to the legal situation in this area viz; that long-stay care amounts to in-patient services and that medical card holders should not be charged for such services. In addition, this view was frequently communicated at meetings with officials of the health boards and of the Department over the years. These issues were reported on in considerable detail in their annual reports e.g. 1989 and 1992, and in the special report in 2001. On taking up Office in 2003 I continued to get complaints about such charges and my first Annual Report details examples in this regard. This situation has continued throughout 2004. In November 2001 the Department published Quality and Fairness - A Health System For You, the new national health strategy. Under the Strategy's National Goal of Fair Access, provision is made for the simplification and clarification of entitlement to medical cards. In this context the Strategy noted the Ombudsman's observations in relation to the eligibility of older people for long-term residential care and confirmed that special attention would be given to these observations in a proposed general review of legislation on entitlement. The Strategy stated that new legislation would be enacted to provide for clear statutory provisions on such entitlement and promised to introduce a Bill in 2002. However, no such legislation emerged until the recent publication of the Health ( Amendment )(No 2 ) Bill 2004.

• The recent opinion furnished by the Attorney General to the Department of Health and Children, appears to be to the effect that the advice circulated by the Department provided a " flawed basis " upon with medical cards were withdrawn. In other words, it was legally unsound. In the light of this opinion as to the legal authority of the various health boards in the matter, and the administrative decision by the Minister for Health and Children to make ex-gratia payments of �2,000 in the matter, I anticipate that I will receive a number of further complaints in relation to these issues. It is my intention to examine these complaints under the terms of the Ombudsman Act, 1980, as amended. In doing so, I will take into account the individual circumstances of the complaint, the individual and general administrative actions of the Boards and the Department in the matter and any submissions they may make in relation to any complaint, relevant legislation and any determination of relevant issues by the courts. In any particular case where I find that maladministration has adversely affected a complainant I will make recommendations for redress to the relevant health agencies or the Department of Health and Children, as appropriate. I wish to emphasis that, in taking this course of action, I am not questioning the legality or constitutionality of the Health ( Amendment )( No 2) Bill, 2004 nor is it my intention to do so. As in the past, my focus will be on the administrative actions of the Department and the health agencies.

• Finally, the current controversy has focused solely on the question of patients in public institutions. It does not deal with the issue of those patients, both medical card holders and non medical card holders, who have been directed by the health boards towards private care, without in any way acknowledging their own responsibilities in the area. I remain of a similar view to my predecessors in relation to the legal situation in this regard viz; everybody resident in the State is eligible to be provided with in-patient services, where necessary, by the relevant health board. The services can be provided directly by a health board in one of its own hospitals, in another publicly funded hospital, or by way of a contracting out arrangement between a health board and a private institution. The current legislation does not address this issue.

For further information contact: Michael Brophy , Office of the Ombudsman, 18 Lower Leeson Street, Dublin 2. Tel:- (01)6395639, e-mail: michael_brophy@ombudsman.gov.ie
or Matthew Merrigan, Tel:- (01) 6395635, email: matthew_merrigan@ombudsman.gov.ie

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