The Gazette 1994

GAZETTE

JANUARY/FEBRUARY 1994

| entitled to 'in-patient services' under the Health Act, 1970 and that nursing home care is generally within the definition of in-patient services. In other words it did not remove the existing legal entitlements. The Minister for Health, recognising this difficulty, promulgated the Health (In- patient Services) Regulations 1993. 22 These Regulations basically purport to amend section 52 of the Health Act, 1970 so that nursing home services provided under the Health Acts must be provided in accordance with the provisions of the 1990 Act and the Regulations made thereunder, i.e. subject to assessment and additional means testing. However, these Regulations are almost certainly unconstitutional as an attempt by the Minister to amend primary legislation contrary to article 15.2.1 of the Constitution. 21 Section 7 of the Act provides that 'where, following an assessment by a health board of the dependency of a dependent person and of his means and circumstances, the health board is of the opinion that the person is in need of maintenance in a nursing home, and subject to the compliance by the home with any requirements made by the board..., pay to the home such amount in respect of maintenance as it considers appropriate having regard to the degree of the dependency and to the means and circumstances of the person'. Section 7 appears to envisage solely a system of assessment of entitlement to nursing home subventions. However, the Nursing Homes (Subvention) Regulations, 1993 24 promulgated under this section provide not only for such an assessment but also for a system of assessment of access to public nursing homes and to private subvented care. Quaere if the Regulations do not go beyond the scope of the section? The New Rules

person involved has 21 days to make written representations to the board. The final decision must also be notified in writing with reasons for the decision. A registered proprietor of a nursing home who wishes to renew his or her registration may apply to the board not less than 2 months before the expiry of the registration. If the board does not refuse registration before the expiry of the registration, it must renew the registration. 11 Appeal against a refusal or revocation or registration, a refusal or revocation of a declaration of fitness, or attachment, amendment or revocation of conditions, lies to the District Court within 21 days of notification of the decision. 14 Welfare) Regulations, 1993 set out detailed requirements concerning nursing home standards. 15 These cover nursing and medical care, occupational and recreational facilities, privacy, information on current affairs, religious facilities, visits, staffing levels, accommodation and facilities, safety and design, kitchen facilities, hygiene and sanitary facilities, and nutrition. A contravent- ion of these Regulations is an offence.' 6 A person convicted of such an offence may, on the application of the health board, be declared by the Circuit Court to be disqualified for carrying on, being in charge of or concerned with a nursing home. 17 The Regulations introduce the concept of a contract of care between the nursing home and the person cared for. 18 This must set out the care and welfare of that person and include details of the services to be provided and the fees to be charged. It must be provided to each person within two months of admission to the nursing home. A person in a nursing home (or somebody acting on his or her behalf) may make a complaint to the health board in relation to any matter concerning the home or the maintenance, care and welfare and well being of the person. 19 The board Nursing Home Standards The Nursing Homes (Care and

must investigate the complaint and the proprietor or the person in charge of the nursing home must be notified. If the complaint is upheld, the health board can direct the nursing home to take specified action in relation to the complaint and the proprietor must comply with this. The health board must notify the person in the nursing home of the outcome of the complaint.

Entitlement to Nursing Home and Subventions

The Existing Position

Up to 1 September 1993, where a person medically required nursing home care s/he was legally entitled to care under the Health Acts 1947 to 1991. Nursing home care generally falls under the category of hospital 'in-patient services' and should be available in the same way as any other hospital in-patient treatment. 20 Therefore a person should be entitled to nursing home care either free (if entitled to a medical card) or subject to limited charges which cannot exceed the person's income. There should be no need to undergo a further means test or to have the circumstances of the person's family taken into account. However, the position in practice bore no resemblance to the legal position. The health authorities to a large extent ignored the fact that nursing home services came within the definition of in-patient services despite a Supreme Court decision to this effect. 21 Public nursing home care was extremely limited and many persons were forced to rely on a system of means tested grants towards the cost of private nursing home care for which there appeared to be no appropriate legal basis. This meant that the health boards, in many cases, were not fulfilling their legal obligations under the Health Acts. The 1990 Act and Nursing Homes (Subvention) Regulations, 1993 introduced a separate scheme of entitlement to nursing home care and subventions. However, the 1990 Act did not change the fact that people are

Applications for subventions

Applications for a subvention must be made to the local health board before a person's admission to a nursing

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