The Gazette 1994

GAZETTE

JANUARY/FEBRUARY 1994

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.

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.

Nursing Home Standards

The Nursing Homes (Care and

Welfare) Regulations, 1993 set out

detailed requirements concerning

nursing home standards.

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.'

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.

The Regulations introduce the concept

of a contract of care between the

nursing home and the person cared

for.

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.

The board

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

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.

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.

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

| 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.

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.

The New Rules

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

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?

Applications for subventions

Applications for a subvention must be

made to the local health board before

a person's admission to a nursing