REPORT
legal aspects of professional
home care
(LRC 105 - 2011)
© Copyright
Law Reform Commission
FIRST PUBLISHED
dECEMBER 2011
LAW REFORM COMMISSION’S
ROLE
The Law
Reform Commission is an independent statutory body established by the Law
Reform Commission Act 1975. The Commission’s principal role is to keep the law under review and to
make proposals for reform, in particular by recommending the enactment of legislation
to clarify and modernise the law. Since it was established, the Commission has
published over 170 documents (Consultation Papers and Reports) containing
proposals for law reform and these are all available at www.lawreform.ie. Most
of these proposals have led to reforming legislation.
The
Commission’s law reform role is carried out primarily under a Programme of Law
Reform. Its Third Programme of Law Reform 2008-2014 was prepared by the Commission
following broad consultation and discussion. In accordance with the 1975 Act,
it was approved by the Government in December 2007 and placed before both
Houses of the Oireachtas. The Commission also works on specific matters
referred to it by the Attorney General under the 1975 Act.
The
Commission’s role also involves making legislation more accessible through
three other related areas of activity, Statute Law Restatement, the Legislation
Directory and the Classified List of Legislation in Ireland. Statute Law
Restatement involves the administrative consolidation of all amendments to an
Act into a single text, making legislation more accessible. Under the Statute
Law (Restatement) Act 2002, where this text is certified by the Attorney General it can be relied on
as evidence of the law in question. The Legislation Directory – previously
called the Chronological Tables of the Statutes – is a searchable annotated
guide to legislative changes. The Classified List of Legislation in Ireland is
a list of all Acts of the Oireachtas that remain in force, organised under 36
major subject-matter headings.
Membership
The Law Reform Commission consists
of a President, one full-time Commissioner and three part-time Commissioners.
The Commissioners at present are:
President:
Vacant at the time of going to print (December 2011)
Full-time Commissioner:
Patricia T. Rickard-Clarke, Solicitor
Part-time Commissioner:
Professor Finbarr McAuley
Part-time Commissioner:
Marian Shanley, Solicitor
Part-time Commissioner:
The Hon Mr Justice Donal O’Donnell, Judge of the Supreme Court
Law Reform Research Staff
Director of Research:
Raymond Byrne BCL, LLM (NUI), Barrister-at-Law
Legal Researchers:
Kate Clancy, LLB (Hons) (TCD)
Conor Cunningham BCL (Clinical) (UCC), LLM (UCL)
Dannie Hanna BCL (NUI), LLM (Cantab)
Donna Lyons LLB (Dub), LLM (NYU), Attorney at Law
(NY)
Tara Murphy BCL (Law with French Law) (NUI), LLM
(Essex), Barrister-at-Law
Máire Reidy BCL (NUI), LLM (NUI), Barrister-at-Law
Statute Law Restatement
Project Manager for Restatement:
Alma Clissmann BA (Mod), LLB, Dip Eur Law (Bruges), Solicitor
Legal Researcher:
Elaine Cahill, BBLS, LLM
Eur Law (NUI), Dipl. IP & IT, Solicitor
Legislation Directory
Project Manager for Legislation Directory:
Heather Mahon LLB (ling. Ger.), M.Litt, Barrister-at-Law
Legal Researchers:
Aoife Clarke BA (Int.),
LLB, LLM (NUI)
Barbara Brown BA (Int.), LLB, Attorney-at-Law (NY)
Rachel Kemp BCL (Law and German) LLM (NUI)
Aileen O’Leary BCL (NUI), LLM (NUI), AITI, Solicitor
Administration Staff
Head of Administration and Development:
Ciara
Carberry
Executive
Officer:
Ann
Byrne
Legal
Information Manager:
Conor
Kennedy BA, H Dip LIS
Cataloguer:
Eithne
Boland BA (Hons), HDip Ed, HDip LIS, LLB
Clerical Officers:
Ann Browne
Liam
Dargan
Principal legal researchers
for this report
Ciara Staunton BCL (NUI), LLM
(NUI), Diop sa Gh (NUI)
Máire Reidy BCL (NUI), LLM (NUI),
Barrister-at-Law
CONTACT DETAILS
Further
information can be obtained from:
Head of Administration and
Development
Law Reform Commission
35-39 Shelbourne Road
Ballsbridge
Dublin 4
Telephone:
+353 1 637 7600
Fax:
+353 1 637 7601
Email:
info@lawreform.ie
Website:
www.lawreform.ie
ACKNOWLEDGEMENTS
The
Commission would like to thank the following people and organisations who
provided valuable assistance:
Age Action Ireland
Alzheimer Society of Ireland
Geraldine Bermingham-Rigney, Specialist Services for
Older People, Health Service Executive (HSE)
An Bord Altranais
Janet Convery, School of Social Work and Social
Policy, Trinity College Dublin
Hugh Cummins, National Advocacy Programme, Quality
and Patient Safety Directorate, HSE
Dublin Leader Advocacy Service
Clare Duffy, Social Policy Officer, The Carers
Association
Mary Ferns, Irish Cancer Society
Brenda Hannon, Specialist Services for Older People,
HSE
Ann Harris, National Advocacy Programme, Quality and
Patient Safety Directorate, HSE
Darren Hughes, The Netwell Centre Louth
Irish Hospice Foundation
Irish Private Home Care Association
Joan Kelly, Irish Cancer Society
Marie Lynch, Irish Hospice Foundation
Oonagh McAteer, Dedicated Officer for the Protection
of Older People, HSE Dublin North East
Anne-Marie McGauran, Policy Analyst, National
Economic and Social Council
Pascal Moynihan, Specialist Services for Older
People, HSE West
Ed Murphy, Home Care Association
Sarah Murphy, Policy Manager, Social Services
Inspectorate (SSI), Health Information and Quality Authority
Paul Murray, Irish Hospice Foundation
Liam O’Sullivan, Executive Director, Care Alliance
Ireland
Hilary Scanlan, Development Manager for Carers, HSE
South
Maria Stanley, Department of Health
Full
responsibility for this publication lies, however, with the Commission.
CHAPTER
1 Regulation
of home care in ireland
B Development of care for older people
(3) The 1988 Years Ahead Report
(4) 1997 Impact of the Years Ahead Report
(5) Government Strategy since the 1990s
(7) Regulatory Developments since the 2009 Consultation
Paper
C Proposed Regulatory Scheme for Professional Home
Care Provision
(2) Registration of home care providers
(3) Ministerial regulation-making power
D Scope of Professional Home Care
(2) Older People, Vulnerable Adults and the Scope of the
Report
(4) Protection of at risk or vulnerable adults
CHAPTER
2 National
standards FOR PROFESSIONAL HOME care AND THE CONTRACT FOR CARE
B National Standards for Professional Home Care
(2) Contracting with a private sector home care provider
(3) Private contractual arrangements
(2) Offence of Ill treatment or wilful neglect
(4) Disclosures of information
CHAPTER
3 Funding
long-term care
B Demographic Changes in Irish Society
(4) Universal Health Insurance
(7) Nursing Homes Support Scheme
CHAPTER
4 Summary
of recommendations
Appendix DRAFT HEALTH (PROFESSIONAL HOME CARE) BILL 2011
1.
This Report
forms part of the Commission’s Third Programme of Law Reform 2008-2014[1] and follows the
publication in 2009 of its Consultation Paper on the Legal Aspects of Carers,[2] which provisionally
recommended that legislation be enacted to ensure that an appropriate
regulatory framework and legal standards are in place for professional carers
(as opposed to informal carers) engaged in the provision of care to people in
their own home.
2.
Since the
Commission’s Consultation Paper was published, the National Economic and Social
Forum (NESF, now subsumed into the National Economic and Social Development
Office, NESDO) published a Review of the Home Care Package Scheme,[3] which describes a
number of key policy issues concerning the initial development of the national
home care package. The NESF Review has been of significant assistance to the
Commission’s analysis in this Report. Also of significance is the publication
of the first results of the Irish Longitudinal Study on Ageing (TILDA),[4] which sets out the
initial findings of the most detailed study of ageing ever undertaken in
Ireland. The Commission has also considered the Report of the Expert Group
on Resource Allocation and Financing in the Health Sector[5] and the implications of
the findings in that Report for the funding of long-term care.
3.
The
Commission considers that these important developments should be seen against
the general background of stated government health care policy of recent years,
in particular as it applies to older persons and other adults who may require
health care and other assistance in a home setting. The Commission notes in
this Report that this policy involves the development of a fully-integrated
health care service, including an approach that supports the stated wishes of
older people and other adults who require care
support to live in dignity and independence in their own homes and communities
for as long as possible.
4.
The 2006
census[6] revealed that 11% of
the population was over 65 years of age, and the preliminary data from the 2011 census
indicated that, in 2011, 11.68% of the population was over 65 years of age.[7] It was noted that the
number of people over 65 had increased in every census from 1961. 95% of people
over 65 live at home.[8] According to CARDI,
9.1% of people in that age group are still in employment.[9] The proportion of
people in Ireland over 65 is predicted to continue to rise from its current
level of 11.4% to 22.4% by 2041.[10] In other words, it is
anticipated that the proportion of people over this age in Ireland will double
in the next 20 years. The number of those aged 80 and over is expected to rise
from 2.8% of the population in 2011 to 3.5% of the population in 2021, a rise
of 45%.[11] While there has been a
recent upward trend in fertility rates, this is not likely to be maintained. It
is expected that fertility rates will decline, albeit moderately.[12] It is predicted that
the improvements in life expectancy will continue[13] and that the life
expectancy for males will increase from 76.7 years in 2005 to 86.5 years in
2041. For females it is expected that life expectancy will increase from 81.5
years in 2005 to 88.2 years in 2041.[14]
5.
The growth
in life expectancy will increase the participation of the older population in
the cultural, social and political life of Irish society and such a development
is to be welcomed, particularly due to the wealth of experience the older
generation brings. While the majority of older people lead active lives, a
minority require assistance to live independently and the increase in the older
population is likely to result in a greater need for community-based health and
social care services.[15] The Department of
Health has acknowledged that community-based service is expected to become more
essential given the changing demographics and capacity limitations in the
long-term care and acute hospital system and is a fundamental component in
ensuring service delivery.[16] In addition the
majority of older people prefer to live at home and Government strategy has
signified a clear preference to maintain older people in their own homes.[17] Despite this
commitment, there is an absence of a regulatory structure for the delivery of
professional care in the home. The focus of this Report is to address this
absence.
6.
The
Commission, however, notes that it is not just older people who may require
home care. Any adult may require home care for a period of time, such as
rehabilitation in the home after a car accident, an adult may develop a chronic
illness which may require home care, or an adult may require home care due to
age-related issues. In line with its previous work on vulnerable adults,[18] the Commission’s focus
is on maximising the individual’s independence, autonomy and choice and
ensuring that their constitutional rights and international human rights
standards are adhered to in the delivery of professional home care.
7.
The Commission now proceeds to provide an
overview of the Report.
8.
Chapter 1 begins by tracing the evolution of
long-term care for older people, which has moved from an emphasis on
residential care to home care. An analysis of the history of long-term care for
older people is appropriate in any discussion on the regulation of home care
services in Ireland, as much of the work that has been carried out on the
regulation of services for older people may be applicable by way of extension
to all adults in need of home care.
9.
The Commission then proceeds to consider the
general outline of its proposed regulatory scheme for the provision of
professional home care in Ireland. In the Consultation Paper, the Commission
provisionally recommended that the Health Information and Quality Authority
(HIQA), which was established under the Health Act 2007 as the
regulatory authority for institutional care provision, should also be empowered
to regulate professional home care providers. The Commission notes that, since
2009, it has not received any submissions that have taken a contrary view on
this general recommendation, and that indeed the developments discussed above
indicate that policy initiatives since then have gradually moved towards
further (albeit non-statutory) regulation of this area.
10.
The
Commission also notes that these moves that have been supported by general
government policy and by the representative bodies of professional home care
providers. Moreover, the Commission also notes that debate in this area has, in
general, focused on whether the State is in a position from a financial
perspective to extend the statutory regulatory role of HIQA under the 2007 Act
and the extent to which the detailed standards and requirements of such a
statutory regime could be met by all home care providers. Chapter 1 therefore
proceeds to affirm the general approach taken in the Consultation Paper and the
Commission also details the general principles
which it considers should underpin the proposed legislative scheme.
11.
Chapter 2 discusses the need for national
standards which, in the Commission’s opinion, should underpin the proposed
contract for care. The purpose of the proposed legislation, standards and
contract for care must be to ensure that there are protective procedures in
place to protect the people receiving professional care services in their home
and to ensure that relevant sanctions are available in cases of non-compliance.
12.
Chapter 3 involves a consideration of funding
long-term care in Ireland. This involves an examination of potential funding
models which may be followed. While the Commission does not make any specific
recommendations on future funding models, as this involves significant policy
decisions, it is important to note such issues which must be considered in line
with the reform of the regulatory structures for delivering home care.
13.
Chapter 4 contains a summary of the
Commission’s recommendations.
14.
The Appendix contains a draft Health
(Professional Home Care) Bill 2011 to implement the Commission’s
recommendations.
1.01
In this chapter the
Commission traces the changes that have occurred in long-term care for older
people. In Part B the Commission examines the evolution of long-term care,
moving from an emphasis on residential care to home care. The Commission also
discusses the various international conventions in respect of older people. In
Part C the Commission affirms the general thrust of the analysis taken in the
Consultation Paper (in respect of which there has been general approval) and
proposes a regulatory scheme for home care in Ireland, which involves an
extension to the current regulatory remit of HIQA.. In Part D the Commission
examines the general scope of the term “home care”. Finally, Part E details the
general principles which the Commission considers should underpin the proposed
legislative scheme.
1.02
The 1968 Care of the
Aged Report was the first report to examine caring for an aging population
in Ireland.[19]
It acknowledged that old age is not always a time of ill-health and disability,
because most older people live independent lives.[20]
However the Report recognised that many older people need some assistance,
often from their family, as they age. It was felt that better services should
be provided to older people to help them to remain living in their homes. The
Report considered that Ireland must improve the standard of domiciliary and
institutional services for older people, which it noted had improved in other
countries by the late 1960s.[21]
The report also recommended the establishment of the National Council for the
Aged to promote the general welfare of older people.[22]
1.03
The Care
of the Aged Report resulted in increased voluntary involvement in caring
for older people and also brought about an increase in voluntary Care of the
Aged Committees and Social Welfare Councils throughout Ireland.[23] Despite the
improvements resulting from this report, there continued to be shortcomings in
the home care services for older people with many older people having no choice
but be admitted to institutional care.[24]
1.04
The health
board system was established in Ireland in 1970 by section 4 of the Health
Act 1970. Section 38(1) and section 56(1) of the 1970 Act detailed the care
which the health boards were required to provide. However the Health Act
1970 did not legally require the health boards to provide home help services.
The provision of such services was left to the discretion of the health boards.
It is thus unsurprising that the National Council for the Elderly have argued
that the absence of a legal obligation to provide home care services has left
the provision of such services susceptible to underfunding.[25] To put in perspective
the extent to which this service is currently made available, according to
TILDA, only 3.5% of people over 50 years of age receive state-provided home
help service in Ireland[26] while 1% had the help
of a state-provided personal care attendant.[27]
1.05
Residential
care for the elderly began to become the norm for Ireland with nursing home
beds increased by 50% in the late 1980s.[28] This was largely due to
a growth in private sector nursing homes and occurred independently of any
national plan.[29] In 1986, the Working
Party on Services for the Elderly was established to review, among other
things, community services for the elderly.[30] The Years Ahead report
acknowledged the impact an aging population would have on the future planning
of long-term care in Ireland.[31] The report considered
maintaining older people in their homes for as long as possible to maximise
their independence and dignity as among its objectives.[32]
1.06
The Years
Ahead report identified that policy in the 1980s placed the primary focus
of care on hospital care, with community care playing a supporting role.[33] As a result, Ireland
had a high level of hospital admissions. The report also found that the high
level of long stay beds for the elderly “made it too easy to admit elderly people
to institutions when they could no longer cope with daily activities at home.”[34]
1.07
The report
recommended the expansion of the home help nursing service as one method of
alleviating hospital expenditure.[35] The report also found
that due to the largely voluntary nature of home help services, it was a cost
effective method of delivering help in the home.[36] However due to the lack
of a legal obligation to provide home help services, the Years Ahead Report
noted that such services were vulnerable to financial cutbacks. The report thus
repeated the familiar demand that the health boards should be legally obliged
to provide home help services.[37]
1.08
In 1997 the
National Council on Ageing and Older People reported on the implementation of
the Years Ahead Report. While acknowledging that nine years on the
report was not an adequate template for the development of policy on care for
older people, the Council expressed disappointment that many of the
recommendations in relation to home care were not implemented.[38] The Council found that
despite the optimism expressed in the Years Ahead Report, home care was
not necessarily a cheaper option to institutional care. The real benefit of
home care was that it gives older people the option to remain in their home.[39]
1.09
The Council
noted that some advancement had been made. With the exception of two health
boards, all health boards achieved the target number of public health nurses.
However, as many of the nurses employed as public health nurses were not
qualified public health nurses, but general nurses, it was felt that the number
of public health nurses needed to be increased.[40]
1.10
The Council
noted the home help service was well received by those in receipt of the
service. It was also of the opinion that such a service was vital as it enabled
older people to live independently in their own homes and avoid unnecessary
hospitalisation or admission to long stay institutions. However, home help
services remained a discretionary service to be provided by the health boards.[41]
1.11
In the Programme
for Economic and Social Progress in 1991 the Government committed itself to
development of community services.[42] It sought to ensure
that older people living in the community would continue to do so and that
those living in long stay institutions have the opportunity to move back into
the community. It was envisaged that a seven year programme would give effect
to the improvements in community care.
1.12
Regarding
the elderly, the Government committed itself to
·
Expanding
nursing homes and other support services for the elderly and their carers
living at home;
·
Extending
respite facilities to relieve the families caring for dependant elderly at
home;
·
Providing
specialist assessment and rehabilitation units associated with the main acute
general hospitals.[43]
1.13
In 1994, the Government’s health strategy Shaping
a Healthier Future - A Strategy for Effective Health Care in the 1990s
noted that failure to provide adequate community care would lead to an increase
in unnecessary admissions to hospitals of people who could otherwise be treated
in the community.[44] The strategy noted that the poor coordination of services
for older people has led to unnecessary hospital admission.
1.14
Among the aims of the strategy was a home care
service for those who are terminally ill and the encouragement of GPs to care
for older people who would otherwise be admitted to hospital. The strategy also
aimed to give priority to strengthening home and community services for older
people and to provide support to older people who are ill or dependent and also
to support those caring for them.[45] The strategy was concerned that services must be
responsive to changes in the population and the expected rise in the number of
older people living in Ireland. It was noted that services for older people had
improved since the publication of the Years Ahead Report. Day care and
respite services had increased along with the number of hospitals providing
specialised departments for the care of older people. Long stay institutions
had improved along with the coordination of services for older people within
the health boards. Despite the noted improvements, the strategy was of the
opinion that certain aspects of the care of older people was in need of
improvement such as in promoting healthcare ageing and increasing the number of
specialised departments of medicine of old age.[46]
1.15
Despite the
emphasis placed on home care, institutional care remained the norm for many
people. This was due to a lack of resources and the lack of incentives to
discriminate positively in favour of home care.[47] The lack of
coordination of services also served to reinforce the bias towards
institutional care. Thus while the Care of the Aged Report and the Years
Ahead Report began the process of modernising the delivery of health care
services for older people and began the process of focusing care for the elderly
in community care settings, the reports did not achieve their aims.
1.16
In December
1997, section 268(1) of the Taxes Consolidation Act 1997 introduced a
scheme of capital allowances in respect of the construction or refurbishment of
private nursing homes. This scheme was extended under section 33 of the Finance
Act 2002 for the construction or refurbishment of housing units associated
with a registered nursing home. This tax incentive ensured that the bias
towards residential care was underpinned further.
1.17
Not only do
home care services remain outside the remit of a legislative framework, but it
was not until 2001 that older people were asked for their perspectives on
long-term care. The Health and Social Care for Older People Report (HeSSOP
Report) was prepared by the National Council on Aging and Older People, the
Western Health Board and the Eastern Regional Health Authority Area.[48] 937 older people who
live in the community were randomly selected to be surveyed. The aim was to
give older people a voice to express what they want from services and evaluate
the extent to which their preferences are met.[49] The study examined the
perspectives of older people on health and social services. It provided an
opportunity for older people to express their lifelong care preferences.
1.18
The older
people surveyed clearly expressed that they wanted to remain living in their
own homes. They expressed the wish that family and friends be the principal
caregivers and the role of the health and social services should be to provide
the support to help them and their families. It was clear from the study that
options such as residential care and boarding out were unacceptable to
significant numbers of older people.[50]
1.19
The study
highlighted that the range of health and social services in caring for older
people in the community was limited. 37% of people who were severely impaired
in carrying out their daily activities had not received any home service in the
past year. It was also noted that one in ten people who had experienced severe
disruption in their lives due to illness had not received any of the home or
community based services studied. As a result of the findings, the Council
noted that “at present health and social services are only meeting the needs of
some older people with many more reporting need for services than are in
receipt of them.”[51] The findings led the
Council to recommend that home and community care should be legally provided.
1.20
According
to the 2001 Health Strategy Quality and Fairness: A Health System for You,
key actions for ageing and older people included:
·
Inter
departmental coordination of services for older people;
·
Funding
voluntary services which assist older people;
·
Increased
support for older people;
·
Introduction
of home subvention scheme for the care of older people;
·
Introduction
of a respite care grant for dependant older people;
·
Introduction
of legislation with a clear framework for financing care for older people.
1.21
In 2005,
the National Economic and Social Forum (NESF) found that the bias towards
residential care continued to exist. This is due in part to the financial
supports and incentives which favour long-stay care.[52] In particular the NESF
pointed out the following as such examples:
·
An older
person may qualify for a private nursing home subvention but not be able to
convert that into a care subvention to live at home;
·
Tax relief
is available to the person who pays the nursing home fees but is not available
for contracted nursing care at home.[53]
1.22
The
National Development Plan 2007-2013 allocated €4.7 billion to help older people
live independently for as long as possible in their own homes and communities.[54] This allocation was to
help fund home care packages, meals on wheels services, community intervention
teams and respite day care services.[55] In the Programme for Government 2011, the Government
pledged their support for older people continuing to live in their own homes
and communities for as long as they wish and promised to facilitate this by
ensuring that the eligibility criteria for the home help and the Home Care
Package Scheme are applied consistently.
1.23
Under the Government’s Infrastructure
and Capital Investment programme for 2012-2016, published in November 2011,
it is envisaged that funding will be allocated across a number of
sub-programmes – primary care, mental health, older people, disability and
acute hospitals – in accordance with the commitment in the Programme for
Government to prioritise primary care centres, long-term facilities and
community care facilities such as day centres for older people.[56]
1.24
As public
policy evolved and the benefits of home care were acknowledged, home care
supports became available. Financial support is available not only to purchase
home care but also to support informal carers. Currently supports are available
for both the carers and the person to whom the care is being provided. However,
currently tax relief is not available for the costs incurred for meeting home
care.[57]
1.25
The Health
Service Executive (HSE), established under the Health Act 2004 as
successor to the health boards, may make arrangements through its home help
service to help maintain people in their homes who would otherwise need
institutional care. There is, however, no legal obligation on the HSE to
provide such a service. The home help usually provides a set number of hours
assistance each day or week, depending on individual needs. According to TILDA,
people with impairments in their ability to go about the various activities of
daily living receive on average 118 hours of help per month – the most common
helper for this group is the recipient’s spouse. Only 3.5% of people over 50
years of age receive state provided home help services.[58] For the limited number
of those who are in receipt of this service, the home help can assist or
provide them with a number of household tasks such as cooking, light cleaning,
laundry and some shopping. The home help may also provide some personal care
but they are not expected to provide nursing or medical care.
1.26
The service
is generally free to medical card holders but people may be asked to contribute
towards the service even if in possession of a medical card. If the person can
pay for the service themselves they must do so. The HSE can however assume the
responsibilities of the employer on behalf of the person who pays the costs.
1.27
The Home
Care Support Scheme (also known as a Home Care Support Package) is a
non-statutory scheme introduced in 2006 and operated by the HSE. At the time of
writing (December 2011), the Scheme is currently free of charge and it forms
part of €4.7 billion allocated under the National Development Plan 2007-2013 to
assist people to live independently. The home care packages are provided under
a grants-based system[59] and the services
provided can include assistance from public health nurses, home care
attendants, home helps, physiotherapists and occupational therapists. There is
no set home care package and the package will vary according to need. In 2010,
in an attempt to bring greater consistency to the scheme, the HSE introduced National
Guidelines and Procedures for the Standardised Implementation of the Home Care
Package Scheme.[60] These Guidelines
incorporated recommendations from the National Economic Social Forum (NESF),
who, in a 2009 Report, had highlighted the lack of uniformity in the manner in
which the Home Care Package Scheme had been implemented.[61]
1.28
A 2011 Department of Health evaluation indicated that the majority (77%)
of home care package recipients are over age 75, and around 40% are over age
85. Most are female (63%) and 89% of all recipients have a medical card. The
service is expected to become more essential given the changing demographics.[62] In terms of the growing need for professional home
care services and the extent to which the services are provided to those in
need at present, the TILDA study concluded that 12% of older people who suffer
from impairments in the activities of daily living, some of whom are severely
impaired, do not receive any formal or informal help. The study highlighted the
potential vulnerability of this group of people and made known the extent to
which many people who require home care are left without any support – formal
or otherwise.[63]
1.29
The
priority of the Home Care Support Scheme is for people who are 65 years of age
and older and who are living in the community or inpatients in acute hospitals
who are at risk of admission to long-term care. However, the Scheme is not
limited to those over 65. Home care packages are also available to people who
are in long-term care but wish to return to the community. The Scheme is
designed to enhance rather than replace home support services already in place.
In terms of the ability of the scheme to meet the needs of people who require
assistance with the activities of daily living, it is emphasised in the 2010 National Guidelines
and Procedures for the Standardised Implementation of the Home Care Packages
Scheme that
the extent of the support available through the Home Care Package Scheme is
subject to the limit of the resources allocated each year to the HSE for the
running of the scheme. The limited resources available may be one of the
reasons for the TILDA finding that only 1% of the older population in Ireland
had the help of a state-provided personal care attendant.[64]
1.30
Once a
person has been admitted to the scheme, the Home Care Package may consist of a
direct cash grant to enable a person’s family to purchase a range of services
or supports privately. The decision to allocate a home care package is based on
an assessment of need, identification of any needs not being met by mainstream
community services and the appropriateness of care in the community in the
individual case. If family or a friend can provide the care, they are
encouraged to do so with HSE help. Home care packages can be delivered in 4
principal ways:
·
Direct
provision by the HSE, usually through staff directly employed by the Local
Health Office;
·
Services
provided through private commercial agencies, but paid for by the HSE;
·
Services
provided through community and voluntary groups, and paid for by the HSE;
·
Cash
grants, which allow people to use the funding to organise their own care.
However, this arrangement is no longer available in many areas.[65]
1.31
As
previously mentioned, in September 2009, the National Economic and Social Forum
(NESF) published a report on the implementation of home care packages.[66] In general terms, the
submissions received by the NESF praised the introduction of the packages and
the positive impact they had on people’s lives. This was also highlighted in
the PA Consulting Group’s Evaluation of Home Care Packages which noted
that the packages resulted in older people remaining in their home who
otherwise would have been admitted to residential care.[67] The NESF Report did,
however, highlight a number of problems with the operation of the scheme.
Regional variations in eligibility criteria for home care packages were noted.
Not only did this result in inconsistency but it also lead to confusion as to
the eligibility criteria.[68] It was noted that the
maximum amounts payable per week under a health care package varied according
to the local health office and also variations in how the home care packages
are delivered.[69] The Report pointed out
the regional variation in the provision of information regarding home care
packages, with different local health offices providing differing levels of
information.[70]
1.32
A number of
health care providers noted that the variations in the implementation of the
scheme led to a duplication of their administrative work. It was also found
that double or triple assessment of the care needs and of the means test of an
older person occurs.[71] Significantly it was
pointed out in submissions that the inconsistencies between the funding and
means tests for health care packages and nursing home care favoured nursing
home care.[72] The NESF thus
recommended that greater coordination of services was required[73] to reduce the duplication
of work and improve the service provided to people in need of professional home
care.
1.33
The
Commission welcomes the introduction in 2010 of the National
Guidelines and Procedures for the Standardised Implementation of the Home Care
Packages Scheme which aims
to reflect the recommendations of the NESF review of the Home Care Package Scheme.
The Commission also welcomes the Government’s commitment to make professional
home care services subject to inspection by the Health Information and Quality
Authority (HIQA).[74] This was one of the provisional recommendations in the Consultation
Paper on the Legal Aspects of Carers.[75]
1.34
In 2011, in response to the various reviews of the Home Care Packages
Scheme, the Health Service Executive (HSE) initiated a new Procurement
Framework for Home Care services. The purpose of these measures is to promote
quality and safety and also promote a more standardised and cost effective
approach to provision nationally, whether directly by the HSE, or those
providing services on its behalf. It is anticipated that any savings generated would
be used to fill unmet need in view of increasing demographic pressures.[76]
1.35
The Commission also
welcomes the proposed adoption by the Health Service Executive (HSE) of the
interRAI suite of tools (previously known as the MDS and MDS-HC [Home care])
for the assessment of the care needs of older people.[77]
This particular assessment tool is currently the subject of a pilot study
conducted by the HSE in order to determine how usable, practical and acceptable
these tools are to service users, their carers and to staff involved in the
delivery of healthcare services in Ireland.
1.36
Protecting the rights
of older people is part of various action plans and conventions from the United
Nations and the Council of Europe.
1.37
In 1991, the United
Nations Principles for Older Persons saw the principles of independence,
participation, care, self-fulfilment and dignity as core to older people.
Principle 14 states as follows:
“Older persons
should be able to enjoy human rights and fundamental freedoms when residing in
a shelter, care or treatment facility, including full respect for their
dignity, beliefs, needs and privacy and for the right to make decisions about
their care and the quality of their lives.”
1.38
The UN Principles were
followed up in 2002 by the Madrid Plan of Action
on Ageing.[78] It called for changes in attitudes, policies and practices
so that the enormous potential of ageing in the twenty-first century may be
fulfilled. This will ensure that people can age with dignity and security while
continuing to participate in their community.
1.39
Despite the
intentions of the principles and the action plan, both these instruments fall
into the category of “soft law” in that neither are legally binding and States
are under a moral as opposed to a legal obligation to follow their
recommendations regarding the treatment of older people. Both the International
Covenant on Social and Political Rights and the International Covenant on
Economic, Social and Cultural Rights are examples of “hard law” or legally
binding conventions which apply to people of all ages. Currently, there is no
legally binding international convention which obliges governments to realise
the rights of older people specifically, but at the time of writing (December
2011), this is under consideration.[79]
1.40
The
European Social Charter, adopted in 1961 and revised in 1996, was the first
human rights treaty to specifically protect the general rights of older people.
Article 23 concerns the right of elderly people to social protection and seeks
to ensure that older people remain full members of society for as long as
possible by means of adequate resources to help them play an active part in
public, social and cultural life. It also seeks to ensure that older people can
choose their life-style freely and lead independent lives in an environment
with which they are familiar for as long as they wish and are able to do so.
1.41
The general
principles of the European Convention on Human Rights are also relevant to the
rights of care recipients and have been considered by the courts in the context
of home care services. In the English case R (A and B) v East Sussex County
Council,[80] Munby J held that a “no
lift” ban would be in breach of the service user rights under the European
Convention on Human Rights. In this case, two sisters A and B, who were
profoundly disabled, and suffered from learning difficulties, successfully
applied (with the support of the British Disability Rights Commission) for a
declaration that East Sussex County Council’s (ESCC) virtual blanket “no manual
lifting policy” was illegal. The sisters lived with their parents in a house
which had been especially adapted. Under British legislation, they were
entitled to care from the local authority. As a result of some incidents, A and
B and their parents challenged the ESCC‟s policy of not permitting care staff to lift A and B manually.
1.42
Munby J
held that it was not “reasonably practicable” within the meaning of section 2
of the British Health and Safety at Work Act 1974 for the ESCC to avoid
the need for their employees to undertake manual handling of A and B
altogether. The Commission notes that section 2 of the British 1974 Act broadly
corresponds to section 8 of the Safety, Health and Welfare at Work Act 2005,
which also uses the legal standard of “reasonably practicable.” Munby J
accepted that the ESCC’s revised manual handling policy, which was presented to
the Court after the case had begun and which made clear that it did not have a
blanket no manual lifting policy, was lawful and “representative of good
practice.” It was therefore compatible with the British Manual Handling
Operations Regulations 1992, made under the 1974 Act,[81] and with the ECHR, which
had been implemented in the UK by the Human Rights Act 1998.
1.43
Thus, the
new policy of the ESCC shifted the dispute from being an issue about the
lawfulness of the ESCC’s alleged blanket no manual lifting policy, to being an
issue about whether A and B were entitled to be manually lifted by their
carers. Munby J held they were. He held that the British 1992 Regulations
established a clear hierarchy of safety measures but were a risk
reduction/minimisation regime and not “a no risk regime.” There was, he noted,
no “absolute prohibition on hazardous lifting.” Rather, the employer’s duty was
to avoid or minimise the risk in so far as is reasonably practicable. In the
case of A and B, and when considering the needs of those with a disability, the
term reasonably practicable must, he said, take account of the rights of disabled
persons in the ECHR. The reasonably practicable test must now, where the
disabled are concerned “be informed” by the ECHR.
1.44
Without
suggesting that the decision in the A and B case would necessarily be
followed if the same issue arose in Ireland, it is worth noting that Irish
courts are also required to take account of the ECHR because it too has been
implemented in Ireland by the European Convention on Human Rights Act 2003,
which is modelled on the UK Human Rights Act 1998. The Commission
returns to this specific issue in Chapter 2 of this Report, below.
1.45
The rights
of older people are also mentioned in the European Reference Framework, an
annex of a recommendation of the European Parliament which sets out policy objectives
for education and training and specifically refers to the need to ensure access
to education for older people.[82] The Framework recommends that the
differing needs of learners should be met by ensuring equality and access for
people who, due to educational disadvantages caused by personal, social,
cultural or economic circumstances, need particular support to fulfil their
educational potential. Examples of such people include those with low basic
skills, early school-leavers, the long-term unemployed and those returning to
work after a period of extended leave, older people, migrants, and people with
disabilities.[83]
1.46
Also of relevance is the European Reference Framework Online for the
Prevention of Elder Abuse and Neglect.[84] This is a
Pilot Project on preventing elder abuse and is being carried out under the
European Commission. Age Action Ireland is involved in the pilot and one of the
specific objectives of the project is to develop a European Reference
Framework, by way of establishing good practices and policies, for the
prevention of elder abuse. Nine European countries are participating in the
project and of all the countries involved, none has specific legislation
concerning elder abuse.[85] The
Framework document also notes that more than legislation is needed to combat
this form of abuse. There is a need for infrastructure, agreements, measures,
protocols, standards, networking, regulation and monitoring. The Framework
document also specifically notes that Ireland has a national policy for dealing
with elder abuse and a national definition, whereas many other European
countries do not.[86] The
definition of elder abuse adopted by Ireland, as set out in the report of the
Working Group on Elder Abuse, Protecting Our Future, is:
“A single or repeated act or lack of appropriate action
occurring within any relationship where there is an expectation of trust which
causes harm or distress to an older person or violates their human and civil
rights.’’[87]
1.47
In the Consultation Paper, the
Commission provisionally recommended that the Health Information and Quality
Authority (HIQA), which was established under the Health Act 2007 as the
regulatory authority for institutional care provision (whether in the public
and private sector), should also be empowered to regulate professional home
care providers.[88] This recommendation
would involve amending section 8(1)(b) of the Health Act 2007 to extend
the authority of HIQA to include the regulating and monitoring of professional
domiciliary care, home care, providers.
1.48
The
Commission notes that, since 2009, it has not received any submissions that
have taken a contrary view on this general recommendation, and that indeed the
developments discussed above indicate that policy initiatives since then have
gradually moved towards further (albeit non-statutory) regulation of this area.
The Commission also notes that these moves that have been supported by general
government policy and by the representative bodies of professional home care
providers. Moreover, the Commission also notes that debate in this area has, in
general, focused on whether the State is in a position from a financial
perspective to extend the statutory regulatory role of HIQA under the 2007 Act
and the extent to which the detailed standards and requirements of such a
statutory regime could be met by all home care providers.
1.49
The
Commission acknowledges that these policy issues, as with all such matters
which may arise on the decision to implement recommendations for reform, remain
ultimately a matter for the Government and the Oireachtas. Nonetheless, given
the broad consensus in favour of eventual regulation of professional home
carers, the Commission has concluded that it should confirm the main
recommendations made in the Consultation Paper.
1.50
Before
turning to set out its final recommendations on the proposed statutory
regulation of professional home care providers, the Commission notes that the
current HIQA registration and inspection system is based on three key elements:
(a) the general statutory framework in the Health
Act 2007 which sets out the powers of HIQA;
(b) the Regulation-making powers of the Minister for
Health in section 101 of the 2007 Act, under which detailed statutory duties
are imposed on designated centres such as nursing homes. These are currently
set out in the Health Act 2007 (Care and Welfare of Residents in Designated
Centres for Older People) Regulations 2009 and 2010;[89] and
(c) National Standards published by HIQA, which
provide further detail as to how registered centres are to comply with the
requirements of the ministerial Regulations made under section 101 of the 2007
Act. These include HIQA’s 2009 National
Quality Standards for Residential Care Settings for Older People in Ireland.[90]
1.51
The
Commission considers that these three key elements provide a suitable template
for the proposed regulatory framework for professional home care providers, to
which it now turns.
1.52
As already
mentioned, the Health Information and Quality Authority (HIQA), which was
established under the Health Act 2007, is responsible, under Part 8 of
the 2007 Act, for the registration and inspection of designated centres. A
designated centre notably includes institutions providing residential care,
such as nursing homes, whether private sector or public sector. The HIQA registration and inspection system for designated
centres came into force in 2009.[91]
1.53
Since the
introduction of this system in 2009, there have been repeated calls for the
regulation of professional care in the home and for the extension of HIQA’s
remit. Indeed, the Commission notes that section 8(1)(b) of the Health Act
2007 provides that one of the functions of HIQA is to set standards for
certain services provided by the HSE or a service provider who provides health
and personal social services on behalf of the HSE. A “service provider” is
someone who “enters into an arrangement...to provide a health or personal
social service on behalf of the [HSE].” While this general oversight function
in the 2007 Act could, arguably, be taken to include professional home care
provision, in reality it would not be possible for HIQA to exercise a suitable
regulatory role unless it was also empowered to register and inspect home care
provision in a manner that mirrors the current regulatory arrangements under
Part 8 of the 2007 Act for residential care centres, such as nursing homes.
1.54
In the
Consultation Paper the Commission noted that, while HIQA has the authority to
regulate certain institutional care providers under the Health Act 2007,
it does not have the authority to regulate professional home care providers.[92] The Commission
provisionally recommended that Section 8(1)(b) of the Health Act 2007 be
amended to extend the functions of HIQA to include the setting of standards in
relation to services provided by professional home care providers.[93] Submissions received by
the Commission welcomed the recommendation. It was thought that such a move
would go towards ensuring that people in receipt of care in the home receive
the same level of care and protection as people in residential care. Having
regard to the general comments made above, the Commission has concluded, and
recommends, that section 8(1)(b) of the Health Act 2007 be amended to
extend the functions of HIQA to include the setting of standards in relation to
services provided by professional home care providers.
1.55
The Commission recommends that
section 8(1)(b) of the Health Act 2007 be amended to extend the functions of
the Health Information and Quality Authority (HIQA) to include the setting of
standards in relation to services provided by professional home care providers.
1.56
In the
Consultation Paper the Commission noted that section 40 of the Health Act
2007 established the Office of the Chief Inspector of Social Services (the
Social Services Inspectorate “SSI”).[94] The SSI must register
and inspect the residential care services provided by all designated centres. A
designated centre is an institution at which residential services are provided
for children, older people and/or people with a disability, whether in the
public or private sectors, or a nursing home.[95]
1.57
The SSI
must establish a list of all registered designated centres. Under section 50 of
the Health Act 2007, registration is only granted once it is established
that the care provider is a fit person and that the centre is operated in a
manner that complies with relevant standards and regulations. In the
Consultation Paper the Commission provisionally recommended the amendment of
the definition of designated centre to include institutions involved in the delivery
or provision of home care services. This would extend the power of the SSI to
register and monitor home care providers.
1.58
In the
Consultation Paper the Commission was of the view that there is a need to
establish a register of all independent professional home carers. The
Commission was of the opinion that this would ensure that all professional home
carers are properly regulated by a particular body which would inspect each
provider to ensure compliance with standards and regulations.[96] The Commission is of
the view that the SSI should have overall responsibility for monitoring all
registered professional home carers. Any home carer convicted of an offence
under section 51(2) of the Health Act 2007 would have their registration
cancelled. The Commission thus recommends the amendment of the definition of
designated centres in section 2(1) of the Health Act 2007 to include undertakings
(both unincorporated and incorporated, and whether established for gain or not
established for gain) who are involved in the provision of professional home
care services. This would extend the power of the SSI under section 41 of the
2007 Act to register and monitor all home care providers. The Commission also
recommends that the SSI establish a registry of all professional home carers.
1.59
The
Commission recommends the amendment of the definition of designated centres in
section 2(1) of the Health Act 2007 to include undertakings (both
unincorporated and incorporated, and whether established for gain or not
established for gain) who are involved in the provision of professional home
care services. The Commission also recommends that the Social Services
Inspectorate (SSI) establish a registry of all professional home carers.
1.60
In the
Consultation Paper the Commission provisionally recommended that section 101 of
the Health Act 2007 be extended to confer the power to make regulations
in respect of professional home care providers on the Minister for Health and
Children.[97] The Consultation Paper
noted that under section 101 of the Health Act 2007 the Minister may
currently make regulations to ensure the proper maintenance, care, welfare and
well-being of persons resident in a designated centre. This recommendation was
met with wide approval during the consultative process. It was thought that the
extension of the regulation-making power would ensure that standards were set
and met. The Commission is of the opinion that the extension of section 101 of
the 2007 Act would ensure that home care is delivered in a professional manner
and ensure that people in receipt of professional care services in the home are
protected. The Commission thus recommends that the Ministerial
regulation-making power conferred on the Minister for Health by section 101 of
the Health Act 2007 be extended to include the authority to make
regulations in respect of professional home care providers.
1.61
The Commission recommends that the
Ministerial regulation-making power conferred on the Minister for Health by
section 101 of the Health Act 2007 be extended to include the authority to make
regulations in respect of undertakings involved in the provision of
professional home care services.
1.62
The
Commission now turns to the scope of what is involved in professional home
care. As previously discussed, the Commission is of the opinion that the
delivery of professional home care must be regulated and that this will involve
an extension of HIQA’s powers under the Health Act 2007. The World
Health Organization (WHO) has described home care as care which satisfies:
“people’s
health and social needs while in their home by providing appropriate and
high-quality home-based health care and social services, by formal and informal
caregivers, with the use of technology when appropriate, within a balanced and
affordable continuum of care.”[98]
1.63
Section
4(3) of the English Care Standards Act 2000 defines a “domiciliary care
agency” as a body which arranges for the provision of personal care in a
person’s home where they would not ordinarily be able to care for themselves
due to illness, infirmity or disability. While the 2000 Act provides no
definition of “personal care”, the English and Welsh National Minimum Standards
on Domiciliary Care, made under the 2000 Act, provide some guidance and
describes such care as follows:
·
Assistance
with bodily functions such as feeding, bathing and toileting;
·
Care
falling just short of assistance with bodily functions, but still involving
physical and intimate touching, including activities such as helping a person
get out of a bath and helping them to get dressed;
·
Non-physical
care, such as advice, encouragement and supervision relating to the foregoing,
such as prompting a person to take a bath and supervising them during this;
·
Emotional
and physiological support, including the promotion of social functioning,
behaviour management, and assistance with cognitive functions.[99]
1.64
Only the
first two points will give rise to the registration of a domiciliary care
agency and the National Standards also note that the courts are likely to
continue to shape the interpretation of “personal care” over time.[100] The issue of advocacy
services is specifically raised and the standards provide that service users
and their relatives or other representatives are to be informed about independent
advocates who will act on their behalf and they are also to be informed about
self-advocacy.[101] This is comparable to
the non-statutory guidance in Ireland, discussed below.
1.65
In
Australia, care provided at home is defined as “community care.”[102] Such care is described
as “care consisting of a package of personal
care services and other personal assistance provided to a person who is not
being provided with residential care.”[103] Care for older people who wish to remain at home is funded
through the Community Aged Care Packages (CACP) and the Home and Community Care
services (HACC).
1.66
CACPs are tailored to meet an individual’s
personal needs. They are provided to older people who require low level care in
order to remain living in their own home. On the other hand, the Extended Aged
Care at Home (EACH) and the Extended Aged Care at Home Dementia (EACHD) provide
care for older people who require high level care in order to remain living in
their own home. The HACC service provides the basic needs required to maintain
a person’s independence at home and in the community. The types of services
include community nursing, domestic assistance, personal care, meals on wheels,
home modification and maintenance, transport and community-based respite care.
1.67
As the
Commission has already noted, Ireland has a non-statutory system of home care
packages. In order to avoid any confusion, this Report defines such care as
home care and not domiciliary care. In its 2009 Report, the National Economic
and Social Forum (NESF) stated that home care packages may include “the
services of nurses, home care attendants, home helps and various therapies
including physiotherapy services and occupational therapy services.”[104] The Commission concurs
with this definition. The Commission is of the opinion that personal care which
is provided under the HSE home help service must come under the definition of
home care. This is to ensure that any person employed to provide a service to a
person in their home to enable them to remain living independently is subject
to the proposed regulations and standards. The Commission thus recommends a
definition of professional home care as services which are required to ensure
that a person can continue to live independently in their own home. This may
include, but is not limited to, the services of nurses, home care attendants,
home helps, various therapies and personal care.
1.68
An ageing
population is likely to lead to increased health services demands and also
increased needs for palliative care services.[105] Palliative care is
defined by the World Health Organisation (WHO) as:
“...an
approach that improves the quality of life of patients and their families
facing the problem associated with life-threatening illnesses, through the
prevention and relief of suffering by means of early identification and
impeccable assessment and treatment of pain and other problems, physical,
psychosocial and spiritual.”
1.69
In 2001,
95% of people in receipt of palliative care are suffering from cancer.[106] However, since 2001,
there has been a gradual increase in people suffering from renal, cardiac and
neurological diseases availing of palliative care. If this trend continues
demand for palliative care could increase by 80%.[107] GPs and public health
nurses are the main providers of palliative care in the home. However, there is no
formal framework to support the delivery of palliative care by primary care
teams in Ireland.[108] The palliative care team, also
known as the home care team, provides specialist support to patients, families
and to community based health care professionals.
Since 2006, the Irish Hospice Foundation (IHF) has provided a night nursing
service whereby people suffering from a non-malignant condition wishing to die
at home have access to a night nurse. The aim of the scheme is to respond to
the unmet palliative care needs of people suffering from a malignant condition
and to highlight awareness of this group’s needs. The service is funded by the
IHF but is provided by the Irish Cancer Society’s pool of nurses. However, the
IHF wishes to identify long-term funding options for the service. For people
suffering from a malignant condition, the Irish Cancer Society provides a
similar service.
1.70
The
Commission is of the opinion that palliative care is an important aspect of
end-of-life care. The Commission also notes that many people wish to die at
home.[109] To ensure that this
wish can be met, the Commission is of the opinion that palliative care must
come within the definition of professional home care. The Commission thus
recommends that palliative care be included in the definition of professional
home care.
1.71
The
Commission recommends that professional home care should be defined as services
which are required to ensure that an adult person can continue to live
independently in their own home. This may include, but is not limited to the
services of nurses, home care attendants, home helps, various therapies and
personal care. The Commission also recommends that palliative care be included
in the definition of professional home care.
1.72
Informal
carers play an important role in the provision of care in Ireland and around
the world. Informal care may be provided by a voluntary organisation or, more
likely, a family member. Indeed in British Columbia it has been estimated that
80% of care comes from informal carers. It is thought that if this informal
care were to be provided on a professional basis, the cost would amount to €2.5
billion each year.[110] Due to this high level
of informal care, the Department of Health has stated that professional home
care services must be seen to complement, rather than take over, the provision
of care in the home.[111] The provision of
informal care must thus remain part of any development of the provision of care
in Ireland. In recent years, the Department of Social Protection has provided
support for informal carers through the provision of the carer’s allowance,
carer’s benefit and the respite care grant.
1.73
Despite the
importance of informal care both to the people receiving care and the savings
to the Exchequer, the Commission notes that the regulation of informal care is
outside the scope of this project. The Commission notes that no financial
exchange occurs between a care recipient and an informal carer. Thus the
relationship and the arrangements involved in the provision of informal care
are substantially different from those that apply in the provision of
professional services. For this reason the Commission reiterates that informal
carers do not come within the scope of the recommendations contained in this
Report.
1.74
The Commission notes
that, while older people may well be the dominant users of professional home
care services, the need for such care is not confined to older people
and it also applies,
for example, to people with disabilities and those with chronic illnesses. The following are examples of the
types of situations in which professional home care
may be required by an adult person:
·
An adult
may require professional home care for a period of time, such as rehabilitation
services in the home after a car crash;
·
An adult
may develop a chronic illness during their life, such as MS, in which they may
need professional home care services to continue to live independently in their
home;
·
An adult
may have been born with a physical or mental disability and may require home
care services; and
·
An adult
may require professional home care services due to age related issues.
1.75
The purpose
of this Report is to recommend a regulatory scheme by which all adults may
continue to live independently in their homes should they wish to do so and in
so far as they are able. It is for this reason that the Commission recommends
that the proposed legislative scheme should not be limited to a specific age
cohort of adults, and that it should apply to professional home carers who
provide professional care services to adults aged 18 years and over in the
home.
1.76
The Commission recommends that the
proposed legislative framework should apply to undertakings who provide
professional home care to persons aged 18 years and over.
1.77
In this
Part the Commission outlines the principles which it considers should inform
the proposed legislative framework on professional home care in Ireland. In its
2003 Report Older People in Long Stay Care the Irish Human Rights
Commission noted that the “enumeration, clarification and implementation of
rights of vulnerable people ought to be a priority in a civilised society.”[112] The relevant principles
are: the promotion of independent living, privacy, dignity, quality of care and
the protection of vulnerable adults.
1.78
In a 2001
study by the National Council on Aging and Older People (NCAOP), it was found
that a large majority of older people wish to continue to live in their own
homes.[113] Government policy
supports older people to live in dignity and independence in their own homes
and communities for as long as possible.[114] Indeed, older people
have expressed a higher satisfaction rate when cared for at home in comparison
to older people cared for in institutional residences.[115] As many people get
older however, the likelihood of a person suffering from an age related
disability increases, thus requiring the need for home care. The home care
provided should not hinder but promote the independence of the care recipient
and enable them to live independently.”
1.79
The
Department of Health in England noted that the care provider provides
assistance to the care recipient and encourages the care recipient to maximise
their independence.[116] The care recipient must
thus be assisted in the performance of duties to ensure they may remain in
their homes. The care provider must not take over duties which the care
recipient does not require assistance with as this will increase independence
on the care provider.
1.80
The concept
of “assisted living” is an integral part of Canadian policy on long-term care.
Assisted living is a housing and care alternative for those who are no longer
able to continue living in their own homes, but who do not need the level of
care offered in residential care facilities. An assisted living residence
provides hospitality services such as meals, social and recreational
opportunities, and personal care in the form of assistance with activities of
daily living or medications.[117] Such residences enable
a person to retain a degree of independence in their daily lives.
1.81
What
independent living is will depend upon the person.[118] It may mean deciding
where one lives or choosing which care and support services a person receives.
Research has shown that if there is intervention at the correct time, the need
for intensive care later in life is lessened. While early assistance will help
ensure that a person will remain in their home, care must not be forced upon a
person.[119] Care must only be
provided to a person who has agreed to be the care recipient. It is thus of
importance that the care provider and care recipient discuss what type of care
the care recipient would like to receive. This will ensure that the care will
be individualised to suit a person’s needs and that a person exercises choice
and control over the type of care they receive.
1.82
The
promotion of independent living may influence the mechanism through which
professional home care services are offered. Many people seeking professional
home care may opt for a cash grant known as a direct payment, as this enables
the older person to choose who provides their care. This independence in
choosing their care provider may be considered very important by some older
people as the care provider will often assist a person in toileting, bathing,
dressing and other essential daily activities which up to this point will have
been conducted by the person themselves in private.
1.83
The
Commission is of the opinion that the promotion of independent living must
underpin any legislation concerning home care. While no one definition of
independent living is possible due to the diverse needs of care recipients, the
philosophy of independent living will ensure that a person is consulted on all
aspects of their care. The Commission is of the opinion that a person must have
control over the type of care they receive which will increase a person’s
independence rather than their dependence on their carer. The Commission thus
recommends that the principle of independent living should form part of the
legislative framework for professional home care.
1.84
The Commission recommends that a
guiding principle of the proposed legislative framework should be the principle
of independent living.
1.85
The type of
care which a person may receive in their home can vary from medical care to
personal care. In their review of home care packages in Ireland, the National,
Economic and Social Forum (NESF) stated that home care packages may include
“the services of nurses, home care attendants, home helps and various therapies
including physiotherapy services and occupational therapy services.”[120] The care provided may
also cover assistance in eating and the preparation of meals dressing and
undressing, bathing, washing and oral hygiene and assistance using the toilet.
Despite the level of care required, the privacy and dignity of the care
recipient must always be respected. Care providers may respect the privacy and
dignity of the care recipient:
·
Through
their general demeanour;
·
Through the
manner in which they address and communicate with the resident;
·
Through
their appearance and dress;
·
By avoiding
inappropriate comments or jokes;
·
Through
discretion when discussing the resident’s medical condition or treatment needs.[121]
1.86
As home
care is provided in the recipient’s private home, the care provider must
respect the care recipient’s personal belongings and the privacy of their home.
The care provider and care recipient must agree policies on when the care
provider can enter the house and on knocking before entering a room.[122] A balance, however,
must be struck with the need of easy access to the home in cases of emergency
and situations where the care recipient is not in a position to answer the
door.
1.87
The care
provider must also be able to respond to the varying domestic situations. For
example, the care recipient may be living with a spouse, family member or
friend. The provision of home care must not prevent the care recipient from
maintaining their social network outside the home, nor prevent them from spending
time alone.[123] Providing home care
must not erode the environment of the home or make family or friends residing
there uncomfortable.[124] Such relationships may
also have an impact on providing care in the home. While the carer must respect
the close relationships in the home, they must not divulge information to the
family or friends without the express agreement of the care recipient and the
confidentiality of the arrangements between the carer and the care recipient
must be maintained. Thus while respecting the privacy of the other residents of
the home, the primary duty of the care provider is to respect the privacy and
the dignity of the care recipient. The Commission recommends that the
principle of privacy and dignity should form part of the legislative framework
for professional home care.
1.88
The Commission recommends that
guiding principles of the proposed legislative framework should be the
principles of privacy and dignity.
1.89
The
Commission acknowledges that care provided within the private home of the care
recipient is more difficult to supervise than institutional care.[125] With more and more
older people wishing to remain in their homes and thus opt for home care, the
relatively unsupervised nature of this type of care must not result in a poor
quality service. In 2001, the National Health Strategy Quality and Fairness:
A Health System for You identified quality as a key principle and argued
that it should be embedded in the health system.
1.90
In the
context of the review of care plans, the National Quality Standards for
Residential Care Settings for Older People in Ireland provide that a resident’s
care plan must be updated as indicated by the resident’s changing needs,
circumstances, current health objectives and personal and social care and no
less frequently than at three-monthly intervals.[126] The Commission notes
the provisions made in the 2008 draft National Quality Guidelines for Home Care
Support Services regarding the review of the quality of care, which provide for
a six monthly visit to care recipients by a supervisor whereby the home care
support plan may be reviewed and the performance of the care provider
monitored. Regular supervision meetings between the line manager and the care
provider and an annual survey of all clients and/or their representatives were
also encouraged by the draft Guidelines.[127] The Commission
considers that a review of the quality of care is an integral part of home care
services and recommends that National Standards be introduced and implemented
to address this issue along the lines of the review of care plans provided for
by the National Quality Standards for Residential Care Settings for Older
People in Ireland.
1.91
In its
report on the implementation of home care packages, the NESF recommended that
professional carers should receive appropriate training where they are caring
for people with specific needs, such as palliative care. Similarly Part 4.1 of
the Australian Aged Care Act 1997 states that it is the responsibility
of the approved providers “to maintain an adequate number of appropriately
skilled staff to ensure that the needs of the care recipients are met.”
Ensuring that appropriately trained staff are employed will assist in ensuring
the quality of care delivered to each care recipient. The Commission is of the
opinion that the quality of care delivered must be of particular importance and
thus recommends that quality of care forms part of the guiding principles of
the legislative framework for home care.
1.92
The Commission recommends that a
guiding principle of the proposed legislative framework should be the principle
of quality of care.
1.93
The draft
Scheme of the Criminal Justice (Withholding of Information on Crimes against
Children and Vulnerable Adults) Bill 2011, published by the Department of
Justice and Equality in 2011, defines a “vulnerable adult” as a person of 18
years and older who does not have mental capacity or who is suffering from a
physical, intellectual or mental impairment, whether through disability,
injury, illness or age, which is of such a nature or degree as to render that
person unable to guard against neglect, abuse or exploitation or to require
assistance with the activities of daily living such as washing, dressing,
toileting or feeding. Protection of vulnerable adults must be to the fore when
considering professional home care.
1.94
As to protection
of at risk or vulnerable adults, two areas of law have particular relevance in
the context of the regulation of professional home care. These are the law and
policies on elder abuse and changes to the criminal law which are expected to
be introduced in the proposed mental capacity legislation in the near future
concerning the introduction of new offences of ill-treatment and wilful
neglect.
1.95
As regards
elder abuse, the 2010 NCPOP Report Abuse
and Neglect of Older People in Ireland[128] indicates that over 10,000 people in Ireland over
the age of 65 years experienced mistreatment in the one year period the subject
of the review. It is well established that the majority of elder abuse occurs
in the home.[129] It is
therefore of great importance to ensure that the increasing demand for home
care services will not lead to an increase in cases of elder abuse and it is
acknowledged that the protection of older people in receipt of home care is
more difficult to safeguard than older people in institutional residences.
There is therefore a real need for appropriate and robust standards to be put
in place to guard against such abuse in the home care setting.[130]
1.96
The
Commission is of the opinion that safeguards must be in place to ensure that at
risk or vulnerable people in receipt of professional home care are protected
from all types of abuse, including, but not limited to “physical, financial,
psychological, sexual abuse, neglect, discriminatory abuse or self-harm or
inhuman or degrading treatment through deliberate intent, negligence or
ignorance in accordance with written policies and procedures.”[131] The Report of the
Working Group on Elder Abuse has defined such abuse as:
“A single or repeated act, or lack of
appropriate action, occurring within any relationship where there is an
expectation of trust which causes harm or distress to an older person or
violates their human and civil rights.”[132]
1.97
In the
document No Secrets, the English Department of Health provided the following
extensive definition of abuse:
“(1)
Physical abuse, including hitting, slapping, pushing, kicking, misuse of
medication, restraint, or inappropriate sanctions;
(2)
Sexual abuse, including rape and sexual assault or sexual acts to which the
vulnerable adult has not consented, or could not consent or was pressured into
consenting;
(3)
Psychological abuse, including emotional abuse, threats of harm or abandonment,
deprivation of contact, humiliation, blaming, controlling, intimidation,
coercion, harassment, verbal abuse, isolation or withdrawal from serious or
supportive networks;
(4)
Financial or material abuse, including theft, fraud, exploitation, pressure in
connection with wills, property or inheritance or financial transactions, or
the misuse or misappropriation of property, possessions or benefits;
(5)
Neglect and acts of omission, including ignoring medical or physical care
needs, failure to provide access to appropriate health, social care or
educational services, the withholding of the necessities of life, such as
medication, adequate nutrition and heating; and
(6)
Discriminatory abuse, including racist, sexist, that based on a person’s
disability, and other forms of harassment, slurs or similar treatment.”[133]
1.98
The HSE Draft Quality Guidelines on Home
Care Support Services define elder abuse as “verbal, physical, financial,
psychological, sexual abuse, neglect, discriminatory abuse or inhuman or
degrading treatment or restraint through deliberate intent, negligence or
ignorance in accordance with written policies and procedures. This also
includes acts of omission. It is the responsibility of all Home Care Support
Workers and service providers to safeguard clients from this abuse.”[134]
1.99
The
Commission now turns to the question of the introduction of offences of
ill-treatment and wilful neglect. It appears that the proposed mental capacity
legislation will make it an offence to ill-treat or wilfully neglect a person
whose capacity is absent or limited.[135] In terms of those who could be prosecuted for the offence
of ill-treatment or wilful neglect, it is anticipated that the proposed mental capacity legislation will apply to anyone caring for a person who
lacks capacity – this includes family carers, healthcare and social care staff
in hospitals or care homes and those providing care in a person’s own home. This aspect of the proposed legislation is modelled on
section 44 of the Mental Capacity Act 2005, which has been in force in
England and Wales since 2007. According to the Code of Practice accompanying
the 2005 Act, the type of ill-treatment which may result in prosecution can be
either deliberate or reckless. Also, it does not matter for the purposes of
prosecution whether the ill-treatment actually caused harm to the person being
cared for. In other words, if the treatment in question was likely to cause
harm, that in itself may be sufficient to ground a prosecution. As regards the
offence of wilful neglect, the Code of Practice accompanying the 2005 Act makes
it clear that this offence consists of a deliberate failure to carry out an act
the defendant knew they had a duty to perform.
1.100
The
Commission is of the opinion that the protection of adults in receipt of home
care must be of the utmost importance through all aspects of the delivery of
the service. Care providers must thus be sufficiently vetted to ensure that appropriate
people only are employed to work in the homes of vulnerable adults. In addition
to wilful neglect and ill-treatment of adults receiving home care services, the
Commission is also of the opinion that abuse may be attributable to inadequate
care due to insufficient training. Care providers must thus be sufficiently
trained and receive ongoing training to ensure that they understand what is
meant by abuse in this context and that they can meet the needs of care
recipients through the implementation and use of appropriate policies on the
prevention, detection and response to abuse. Policies and Standards which may
be in place for home care must ensure the protection of people in their homes.[136] It is for this reason
that the Commission recommends that the protection of adults in receipt of home
care be a guiding principle of the legislative framework for the provision of
this type of care.
1.101
The
Commission recommends that a guiding principle of the proposed legislative
framework should be the protection of adults in receipt of professional home
care.
2
2.01
In this
chapter the Commission considers the type of national care standards which
should underpin the contract for care between the professional carer and
recipient, the contracting arrangements and the proposed protective measures.
In Part B the Commission discusses the existing guidelines of relevance to home
care packages in Ireland at present and the need for standards to govern the
delivery of professional home care. In Part C the Commission examines the
contract for care and the composition of the care contract. Part D focuses on
the various contracting arrangements which may arise under a home care
agreement. Finally, in Part E the Commission discusses the various protective
measures to protect older people in receipt of care in their home.
2.02
In 2008 the
Health Service Executive (HSE) published draft National Quality Guidelines
for Home Care Support Services.[137] These draft guidelines
were compiled by the HSE Expert Advisory Group on Services for Older People
with the aim of minimising risk to older people in a home care setting. The
2008 draft guidelines are grouped into five sections: rights, protection, staffing,
home care support needs (which include needs assessments and guidance in
respect of medication management) and finally, governance and management.
2.03
The draft
guidelines are comprehensive and deal with a diverse range of matters[138] pertaining to the care
of older people. The Commission again reiterates its position that the
regulation of professional home care should cater for all adults requiring this
service and not be limited to older people. However, the Commission is of the
view that the draft guidelines could form the basis for national standards for
professional home care, although additional provision would have to be made to
ensure the protections afforded by the draft guidelines were extended to all
adults in need of professional home care.
2.04
The
Commission considers the 2008 draft guidelines should form the basis for
national standards on the provision of professional care in the home. The
development of such national standards for home care are integral to the
Commission’s recommendation that the statutory remit of the Health Information
and Quality Authority (HIQA) be extended to include the regulation of
professional home care providers. The Commission therefore recommends that the
HSE’s 2008 draft National Quality Guidelines for Home Care Support Services should
form the basis for national standards on the provision of professional care in
the home to be prepared by HIQA under the Health Act 2007.
The Commission also recommends that the proposed national standards should
provide guidance on all aspects of professional care in the home, including the
detailed requirements derived from the necessary
ministerial Regulations on professional home care to be made under section 101 of the Health Act 2007
(as amended in accordance with the recommendations made in this Report), any
protective measures necessary and, importantly, the sanctions that will apply
in the event of a breach of the standards. The Commission also recommends that
the National Standards form the basis for the individual contract of care
between the professional care provider and the care recipient..
2.05
The
Commission recommends that the Health Service Executive’s 2008 draft National
Quality Guidelines for Home Care Support Services should form the basis for
National Standards for Professional Home Care to be prepared by HIQA under the
Health Act 2007. The Commission also recommends that the proposed National
Standards should provide guidance on all aspects of professional home care,
including the detailed requirements derived from the necessary ministerial
Regulations on professional home care to be made under section 101 of the
Health Act 2007 (as amended in accordance with the recommendations made in this
Report), any protective measures necessary, and the sanctions that will apply
in the event of a breach of the National Standards. The Commission also
recommends that the National Standards form the basis for the individual
contract of care between the professional care provider and the care recipient.
2.06
In this
section the Commission explores the content of the contract for care between
the professional carer and recipient. In the Consultation Paper the Commission
noted that, in order to ensure a high standard of care for people receiving
professional care in their home, a contract for care should be in place. The
Consultation Paper envisaged that this contract for care would set out the
various terms and conditions for the provision of care.[139] The contract for care
would be a guide for both professional home care providers and care recipients
as it would identify the services to be provided, who is to provide them and
how they are to be provided. As already noted, the Commission considers that
each stage of drawing up the contract for care must be informed by the proposed
National Standards.
2.07
In the Commission’s view, before drawing up
the care contract, an assessment of need should be carried out. An assessment
of needs ensures that care recipients are provided with care appropriate to
their needs. It may also have the benefit of preventing unnecessary admission
to hospitals and residential care. It is thus important that the assessment of
needs is conducted by people who are sufficiently trained to do so before home
care begins.[140] The Commission notes that the 2008 draft Guidelines
provide for a home care support needs assessment but does not address the issue
as to who should carry out the assessment. The Commission is of the view that
this is an important issue.
2.08
In Australia, the Aged Care Assessment and
Approval Guidelines, made under the Aged Care Act 1997, provide
information and guidance to an Aged Care Assessment Team (ACAT) who approve
residential, community or flexible care under the 1997 Act. The ACAT assesses
the needs of older people and takes account of the restorative, physical,
medical, psychological, cultural and social dimensions of their care needs. In
assessing their needs, the ACATs can involve the older person, their carers,
GP, family and their service providers.[141] Under section 22(4) of the 1997 Act, care cannot be
provided unless a person has been assessed.
2.09
During the assessment process the ACAT must
determine all of the person’s needs and the type of services which would be
best suited to meet those needs. The ACAT must also consider the person’s usual
accommodation arrangement, financial circumstances, access to transport and
community support systems. Once this assessment is complete and a person’s care
needs are determined, a care plan is drawn up.[142]
2.10
The Australian Aged Care Assessment and
Approval Guidelines make it clear that there must be ongoing assessment to
ensure that the care is provided in response to the needs of the older person.
This includes:
·
The person’s medical condition (this must be
assessed by a health care professional);[143]
·
The physical capability of the person to
perform everyday tasks. This includes mobility, ability to maintain personal
hygiene, eating and drinking, their level of independence and their ability to
manage health conditions;[144]
·
The mental capacity of the person;[145]
·
The support the person has, including family,
carers, neighbours and friends;[146]
·
The person’s living environment and its
suitability;[147]
·
The care preferences of the older person.[148]
2.11
In 2002, the Mercer Report on the future
financing of long-term care in Ireland noted that the assessment of needs for
older people and people with disabilities is carried out by a number of
different State organisations who use differing assessment procedures.[149] The 2002
Report recommended that national guidelines be established to measure
dependency and entitlement to benefits and services. These guidelines should:
·
develop appropriate standardised assessment
tools;
·
provide a comprehensive and quantified scale
of assessment for disability as well as housing and social circumstances;
·
designate the appropriate care settings for
the various categories of assessed need.[150]
2.11 The 2009 PA Consulting Group’s Evaluation of Home
Care Packages has noted that the absence of a standard needs assessment for
home care packages has led to inconsistency and duplication.[151] As referred
to in Chapter 1, the Commission welcomes the proposed adoption by the Health Service
Executive (HSE) of the interRAI suite of tools for the assessment of the care
needs of individuals requiring professional care. Were the interRAI tools to be
adopted, this would provide a standardised assessment tool to be applied in
ascertaining the care needs of individuals requiring health and social care
services in Ireland and such a move would remedy some of the deficiencies and
duplications of effort identified in the Mercer Report.
2.12
In 2009, the Health Information and Quality
Authority (HIQA), in accordance with the Health Act 2007, published
the National Quality Standards for Residential Care Settings for Older People
in Ireland, which conform to the model recommended in the 2002 Mercer
Report in terms of assessment of needs. The 2009 Standards require that each
resident must have their needs assessed before they move into residential care.
The resident’s health, personal and social care needs must be assessed and the
resident must participate in the assessment. The assessment must be carried out
by a person who is appropriately trained to do so.[152]
2.13
The Commission notes that that the Common
Summary Assessment Report Guidance Document[153]for assessment for residential care highlights the need for
a CSAR to combine assessment information from various sources, thereby creating
a single, permanent and transferable record of the information relevant to a
decision on an individual’s care needs at a given point in time. A completed
CSAR must also clearly show why long term residential care is, or is not,
required.
2.14
The 2008 draft HSE Guidelines mirror the 2009
HIQA Standards and require that the care recipient and their personal or family
carers be assessed before a person is offered a home care support service. The
Commission has already recommended in this Report that the 2008 draft HSE
Guidelines should form the basis for the proposed national standards. The
Commission supports the view in the 2008 draft HSE Guidelines that the person’s
ability to carry out the activities of daily living, personal care and physical
well-being, family involvement and mental health must be assessed. The
Commission considers that a thorough assessment of needs must be conducted,
using a standardised assessment tool so as to avoid duplication of assessments,
in order to ensure that the actual needs of the person to receive the care are
met.[154] The personal contribution of the proposed care recipient
during the assessment of needs is essential to ensure that all aspects of a
person’s care needs are assessed and not simply those needs which a
professional person may consider ought to be assessed. This will ensure there
is a holistic approach to the assessment of needs. The Commission is
aware that the HSE Integrated Services Directorate (ISD) Older People Care
Group Team established a Single Assessment Tool (SAT) Working Group in 2010 to
“select, pilot and recommend a single assessment tool or suite of tools to be
utilised for the assessment of older people nationally.” The aim of the
initiative includes the requirement to have the needs of older people met in
the most appropriate setting, to provide care that is properly co-ordinated to
support quality and efficiency and to support current national policy on
enabling older people to remain at home in independence for as long as
possible.
2.15
The Commission notes the observations of the
Law Commission for England and Wales that focusing exclusively on the needs of
a person may result in neglecting the care outcomes that a person may wish to
achieve.[155] The English Law Commission was concerned that examining
the needs of a person exclusively may fail to identify the manner in which the
person wishes to have their care delivered. This Commission concurs that it is
important that the person be involved in their needs assessment – not simply in
discussing their needs but also in terms of identifying the person’s individual
characteristics in terms of physical ability, mental health, cognitive status
and any other relevant information relevant to their individual needs. This
will also assist in identifying how the person wishes to have their needs met.
Their involvement will ensure that the care they need is understood as well as
the manner in which they wish to have this care delivered. For this reason, the
needs assessment proposed by the Commission considers both the required needs
and the outcomes desired by the person. The Commission thus recommends that an
assessment of needs of the care recipient must be carried out prior to the
provision of care.
2.16
The Commission recommends that an assessment
of needs of the care recipient must be carried out prior to the provision of
care and that the assessment considers both the needs of and the outcomes
desired by the care recipient.
2.17
The Commission acknowledges that the care
required may range from basic assistance with household tasks through to high
level care that could include assistance with medication. The Commission thus considers
that care needs should be assessed under the following headings: companionship,
home care and advanced home care.[156] Companionship needs may include preparing snacks or light
meals, monitoring diet and eating, arranging appointments, reminders for
medication, overseeing home deliveries and organising visits to neighbours and
friends. Home care may include meal preparation, light housekeeping, providing
transport, assisting with walking and exercise, assisting with personal hygiene
and dressing. Advanced home care involves the highest level of care and may
involve some health care. It may include personal care, respite care, dementia
care, early Alzheimer’s care, assistance with toileting and palliative care.
2.18
The Commission considers that examining a
person’s needs under companionship needs, home care needs and advanced home
care needs will ensure that their needs are adequately assessed and the
appropriate level of care is provided. It is important that the level of care
should be appropriately attuned to the actual needs of the person and that
special care is taken to ensure that the level of care provided is not too high
because to do so may negatively impact on a person’s independence and cause him
or her to become overly dependent on the carer. Analysing a person’s needs in
this way will also identify those most suitable to provide the required care.
Such a process will ensure that care is focused on the needs of the person
which will help promote their independence.
2.19
The Commission recommends that care needs
should be assessed under the following headings: companionship needs, care
needs and the advanced home care needs of the care recipient. Companionship needs may include preparing snacks,
monitoring diet and eating, arranging appointments, reminders for medication,
overseeing home deliveries and organising visits to neighbours and friends.
Home care may include meal preparation, light housekeeping, providing transport,
assisting with walking and exercise, assisting with personal hygiene and
dressing. Advanced home care involves the highest level of care and may involve
some health care. It may include personal care, respite care, dementia care,
early Alzheimer’s care, assistance with continence and toileting and palliative
care. The Commission also recommends that the level of care should be
appropriately attuned to the actual needs of the person and that especial care
is taken to ensure that the level of care provided is not too high, thereby
promoting the autonomy and independence of the care recipient to the fullest
degree.
2.20
Once the
care needs of a person are determined, their financial situation must be assessed.
This will determine the amount the person will be expected to pay and will also
determine what type of care will be available to them. Under the current system
of entitlements, the Home Help Service provided through the Health Service
Executive (HSE) is generally free to medical card holders. However, people may
be asked to contribute towards the cost of the service. When an application for
the service is received, the HSE may take income, the degree of family support
available, remoteness from services and the availability of suitable people to
provide the service into account. If the care recipient requires palliative
care in the home, the Irish Hospice Foundation and the Irish Cancer Society
provides this service. Palliative care is provided free of charge by both
organisations as care is provided based on need and not on ability to pay.[157]
2.21
Home Care
packages, on the other hand, may prove problematic as regards funding. While
guidelines were drafted in 2008 regarding means testing and the value of the
home care package a person could receive, these guidelines did not become
operational. Thus, each local health office (LHO) devised differing guidelines
to address this deficit. This led to policies differing depending on the part
of the country the person resides.[158] Depending on the LHO a
person may reside in, income, savings and family support may be taken into
consideration when accessing eligibility.[159] Hence, due to the
varying approaches to means testing, there was no uniformity across the country
as to how the home care service was provided or as to whom was eligible to
receive the service and at what cost to themselves, if any. While the 2008
draft Guidelines were not implemented, as previously mentioned, in 2010 the
Health Service Executive (HSE) introduced National Guidelines and Procedures
for Standardised Implementation of the Home Care Packages Scheme.
2.22
Pursuant to
the 2010 HSE Guidelines, the care delivered will depend on the funding
available. As regards the funding of home care services generally, the
Commission notes that if the person who is seeking the service is capable of
paying for the care themselves, then they should have access to care for which
they are willing to pay and if they require help from the HSE in obtaining
those services, this help should be available to them by the HSE acting as an
intermediary. However if the care is fully or part funded by the State, the
care available to an intended care recipient will depend on the funding
available. While the needs assessment will determine what care a person
requires, the assessment of funding will indicate what funds can be provided.
This will then determine what care can actually be provided. The Commission
thus recommends that an assessment of funding be conducted to determine who is
paying for the care and what care can be provided. The Commission returns in
Chapter 4, below, to the wider policy issues concerning future funding of
professional home care.
2.23
The Commission recommends that an
assessment of funding be conducted to determine who is paying for the
professional home care and what care can be provided.
2.24
Before
professional home care begins, a risk assessment should be carried out in order
to anticipate how to prevent and manage the potential risks to both the care
recipients and care provider. Under the 2009 HIQA National Quality Standards
for Residential Care Settings for Older People in Ireland, a risk
assessment is carried out on admission to the residential care setting. This
must be reviewed every three months or as the resident’s needs change.[160] The approach to risk
assessment advocated by the National Quality Standards for Residential Care
Settings for Older People and the provisions set out in that document
regarding risk may also be applicable in the provision of professional home
care, particularly the provisions pertaining to the risks associated with the
self-administration of medication.[161]
2.25
The
Northern Ireland Domiciliary Care Agencies Minimum Standards, made under
the Health and Personal Social Services (Quality, Improvement and
Regulation) (Northern Ireland) Order 2003, require that the domiciliary
care agency and the professional home care provider have procedures in place to
ensure that its staff are aware of their health and safety obligations.[162] Staff must be provided
with training to cover, amongst other matters, accident prevention, fire safety
awareness, food hygiene and manual handling.
2.26
The
Commission considers that the detection of risk should not be a once-off
process but must be ongoing. Any problems identified by the home care provider
or the home care recipient must be logged. This log will then ensure that
problems are not ignored but remedied and avoided in the future.
2.27
The
2008 HSE Draft Guidelines require the service provider to ensure that a risk
assessment is conducted which must be carried out by “a trained person”.[163] The Commission has
already recommended in this Report that the draft Guidelines should form the
basis of the proposed national standards. The proposed standards would detail
the process which must be followed when carrying out the risk assessment. The
Commission thus recommends that the proposed National Standards should provide
that, prior to the commencement of professional home care, a risk assessment
must be carried out and that the risk assessment must be reviewed on an ongoing
basis.
2.28
The Commission recommends that the
proposed National Standards should provide that, prior to the commencement of
professional home care, a risk assessment must be carried out and that the risk
assessment must be reviewed on an ongoing basis.
2.29
Following
the assessment of needs, funding and potential risks, the Commission considers
that a care plan should be drawn up. This care plan will detail what care is to
be provided, who will provide the care and the hours of care to be provided. It
will also detail any responsibilities the person themselves and, where
relevant, their family may have in the provision of care. This care plan should
be kept under review and altered to meet the changing needs of the care
recipient.
2.30
The
Commission is aware that in the in-patient setting, Irish hospitals follow the
Roper-Logan-Tierney model of nursing.[164] This model forms a type
of check list in which the admitting nurse assesses a patient, thus leading to
the drawing up of the care plan.
2.31
Under the
English Domiciliary Care Agencies Regulations 2002, made under the Care
Standards Act 2000 and the Northern Ireland Domiciliary Care Agencies Regulations (Northern Ireland)
2007, made under the Health and
Personal Social Services (Quality, Improvement and Regulation) (Northern
Ireland) Order 2003, a written plan known as the “service user plan” must be prepared after
consultation with the service user. This plan must specify the needs of the
service user and how those needs will be met by the provision of personal care.[165] It is the duty of the
domiciliary care agency to ensure that the personal care provided meets the
needs of the person in the care plan.[166] The service user plan
must be made available to the service user and it must be kept under review.
2.32
The 2009
HIQA National Quality Standards for Residential Care Settings for Older People
in Ireland require that each resident have an individual care plan which is
developed and agreed with the resident or their representative. The care plan
must reflect the assessment of need and ensure that all aspects of the health,
personal and social care needs of the resident are met. Each resident or their
representative must have access to the care plan which is updated every three
months or as the care needs of the resident changes.[167]
2.33
The
Commission considers that a template of a care plan is necessary. It may be
similar to the template suggested when completing the assessment of need. Thus
the care to be provided under the care plan may be completed under the headings
of companionship care, home care and advanced home care. Such a template should
be part of national standards on home care and provide guidance when the care
plan is drawn up. The care plan should document the care needs and how they are
to be met. It should also document the amount of hours in which the care will
be provided each week. The amount of care needed should be measured against the
hours available. This will identify any gaps in the service which should also
be documented. The care plan should be drawn up by the service provider in
conjunction with the care recipient. The care plan must be agreed by both
parties and should outline the tasks which will be undertaken by the care
recipient and their family. The Commission considers that detailing the tasks
to be carried out by the care recipient is important in order to maintain their
independence, mobility, activity and mental stimulation. Such processes will be
detailed in the proposed national standards.
2.34
It is also
important to note that a report examining the organisation of home help
services in Ireland noted that the majority of older people surveyed stated
that they would want one person to provide their care.[168] The report noted that
many older people saw their home help as a friend, confidant and companion and
not just someone who provided meals or helped them with their personal hygiene.[169] While additional
training may ensure that one carer may meet all the care requirements in some
cases, it may not be possible to have only one carer providing the service in
many cases because of the complex care needs of people receiving professional
home care and because of the hours of work involved in providing the care. The
Commission considers that, where possible, a team of people should be involved
in the care of the person. This will ensure the continuity of care where one
carer may be ill or on holidays. It also ensures that the care recipient is
familiar with their carers if one carer is not available.
2.35
The Commission is also
concerned in this context that if the care recipient has made an advance care
directive,[170]
this should be discussed in the completion of the care plan. An advance care
directive is an advance expression of the wishes of a person in the health care
or wider setting. The advance care directive should be outlined in the care
plan to ensure that the directive is both understood and followed. In
its 2008 Consultation Paper, the Commission recommended that “an appropriate
legislative framework should be enacted for advance care directives, as part of
the reform of the law on mental capacity.”[171] In its 2009 Report, the Commission made a number of
recommendations concerning Advance Directives and included a draft Mental
Capacity (Advance Care Directives) Bill which makes provisions for
definitions of advance care directives, appointment of health care proxies in
assisting with such decisions, and provision for the publication of Codes of
practice and the power of the Court to determine the existence, validity and
applicability of such directives. The Commission looks forward to the
introduction of this legislation.
2.36
The
Commission recommends that a care plan be drawn up on completion of the needs
assessment, the assessment of funding and risk assessment. The care plan should
detail the companionship plan, the home care plan and advance home care plan.
The content of the care plan and the review process should be informed by the
proposed national standards.
2.37
The Commission recommends that a
care plan be drawn up on completion of the needs assessment, the assessment of
funding and risk assessment. The care plan should detail the companionship
plan, the home care plan and advance home care plan. The Commission also
recommends that the detailed content of the care plan and the review process
should be set out in the proposed national standards for professional home care.
2.38
The
Commission considers that every professional home care provider must have in
place a clear complaints procedure. This procedure must be communicated to and
understood by the person in receipt of care. The Commission concurs with the
requirement in the English Domiciliary Care-National Minimum Standards which states that there should be:
“an easily understood, well publicised
and accessible procedure to enable service users, their relatives or
representative to make a complaint and for complaints to be investigated.”[172]
2.39
Part 12 of the Health Act 2007 (Care and
Welfare of Residents in Designated Centres for Older People) Regulations 2009[173]
sets out an internal complaints procedure
for persons seeking, receiving or having received services in a designated
centre. Under the previously existing legislation, a mechanism for the making
of complaints existed but it provided only for the making of a complaint to the
relevant health board or the Health Service Executive (HSE) rather than to a
member of staff at the nursing home. The 2009 Regulations superseded the Nursing
Homes (Care and Welfare) Regulations 1993 which had provided that
the complaints procedure provided for did not encompass any mechanism for the
making of an internal complaint.[174] Part 12 of the 2009 Regulations represents an improvement
in quality of care for people receiving nursing home care in that it affords
them the benefit of a statutory procedure for the airing of grievances
internally in circumstances where no such formal mechanism existed under the
preceding laws and it imposes a duty on registered providers of nursing homes
to investigate all complaints, not simply written complaints.
2.40
The
Commission notes that the draft 2008 HSE guidelines require a service provider
to ensure that there is an easily understood, well publicised and accessible
complaints procedure.[175] In addition, the HSE
have in place a complaints policy manual entitled “Your Service, Your Say”[176]. The manual outlines a
complaints procedure available to all people who have used HSE services or
sought such services, close relatives or carers of any such person who have
consent to act on their behalf or the close relatives or carers of a deceased
person who had used or sought services. This complaints procedure was
put in place as a statutory obligation under the Health Act 2004.[177]
2.41
The
Commission considers it essential that a complaints procedure be put in place
by each professional home care service provider, and that the complaints
procedure should be informed by the proposed national standards for
professional home care. The Commission thus recommends that all home care
service providers make available an easily understood, well publicised and
accessible complaints procedure, informed by the proposed national standards.
2.42
The Commission recommends that all
professional home care service providers make available an easily understood,
well publicised and accessible complaints procedure, informed by the proposed
national standards for professional home care.
2.43
As the
Commission has previously noted, 85% of cases of reported elder abuse in 2008
occurred within the home. Similarly, the 2008 draft HSE National Quality
Guidelines for Home Care Support Services note that elder abuse does not
have to be extreme or obvious but can be unintentional, insidious and the
cumulative result of ongoing bad practice.[178] The Commission is thus
concerned that a number of protective measures must be in place to guard the
person in receipt of care from abuse. Such measures will not only protect the
person receiving care from abuse but also the care provider from allegations of
abuse.
2.44
Under the
English Domiciliary Care Agencies Regulations 2002, the domiciliary care
agency must have in place procedures in which a domiciliary care worker may
administer medication and circumstances under which the domiciliary care worker
may handle money on behalf of the service user.[179]
2.45
In line
with the general principle recommended as part of the proposed legislative
scheme, the Commission is of the opinion that protection of adults in need of
professional home care from all forms of abuse and exploitation must be to the
fore in the care contract. In terms of what is meant by “abuse” in this
context, the Commission reiterates that the user of professional home care
services will not always be an older person (i.e. a person over 65 years of
age) but recognises that a high proportion of the people in receipt of such
services will fall into that category. Hence, definitions of elder abuse may be
helpful in terms of providing a description of the types of abusive behaviour
and acts that people in receipt of home care services need to be protected
against. According to the 2010 Open Your Eyes Report, a HSE
report on the workings of the HSE elder abuse services for that year, financial abuse is one of the most common
abuse types referred to HSE Senior Case Workers.[180] In this regard, the Commission considers that
the protective measures adopted in the professional home care sphere must also
address financial protection as well as any relevant health and safety work
practices that it may be necessary or prudent to adopt.
2.46
While the
vast majority of people who provide professional home care do so in a caring,
competent and professional manner, the Commission considers that the protection
of adults receiving professional home care must be a foremost consideration.
The Commission considers it important that a home care provider must have
procedures in place to prevent abuse, ill treatment or neglect from occurring.
Every staff member should be trained not only in the prevention of abuse but
also trained to identify the signs or indicators of abuse.[181] Again, the 2009 HIQA National
Quality Guidelines for Residential Care Settings for Older People may be
relevant to the approach to abuse to be adopted in the home care setting.[182]
2.47
Also, the
2002 Report of the Working Group on Elder Abuse considered that every service
organisation’s employee, agent, contractor and service user must be able to
identify elder abuse and report their concerns. The Working Group was of the
opinion that procedures and policies should be in place on elder abuse. The
Working Group recommended that procedures should include:
·
A statement
of specific roles and responsibilities, authority and accountability (to ensure
that all staff understand their role and their limitations;
·
A statement
of the procedures for dealing with allegations of abuse, including those for
dealing with emergencies;
·
Contact
details of those to whom an allegation should be referred, inside and outside
normal working hours;
·
Details of
inter-service communication channels and procedures for decision-making;
·
A statement
indicating what to do in the event of a failure to take necessary action;
·
A list of
sources of expert advice;
·
A list of
services that might offer advice and support to older people.[183]
2.48
The 2009
HIQA Standards require a policy for the prevention, detection and
response to abuse to be drawn up within each residential care setting.[184] The policy must outline
procedures for the prevention of abuse, responding to suspected cases of abuse,
allegations or evidence of abuse and procedures for reporting concerns or
allegations to the HSE, the Garda Síochána and the Chief Inspector of Social Services.
The policy must be reviewed annually.[185] The Commission
considers that similar standards should be in place to ensure that people in
receipt of professional care in their home are protected from all forms of abuse.
2.49
The
Commission agrees with the approach of the Working Group on Elder Abuse and
considers that all allegations of abuse must be taken seriously. The procedure
for dealing with allegations of abuse in the home must also be clear to all
services users. The Commission also endorses the HSE 2008 draft guidelines
which state that procedures must be in place for the prevention of abuse,
responding to suspicions, allegations or evidence of abuse or neglect and
reporting concerns or allegations to the HSE or the Gardaí.[186] The Commission
considers that the detection of abuse must be to the fore. While such policies
are important, the Commission is of the view that the policies must be informed
by the proposed national standards. This will ensure that policies are
standardised and that older people receive the highest protection from abuse
irrespective of the care provider. The Commission thus recommends that the
professional home care service provider have policies in place to ensure that
care recipients are protected from all forms of abuse and that those policies
are informed by the proposed national standards.
2.50
The Commission recommends that a
professional home care service provider must have policies in place to ensure
that professional home care recipients are protected from all forms of abuse
and also recommends that those policies are informed by the proposed national
standards.
2.51
According to the TILDA
study, the vast majority of older adults in Ireland use medications regularly
and rates of polypharmacy are high.[187]
One in five adults over 50 years of age takes 5 or more medications.[188]
This proportion rises to almost one in two for those aged 75 years and older.[189]
Appropriate medication can be an important and crucial part of ensuring that
individuals continue to enjoy a full, and extended, high-quality life at home.[190]
Medication use in older adults is a particularly significant issue, both
because of increasing numbers of medications and age-related physiological
changes which predispose older people to side effects.[191]
As regards the misuse of medication in the home care setting, the Commission notes
that abuse can occur when medication is overused or underused. Misuse of
medication also includes the use of medication for the wrong reason or for a
different purpose to its indication.[192]
Over-prescription of medication can be used as a tool for managing patients in
receipt of care. It is often thought that over prescribing of anti-psychotic
drugs makes the management of patients easier.[193]
2.52
In the UK, the years
between 1999 and 2002 saw a 6.2% increase in community prescriptions of
anti-psychotic drugs.[194]
Over-prescribing drugs is thus clearly a form of physical abuse.[195]
Anti-psychotic medicines are used to manage the behavioural and
psychological difficulties experienced by many dementia patients such as
agitation, aggression, wandering, shouting, repeated questioning and sleep
disturbance.
2.53
This form of chemical restraint may be in breach of both the National
Quality Standards for Residential Care Settings for Older People and the Health
Act 2007 (Care and Welfare of Residents in Designated Centres for Older People)
Regulations 2009, as amended. It may also be incompatible with Government
policy on restraint. Both the 2009 Regulations and the Standards require that
residents are protected from all forms of abuse, including misuse of restraint.
Furthermore, a 2011 report produced by the Department of Health, Towards a
Restraint Free Environment in Nursing Homes, noted that while the use of
anti-psychotic medication may in certain cases be appropriate for the treatment
of a condition or a reduction of the symptoms, this does not constitute
restraint and that the use of “chemical restraint is always unacceptable”.[196]
That report set out the Government’s policy on restraint as being:
“To eliminate the use of restraint or where this is not
possible, to restrict the use of all forms of restraint to those exceptional
emergency situations where it is absolutely necessary. Where restraint is
necessary it should only be applied in accordance with the law and best
professional practice.”[197]
2.54
In England, the 2009 Banerjee Report noted
that drugs are too often used as a first-line response to behavioural
difficulty in dementia rather than as a considered second-line treatment when
other non-pharmacological approaches have failed.[198] The Commission is thus of the view that strong guidelines
must be put in place which promote a restraint free environment in the home
care setting and also regarding the use of medication in the delivery of these
services and that the issue of the appropriate use of prescribed medication is
to be dealt with in the contract for care.
2.55
Submissions
received by the Commission after the publication of the Consultation Paper
noted that the strict control of medication in in-patient care does not exist
in professional home care. The potential for the over-administration of opiates
as well as the potential for unauthorised people to take opiates from the home
was highlighted. The Commission is also concerned that the over-prescribing of
drugs may limit a person’s ability to inform their care plan. Historically,
controlled drugs were administrated intravenously by a trained professional,
but it is now possible for opiates to be taken orally, thus further increasing
the potential for medication mismanagement. The Commission considers that
suitable procedures must be in place on the administration of medication in the
home. The Commission also notes the recommendation of the Expert Group on
Resource Allocation and Financing in the Health Sector to the effect that the
control of drugs is best approached by implementing guidelines and protocols
and by increasing consumer awareness about drug prescribing.[199]
2.56
In the
Consultation Paper the Commission noted that the administration of drugs often
rests with the care staff and that such staff may lack sufficient experience or
knowledge for the management of medicines.[200] It should also be noted
that many people self administer drugs in the home. The care plan should thus
set out who is to administer any medication. While the regulation of the
administration of drugs and the question of who is authorised to administer drugs
is outside the scope of this Report, the Commission recommends that a review of
the administration of drugs in the home be carried out. This review could
include, but not be limited to, representatives of the Department of Health,
HIQA, the Medical Council, An Bord Altranais and carer groups.
2.57
The
Commission recommends that a review of the administration of medicines in the
home be carried out, involving representatives of the Department of
Health, HIQA, the Medical Council, An Bord Altranais and carer groups.
2.58
During the
consultation period the importance of a log on what drugs were administered and
by whom was highlighted. It was expressed that best practice required that a
log would be kept in the home and be accessible to all. This is particularly
important where carers and family members may be administering medication. It
was also expressed that in drawing up the care plan, it must be agreed on what
medication the carer may administer. The Commission thus recommends that
policies and procedures on the administration of medication in the home must be
agreed between the care recipient or their guardian and the care provider as
informed by the proposed national standards. This must be included in the care
plan.
2.59
The
Commission recommends that policies and procedures on the administration of
medication in the home, informed by the proposed national standards, must be
agreed between the professional home care provider and the care recipient and
must be included in the care plan. The Commission further recommends that it
should be a requirement that a log be kept of all medication administered in
the home and be accessible to all.
2.60
The Working
Group on Elder Abuse was of the opinion that financial abuse was a widespread
concern which could be difficult to identify. It was noted that it can be
difficult to differentiate between “acceptable exchange and exploitative
conduct, between misconduct and mismanagement.”[201] To prevent financial
abuse from occurring, the Scottish National Care Standards, made under
the Regulation of Care (Scotland) Act 2001, require that all care recipients
are informed whenever staff are involved in any financial transaction.[202]
2.61
The Commission notes
the provisions in the 2008 HSE Draft National Quality Guidelines for Home
Care Support Services regarding financial protection. Guideline 10 imposes
an obligation on the service provider to ensure that there is a policy in place
for home care support workers on the safe handling of clients’ money and
property. This policy must cover a wide range of issues including the duty not
to accept gifts or cash beyond a very minimal value and the procedures to be
followed in relation to the collection of pensions on behalf of clients and the
payment for the service, if applicable.
2.62
In addition to the
draft HSE guidelines, the Commission also notes the HSE National Financial
Regulations on Voluntary Donations, Gifts and Bequests.[203]
These regulations impose stringent obligations on all HSE employees not
to receive benefits of any kind from a third party which might reasonably be
seen to compromise their personal judgement or integrity. Any benefits received
should be of nominal value. All such benefits received in connection with a
person’s employment or office must be disclosed in writing to the employee’s
line manager. The Commission endorses the 2008 HSE draft guidelines and is of the view that such
guidelines are necessary to ensure that the money and property of the care
recipient are protected at all times. Thus the Commission considers it
important that policy and procedures on the handling of money on behalf of the
care recipient in the context of professional home care are introduced on the
basis of those set out in the 2008 draft HSE guidelines.[204] The Commission
recommends that these procedures regarding financial affairs be included in the
contract for care.
2.63
The Commission recommends that
policies and procedures on the handling of money and property by the professional
care provider on behalf of the care recipient be included in the proposed
National Standards. The Commission also recommends that the policies and
procedures be included in the contract for care.
2.64
As noted in
the Consultation Paper, the provision of home care gives rise to specific
safety and health concerns. The relevant legislative provisions on this matter
are contained in the Safety, Health and Welfare at Work Act 2005
and the Safety, Health and Welfare at Work (General Application) Regulations
2007. In particular, a particular issue concerns the extent to which
professional home carers might be regarded as inhibited from engaging in manual
handling in the home. This can include the issue of reaching high shelves to
take down items for the care recipient, assisting the care recipient to move
and patient lifting where the care recipient might have a significant movement
disability. The question has arisen as to whether, under the comparable
statutory provisions in the UK, a professional home care provider could impose
a “no lift” ban so that a professional home carer would be prohibited from
assisting clients from getting out of bed or from getting materials which are
stored in high cupboards. As already noted, in the English High Court case R
(A and B) v East Sussex County Council, Munby J concluded that a blanket or
absolute “no lift” ban would be in breach of the rights of the service user
under the European Convention of Human Rights.[205]
2.65
The
Commission is concerned that safety and health policies and procedures put in
place by a professional home care provider must not infringe the human rights
of a home care recipient, while of course accepting that the safety and health
of the professional home carer must, as required by section 8 of the 2005 Act,
be protected so far as is reasonably practicable. In the Consultation Paper the
Commission provisionally recommended that any contract for home care must make
specific reference to responsibilities which may arise under safety and health
legislation.[206] The Commission
considers that clear guidance on safety and health obligations, particularly in
relation to manual handling, is essential in the home care setting. A careful
balance must be struck between ensuring that the relevant safety and health
legislation, including the 2007 Regulations made under the 2005 Act, are
followed while also ensuring that the human rights of the home care recipient
are not diminished. This will ensure that a suitable level of care is provided
safely. The Commission therefore recommends that the proposed National
Standards include specific guidance on safety and health requirements in the
delivery of professional care in the home, including suitable guidance on
manual handling (and which should be developed in liaison with the Health and
Safety Authority).
2.66
The Commission recommends that the
proposed National Standards include specific guidance on safety and health
requirements in the delivery of professional care in the home, including suitable
guidance on manual handling (and which should be developed in liaison with the
Health and Safety Authority).
2.67
The
Commission emphasises that professional home carers must have a rigorous
recruitment policy. Only competent, qualified staff must be selected. The
Northern Ireland Domiciliary Care Agencies Minimum Standards require
that, before an offer of employment is made, the home care agency must be
provided with at least two written references and professional and vocational
qualifications must be confirmed.[207] Similarly the 2009 HIQA
National Quality Standards for Residential Care Settings for Older People in
Ireland require that before new staff are confirmed in a post they must
have had satisfactory Garda vetting, have provided their employer with two
references, confirmed their identity, confirmed their registration where
appropriate, verified their qualifications and explained any gaps in their
employment history. All new staff must also be able to communicate effectively
with the residents, including residents with communication difficulties.[208]
2.68
All carers
must be sufficiently trained to perform their duties. Professional home carer
agencies must ensure that only suitable carers will provide care in the home.
The Working Group on Elder Abuse recommended that appropriate and ongoing
training should be provided to all working with older people. This will help
ensure that staff are adequately trained in the prevention, detection and
reporting of elder abuse.[209]
2.69
Those
employed to provide professional home care should have the necessary training
to ensure that they have the requisite skills to provide both domestic and home
care services. The Commission considers that this training needs to be
accredited by the Further Education and Training Assessment Council (FETAC).
All professional home carers should receive initial safety and health training,
core domestic care training and training in personal care issues. Training
should then be provided on an incremental basis to meet the changing needs of
the older person as they become more dependent.[210] The Commission
considers that this proactive approach to training will help minimise the need
for multiple people becoming involved with the care of the older person.
2.70
The
Commission also considers that ongoing training must be provided to ensure that
carers are kept informed of any changes in care practices or, indeed, the law.
Ongoing training is currently required under Standard 24 of the National
Quality Standards for Residential Care Settings for Older People in Ireland.
The Commission also notes the Draft National Quality Guidelines for Home
Care Support Services which will require all newly recruited home care
workers endeavour to undertake appropriate training to FETAC Level 5 or
equivalent within two years of taking up employment. For existing home care
support workers it will be necessary to have their capability and skills
assessed as being appropriate to their work in the home care support service
and they are also obliged to endeavour to undertake appropriate training to
FETAC level 5 or equivalent. There will be an obligation on service providers
to ensure that there is a home care support workers development and training
programme, which is reviewed and updated annually. The training and development
programme should ensure that home care support workers meet the changing needs
of clients, fulfil the aims of the service provider, understand and adhere to
the policies and procedures of the service provider and are suitably capable to
carry out their role.[211]
2.71
The
Commission recognises that abuse of adults in receipt of professional home care
may be caused by poor or inadequate training. It is thus of the utmost
importance that staff
are suitably trained to perform their duties. It is also important that staff
have the opportunity to receive further training as the needs of the care
recipient change. The Commission thus recommends that only suitably trained
personnel may provide professional care and that the proposed national
standards should set out relevant and detailed training requirements for those
providing professional home care services.
2.72
The Commission recommends that only suitably
trained personnel may provide professional home care, and that the proposed
national standards should set out relevant and detailed training requirements
for those providing professional home care services.
2.73
In the
Consultation Paper the Commission provisionally recommended that all
professional home carers must be adequately monitored and supervised in the
performance of their duties.[212] It was noted that while
staff may have the required skills and experience, further supervision and
monitoring is required to ensure protection of all care recipients. Thus, once
appointed and delivering care in the home, the home care provider must
adequately supervise their staff. This may include observing the home carer in
the home. It has been noted that if the care provider does not regularly see
the carer and the person being cared for, the “opportunistic identification” of
abuse is unlikely.[213] Thus, through
appropriate supervision, management can help to ensure that abuse does not take
place within the home.
2.74
In order to
ensure quality of care, the Commission considers it imperative that
professional home carers are supervised and have their performance appraised
regularly. Direct supervision by the carer’s employer (whether the HSE or a
private employer) is essential if care standards are to be assured. Where the
Health Service Executive (HSE) contracts with a private service provider, the
HSE will also monitor the standard of care provided. Where the care recipient contracts directly
with the care provider there is, however, no monitoring obligation on the HSE.
In both situations, the regulation of professional home care recommended by the
Commission foresees an additional layer of oversight provided by HIQA, with
HIQA acting in the role of an inspectorate, providing
external assurance on the maintenance of care standards.
2.75
The
Commission therefore recommends that the professional home care service
provider must adequately supervise the individual carer to ensure the
maintenance of care standards. The Commission also recommends that, where the
Health Service Executive (HSE) contracts with a private service provider, the
HSE must then also monitor the service standards used by that provider. The
Commission also recommends that the professional home care service provider be
monitored and inspected by HIQA in accordance with the proposed national
standards.
2.76
The
Commission recommends that the professional home care service provider must
adequately supervise the individual home care providers to ensure the
maintenance of care standards. The Commission also recommends that, where the
Health Service Executive (HSE) contracts with a private service provider, the
HSE must then also monitor the service standards provided by the service
provider. The Commission also recommends that the professional home care
service provider be monitored and inspected by HIQA in accordance with the proposed
national standards.
2.77
In the
Consultation Paper the Commission discussed the distinction between a contract
of service and a contract for services.[214] A contract of service
typically arises where one person, the employer, pays a wage or salary to
another person, the employee, with the employer being entitled to supervise and
give directions to the employee about “what to do and how to do it.” In other
words, in a contract of service the person paying the wages, the employer, can
instruct the other person, the employee, to do certain things and can decide
how these things are to be carried out. This also usually requires the employer
to provide suitable training and supervision for the employee. By contrast, a
contract for services typically arises where one person pays a fee to another
person to carry out a particular job. In this case, the person paying the fee gives
instructions about “what to do but not how to do it.”
2.78
The crucial
distinction is that, under a contract for services, the person paying the fee
is not an employer and is not entitled to tell the person engaged to do the
work how that work is to be carried out, and is therefore not responsible for
providing him or her with suitable training or for supervising them. Again,
typically a contract for services is entered into when the fee payer wishes to
have a specialist job carried out but does not have the know-how to do it
themselves or to understand how it should be done. This can range from engaging
a plumber, an accountant, a lawyer, or, in the context of this Report, a
professional home carer. The distinction between a contract of service (in
which the person paying is an employer) and a contract for services (in which
the person paying is not an employer) is particularly important: if there is a
contract of service between the care recipient and the professional care
provider, the carer is an employee of the care recipient. If there is a
contract for service between the two parties, the professional home carer is an
independent contractor and the care recipient is not an employer.
2.79
The
Commission has noted that, in most arrangements involving the provision of
professional home care, the care recipient is not an employer. Where the
professional home care is provided by the HSE pursuant to the Home Care Package
Scheme, the HSE is the employer of the carer. Equally, where the HSE provides
this service by engaging a private sector provider, that private sector
provider is the employer of the carer. Also, where the care recipient pays for
the professional home care service either directly to a private sector provider
or, as the Commission recommends, by using the HSE as an intermediary, the
private sector provider is the employer of the professional carer, not the care
recipient. The Commission notes that there has been a significant growth in
private sector home care providers in Ireland, which clearly reflects the wish
of individuals to maintain an independent life within their own home to the
greatest extent practicable. It is important to ensure that the contractual
arrangements in place in such situations ensure that the HSE or, as the case
may be, the relevant private sector home care provider is clearly the employer.
The Commission reiterates that, in the vast majority of cases, the home care
recipient is not, and should not be, described as the employer of the professional
home care provider.
2.80
There may
be situations in which a person who requires home care may wish to purchase
such services directly through the HSE given the HSE’s long experience in
providing care. Thus in the Consultation Paper the Commission provisionally
recommended that an individual who wishes to pay for the provision of home care
services should have the option to contract directly with the HSE for such
services.[215] It was noted in the
Consultation Paper that, where the HSE completely funds and provides home care,
the care recipient will not be involved in the financial arrangements
concerning the care contract. The HSE will either directly provide the care
themselves or will contract with a private sector home care provider to provide
the care on behalf of the HSE.[216] A public health nurse
would then assess the person’s needs to determine the type of care they may
need to receive. In such circumstances the HSE would have, as already
recommended, a monitoring role, which would complement the role of HIQA under
the proposed national standards.
2.81
During the
consultative period that followed the publication of the Consultation Paper,
concern was expressed that this provisional recommendation would change the
nature of the HSE home care service from one of service provider to a revenue
generating unit. Questions were also raised regarding the role of the public
health nurse changing from a position where a person would be assessed
according to their needs to a position where it was perceived that the public
could be “sold” home help services provided by the HSE. The Commission also
notes the findings of the Expert Group on Resource Allocation and Financing in
the Health Sector regarding the need for full transparency in the contractual
relationships between the HSE and all providers, including HSE hospitals and
nursing homes.[217] In the Report of the
Expert Group, reference was made to the HSE’s obligation, pursuant to the Health
Act 2004, to enter into legal arrangements with health care providers
whenever it seeks to contract services. The Group noted that this legal
obligation has begun to be implemented by the HSE in several areas but not in
every case. The Commission endorses the Expert Group’s recommendation that this
legal obligation to enter into contracts on the part of the HSE be extended to
apply to a wider range of areas so that each time the HSE contracts for the
provision of a particular health care service, full transparency can be
accounted for. The Expert Group also noted that the Comptroller and Auditor
General in this regard had made similar recommendations in its review of the
HSE.[218]
2.82
The
Commission has no role in determining the level of service which has been, or
will be, provided directly to care recipients through the HSE under the Home
Care Package Scheme. Any individual in need of care and who cannot afford to
pay for a service will continue to be provided with the level of support that
is available under the State funding provided to the HSE.[219] This is a separate
matter from the question as to whether a person who wishes to pay for care
should have the choice to contract directly with a private sector care provider
or through the HSE. The Commission considers that a care recipient should have
the choice or option of paying the HSE or a private sector provider for
professional home care services if they so wish. The Commission therefore
recommends that a person who wishes to pay for professional home care services
should have the choice to contract directly with a private sector care provider
or to do so through the Health Service Executive.
2.83
The
Commission recommends that a person who wishes to pay for professional home
care services should have the choice to contract directly with a private sector
care provider or to do so through the Health Service Executive.
2.84
As
explained above, where a person is financing the cost of care themselves, they
may wish to enter into an arrangement with the HSE to provide care. However, a
person may also wish to enter into a private contractual relationship with a
private home care agency. An ageing population has seen a growth in the private
sector home care market in Ireland which is expected to continue. Often the HSE
will provide some home care needs while the older person may also contract with
a private sector home care provider to meet those needs which are not being met
by the HSE. When a person opts to contract with a private sector home care
provider, that provider will assume the responsibilities of the employer.
2.85
In a very
small minority of cases, a person may wish to contract directly, as employer,
with an individual to provide professional home care. In such situations, the
care recipient may be deemed to be the employer. The Commission notes that,
while this arrangement may suit some care recipients, others may not be aware
of the obligations such a contractual relationship will bring. However, the
Commission notes that a person has the freedom to enter into such a contract.
To ensure that all persons are aware of obligations which may arise under such
a contract, the Commission provisionally recommended in the Consultation Paper
that there should be a public awareness campaign to indicate the limited
circumstances in which a home care recipient could be regarded as an employer
of a professional home carer.[220] The Commission
reiterates this recommendation. The Commission also recommends that any
national standards governing professional home care must also apply to any
independent contractors providing such services in a person’s own home.
2.86
The
Commission recommends that there should be a public awareness campaign to
indicate the limited circumstances in which a professional home care recipient
could be regarded as an employer. The Commission also recommends that any
national standards governing professional home care must also apply to any
independent contractors providing such services in a person’s own home.
2.87
In the
Consultation Paper the Commission provisionally recommended that an individual
who wishes to enter into an arrangement for the provision of home care should
have the option to contract with an intermediary, whether a State body or a
private sector body, who would arrange for the provision of care.[221] This was supported by a
number of organisations representing the interests of vulnerable people who
made submissions to the Commission. It was felt that the majority of people
would not wish to enter into a private contractual arrangement but would prefer
to contract with an intermediary who would be the employer of the professional
home carer. The Commission concurs with this view and reiterates the view it
took in the Consultation Paper. The Commission also reiterates that the use of
an intermediary would assist in ensuring that some care recipients who may be
vulnerable are protected from any potential abuse which may arise when drawing
up a contract.
2.88
Concern was
expressed in some submissions that an intermediary body could potentially make
decisions as to who provides the care and thus take away the independent
decision-making power of a care recipient (particularly an older care
recipient). The Commission acknowledges these concerns and the potential for
this to occur. However, the Commission notes that it is the legal duty of the
HSE to obtain informed consent from those it treats or provides services to. In
this regard, it would be incumbent on the HSE to respect the care recipient’s
right to autonomy and self-determination in terms of their choice of carer.
Also, as set out in Chapter 1, the Commission recommends that maintaining the
independence of all care recipients should be a guiding principle of the
proposed legislative scheme. The Commission is thus of the opinion that the
proposed intermediary body must not be in a position to take away from the care
recipient such fundamental choices as deciding who provides the care.
2.89
In the
Consultation Paper the Commission considered that a State body, such as the
HSE, or a private sector provider could act as the intermediary. During the
consultative process, it was suggested that a voluntary organisation could also
act as the intermediary.
2.90
The
Commission reiterates its approach that the proposed intermediary will not make
decisions regarding who is to provide care. They ensure that potentially
vulnerable adults do not assume responsibilities they do not wish to have or
that they may be unable to deal with due to age or infirmity. The care
recipients will be paying for the care themselves and thus have full choice
regarding who is to provide the care. As the HSE is a service provider which
has experience in contracting with individuals and agencies to provide care,
the Commission is of the opinion that the HSE is an example of one body which
may act as an intermediary.
2.91
The
Commission thus recommends that the intermediary body be responsible for
contracting on behalf of the care recipient with an agency, organisation or
individual to provide care and that the HSE is an example of one body which is
suitable to act as an intermediary.
2.92
The Commission recommends that a
care recipient who wishes to enter into an arrangement for the provision of
professional home care should have the option to contract with an intermediary,
whether a State body (such as the Health Service Executive) or a private sector
body (including a voluntary or not-for-profit undertaking), who would arrange
for the provision of care. The Commission recommends that the intermediary be
responsible for contracting on behalf of the care recipient with an agency, organisation
or individual to provide care. The Commission also recommends
that the relevant national standards introduced in conjunction with the
proposed legislation for the regulation of home care should address
arrangements with intermediaries.
2.93
In the
Consultation Paper the Commission noted that the proposed mental capacity
legislation[222] implements the key
recommendations of the Commission’s 2006 Report on Vulnerable Adults and the
Law.[223] The Commission noted
that the draft legislation proposes a functional approach to capacity in that a
person is deemed to have capacity if he or she has cognitive understanding of a
particular decision at the time the decision is to be made. The proposed
legislation also proposes to establish an Office of Public Guardian (OPG). The
functions of the OPG would include a supervisory role in respect of personal
guardians and persons appointed under enduring powers of attorneys.[224] The OPG would also deal
with representations including complaints about the way in which personal
guardians exercise their power.[225]
2.94
In the
Consultation Paper the Commission noted three possible options under the
proposed mental capacity legislation for contracting on behalf of a person who
does not have the capacity to contract. Under Head 16 of the Scheme of the
Mental Capacity Bill 2008, a person would have a general authority to act
on another’s behalf when making relatively minor decisions about their personal
care, healthcare or treatment decisions if their capacity is in doubt. The
Scheme of the Bill also proposes that where such a decision involves money and
is carried out in the interest of an adult who is reasonably believed to lack
capacity to consent, the person taking the action could lawfully apply the
money in the possession of the person concerned for meeting his or her
expenditure.[226] Thus a person with a
general authority to act would be able to enter into a contract for the
provision of home care and not incur any liability.
2.95
In the
Consultation Paper the Commission considered that such decisions should be
referred to the proposed Office of Public Guardian (OPG). However it was noted
that even with the additional safeguard of the OPG, this general authority to
act may be open to abuse.[227] The Commission thus
considered that a personal guardian (as proposed under Head 6(2)(b) of the 2008
Scheme of the Bill) should be appointed to enter into a contract for the
provision of home care on behalf of the person who lacks capacity. The
Commission noted that the proposed OPG would have a supervisory role over all
personal guardians appointed by a guardianship order, which would provide
additional protection.[228]
2.96
Finally the
Consultation Paper considered the possibility of an attorney appointed under an
enduring power of attorney (EPA) entering into a contract for home care where a
person lacks mental capacity and where an EPA has been executed.[229]
2.97
Submissions
received highlighted the important role of the OPG in this process. It was
noted that the onset of dementia or other illness affecting a person’s capacity
must not impact on their home care. Thus, to ensure that there is no delay in
entering into a contractual arrangement for the provision of care or to avoid the
collapse of current contracting arrangements, it was urged during the
consultative process that entering into a contract should be covered by the
proposed general authority to act in the proposed mental capacity legislation.
2.98
Nonetheless, the
potential danger of abuse of such a power and the risks involved were also
highlighted during the consultative process. The Commission is of the view that
too wide a power should not be given to those with a general authority to act.
In general, no one has the authority or any legal right to make decisions or
enter into contracts on behalf of another adult. The exceptions to this general
principle, such as where there exists an enduring power of attorney or where a
person has been made a ward of court, are limited and controlled by
legislation. The introduction of a new legislative means of making decisions on
behalf of another person by way of a general authority to act may be beneficial
in a host of ways, particularly regarding minor decisions that are part of
everyday life, but is not an absolute authority to act in all situations
concerning the individual on whose behalf the authority is used. The
introduction of this general authority was intended to end the requirement to
refer minor decisions regarding a person whose capacity was in doubt to a court
but was not intended to apply in respect of more serious decision. Hence, the
more serious the decision to be made, the greater the need for more formal
mechanisms to be in place to ensure the vulnerable adult in question is
protected.
2.99
The Commission has
concluded that a personal guardian or an attorney appointed under an enduring
power of attorney may enter into a contract for the provision of home care on
behalf of another person. The Commission reached this conclusion based on the
need for safeguards when a decision to enter into a contract for care is made
on behalf of another individual. In circumstances where a guardian or an
attorney enter the contract, certain statutory oversights will exist to ensure
that those decision-makers may be held to account, such as the proposed Office
of the Public Guardian. In respect of those who enter a contract pursuant to a
general authority to act, no such oversights or regulatory mechanisms exist.
There is no forum for complaints to be made against such individuals and it
would therefore be more difficult to hold such persons legally accountable in
the event of an abuse of their powers. Hence, the more serious the decision to
be made, the greater the need for statutory safeguards and the less likely it
becomes that a general authority to act will be sufficient.
2.100
The Commission recommends that,
assuming the enactment of mental capacity legislation, a personal guardian or
an attorney appointed under an enduring power of attorney may enter into a
contract for the provision of home care on behalf of another person.
2.101
In the
Consultation Paper the Commission provisionally recommended that any contract
for the provision of home care services should include specific provisions that
set out the financial arrangement between the contracting parties for the
agreed services.[230] The Commission also
noted that under HIQA’s 2009 Standards for Residential Care Settings for
Older People, service providers must provide each resident with a written
contract setting out the fees payable and identifying who is to pay the fees.[231] This provisional
recommendation was strongly endorsed during the consultative process. It was
thought that such a recommendation would serve to protect older people in
particular from cases of financial abuse. The Commission is of the opinion that
the proposed national standards on home care services should provide guidance
in relation to any financial arrangements. Thus the Commission recommends that
the proposed national standards should set out that a contract for the provision
of home care should include specific provisions setting out, in plain and
easily understood language, the fee arrangements between the contracting
parties for the agreed services.
2.102
The Commission recommends that the
proposed national standards should set out that a contract for the provision of
home care should include specific provisions setting out, in plain and easily
understood language, the fee arrangements between the contracting parties for
the agreed services.
2.103
In this
Part the Commission examines the protective measures which can be put in place
to protect professional home care recipients. The Commission has already
discussed protective measures from the perspective of the need for policies and
procedures to be put in place regarding elder abuse. This Part discusses
the steps which may be taken by service providers, care staff and any other
concerned party in order to ensure elder abuse does not occur or, where such
abuse has occurred, to ensure that it is reported. These mechanisms include
personal advocacy, pre-employment checks such as vetting and a safe screening
process and processes such as whistle-blowing and mandatory reporting of abuse.
2.104
Under the Health Act 2007, all
designated centres, including nursing homes, must be inspected and registered.
The provision of independent advocacy, though not itself specifically required
by the legislation, has been included in the Inspection framework.[232] The HIQA National
Quality Standards for Residential Care Settings for Older People in Ireland includes
advocacy and information as national quality standards, but these standards on
advocacy and information do not have a regulatory base to them.[233]
2.105
In the realm of disability legislation,
the role of a personal advocate is to assist people with disabilities in making
applications for services to which they may be entitled and in submitting
formal complaints if such services are not provided.[234] Advocates can also provide support and training to the
person and their family while applications or complaints are being made.[235] The personal
advocacy service is governed by section 5 of the Citizens Information Act
2007 but that section has not yet come into force.
2.106
Under the 2007 Act, “disability”, in relation
to a person, means a substantial restriction in the capacity of the person to
carry on a profession, business or occupation in the State or to participate in
social or cultural life in the State by reason of an enduring physical,
sensory, mental health or intellectual impairment. The emphasis in this
statutory definition on the enduring quality of the disability means that many
people currently in need of professional home care may not come within the
ambit of the 2007 Act and may not, when in force, avail of the advocacy service
envisaged by that Act.
2.107
In 2011, the National Advocacy Service, as
distinct from the Personal Advocacy Service envisaged by the 2007 Act, was set
up to provide professional, independent advocacy services to people with
disabilities. As part of this service, a number of Advocacy Support Workers
(ASWs) have been recruited to work with the Citizens Information Service (CIS)
at different locations across Ireland. Each Advocacy Support Worker will be
based in a CIS location but will work with staff in all CIS locations within a
specific region. The role of these ASWs will involve building on the work of
the Advocacy Resource Officer (ARO) project, and working mainly on training,
providing specialised advice on cases, and conducting case reviews. It is
expected to have these new ASWs in place in the summer of 2012. The new
National Advocacy Service is being provided within the same annual budget as
the pilot Community and Voluntary Advocacy Programme.
2.108
In relation to advocacy services specifically for older people, the
Advocacy Programme for Older People in Residential Care was launched in 2007,
commenced in 2008 and is funded by the HSE. The programme was launched
following the revelations of the abuse that had taken place and the poor
quality of care in Leas Cross Nursing Home in North Dublin.[236]
The people who serve as advocates are volunteers who are trained in advocacy
for older people and in order to become an advocate, they must complete a
recognised and accredited training programme. Under this programme, volunteer
advocates provide a weekly advocacy service for between two and four hours a
week. These advocates deal with a broad range of issues, however the more
serious issues are dealt with by the Development Officer assigned to support
the volunteer.[237] At present, the programme is only available to older people
resident in nursing homes[238] but it is
intended that in time the programme will broaden its remit to include advocacy
services for older people in receipt of hospital care and care in the
community.
2.109
An evaluation of the National Advocacy Programme for Older People in
Residential Care was concluded in 2011. In the evaluation report, it was stated
that advocacy for older people should be located in an independent organisation
that is independent from the service provider.[239]
A key recommendation of the report was this need to develop an independent
Advocacy Programme for Older People outside of the HSE.[240]
The evaluation report also noted that in spite of the low budget available to
it, the advocacy programme had achieved significant outcomes such as the
putting in place of policies and procedures on advocacy, including a National
Advocacy Programme Handbook and a Volunteer Advocate Policy.[241]
Crucially, the report recommended that the advocacy programme be broadened out
from residential care to hospital care and to care in the community. In other
words, the report recommended the extension of advocacy services to all areas
where professional care is delivered.[242]
The report also recommended the development of a specialist Dementia Advocacy
Programme in the future[243] and that
the advocacy programme needed to be put on a statutory footing through the
introduction of legislation on the rights of older people to independent
advocacy and information on public bodies.[244]
The Commission has concluded in this respect, and so recommends, that a
volunteer advocacy service for professional home care recipients be developed
and that the voluntary advocates be trained to the same FETAC Level 6 as
applies to comparable care advocates in institutional settings.
2.110
The Commission recommends that a volunteer advocacy service for
professional home care recipients be developed and that the voluntary advocates
be trained to the same FETAC Level 6 as applies to comparable care advocates in
institutional settings.
2.111
In the
Consultation Paper the Commission noted the proposed offences of ill treatment
and wilful neglect.[245] The Consultation Paper
noted that three categories of people would be covered by these proposed
offences:
·
a person
who has the care of another who lacks, or whom the [carer] reasonably believes
to lack capacity;
·
a person
appointed as an attorney under an enduring power of attorney; and
·
a person
appointed under the Scheme of the Bill as a personal guardian.
2.112
In the
Consultation Paper the Commission endorsed the proposed creation of the
offences of ill treatment and wilful neglect.[246] As a professional home
carer would come within the category of people dealt with in the proposed
mental capacity legislation, due to their responsibility for the care of
another who lacks capacity, the Commission considers that the prohibition of
ill-treatment and wilful neglect will serve as an important protective measure
for home care recipients.
2.113
In its Consultation
Paper on Sexual Offences and Capacity to Consent,[247] the Commission noted
the Draft Heads of the National Vetting Bureau Bill, which had been
published in 2011. This Bill will provide for a vetting process that will
include the use of both ‘hard’ and ‘soft/relevant’ information, in particular
information relating to the endangerment, sexual exploitation or sexual abuse,
or risk thereof, of children and vulnerable adults. The Commission noted that
the Bill will allow the use of information where individuals are under
investigation for alleged abuse and also if an organisation is concerned that
an individual could place a child or vulnerable adult at serious risk, the
agency will be obliged to provide that information to the vetting bureau.
2.114
During the
consultative process, the Commission invited submissions on the issue of
protecting people who report concerns about incidents of possible abuse of
adults by professional carers.[248]
2.115
A
“whistleblower” is someone who discloses information to authorities about
serious concerns they have about a health or social care service which either
they or someone they are in contact with receive. A whistleblower may also be
someone who is employed by a health or social care provider, and who discloses
information to the relevant authority about the care provider.
2.116
Protection
for whistleblowers was also dealt with by the Commission in its Consultation
Paper on Sexual Offences and Capacity to Consent.[249] The Commission noted
its awareness of the Government’s intention to propose the enactment of
generally applicable legislation to prevent employers from taking action
against whistleblowers.[250] The Commission also
noted the protection afforded to whistleblowers by the Health Act 2004, as
amended by the Health Act 2007. That Act affords protection to the employees of
relevant bodies who make disclosures of information.[251] Where such an employee
makes a disclosure of information to an authorised person in good faith, the
disclosure shall be deemed to be a “protected disclosure”.[252] Hence, where a
professional carer employed by the HSE, or another organisation that has
entered into a contractual arrangement with the HSE, makes a disclosure of
information on reasonable grounds and in good faith, the disclosure will be
deemed to be protected.[253] Furthermore, section
103 of the Health Act 2007 provides some protection for
whistle-blowers in the health sector who bring their concerns to the Health
Information and Quality Authority or the Mental Health Commission. As noted in
the Commission’s Consultation Paper on Sexual Offences and Capacity to
Consent, the Irish Human Rights Commission has queried whether this
mechanism for the making of protected disclosures is commonly known to
healthcare workers and whether the type of whistleblowing provided for in the legislation
actually works in practice.[254]
2.117
As noted by
the Commission in its Consultation Paper on Sexual Offences and Capacity to
Consent, some services are obliged by the Health Service Executive to
report any abuse or allegation of abuse committed against children and adults
on a monthly basis.[255] While this is not a
statutory obligation, the duty stems from service agreements with the HSE which
are legally binding on those that enter them. In addition to the well
established existence of this type of duty, legislation is being prepared which
will make it a criminal offence to withhold information relating to sexual
abuse or other serious offences against a child or vulnerable adult.[256] As noted in its Consultation
Paper on Sexual Offences and Capacity to Consent, the Commission is aware
that, in general, voluntary reporting systems tend to be more common than
mandatory reporting ones and the voluntary reporting practices are usually set
out in inter-agency protocols.[257] England, Scotland and
Wales share this voluntary reporting system, whereas Northern Ireland has
enacted mandatory reporting legislation in its child protection laws. The
Commission also noted that there is no empirical research that clearly shows
that introducing a legal obligation to report decreases the incidence of abuse.[258] Given the Government’s
commitment to introduce legislation providing for mandatory reporting of
certain types of abuse, the Commission restates its view on the importance of
clarifying to what extent the abuse needs to be reported. The Commission also
reiterates its view that multidisciplinary training should be introduced
alongside imposing a legal duty on those with concerns regarding possible abuse
to report their concerns.[259]
3
3.01
In this
chapter the Commission considers possible models for the future funding of
long-term home care provided by professional carers. The Commission notes that
the law reform issue of regulation of home care is distinct from the issue of
funding. However, due to the impact an ageing population may have on budgetary
demands, the Commission is of the opinion that a discussion of the funding of
long-term care is necessary.[260] The Commission does not
make any specific recommendations on this matter but gives an outline of the
possible models that could be used to underpin certain necessary amendments to
the Health Act 2007 to allow HIQA to regulate professional home carers.
3.02
In Part B
the Commission discusses the demographic changes which are relevant in this
context. In Part C the Commission outlines the various mechanisms which can be
adopted to fund long-term care, taking into account comparative funding models
from other States.
3.03
It is well
documented that the proportion of older people living in Ireland has increased
in recent years; a trend which is set to continue. It is expected that the
Irish population will increase from 4.24 million in 2006 to 5.1 million in
2021.[261] It is projected that
this population increase will also lead to increased ageing. It is estimated
that people aged 65+ will increase from 11% of the population in 2006 to 15.4%
of the population in 2021. Furthermore it is anticipated that those aged 85+
will increase by 42,900 from 1.1% to 2.1%.[262] The number of people
over the age of 65 is projected to increase from over 500,000 now to almost
1,200,000 in the next 30 years.[263] By 2050, one quarter of
the Irish population will be over 65.[264]
3.04
Not only
will the population of older people increase, but it is also expected that the
number of older people living alone will increase from 114,000 in 2002 to
210,000 in 2021. Indeed it is projected that the number of people aged over 70
living alone will almost double from 88,400 to 161,900.[265]
3.05
An aging
population is not a phenomenon exclusive to Ireland. In 2008, people aged 65+
accounted for 17.1% of the total population of the European Union. This is
expected to rise to 30% by 2060.[266] It is also expected
that by 2060 the working age population within the European Union will decrease
by 50 million people, with the population of people 65+ expected to rise by 67
million people. Thus the old age dependency ratio for the European Union is
expected to double by 2060.
3.06
The type of
health care services to be provided needs to be addressed in the context of
population change in the future. The traditional approach that treated
acute episodes cannot provide effective care for a population with increased
longevity.[267] As TILDA
points out ‘[o]ne of the great success stories of
modern times is the increasing number of people living into old age. This
triumph is also one of the greatest challenges’.[268] It is expected that GP consultations will increase by 33%
in 2021[269] and outpatient consultations for older people is expected
to increase by 22% by 2021.[270] Indeed if the target of only 4% of older people in
long-term care is met, this will cost the state €4.6 billion by 2051.[271] To achieve
the aim of 4%, considerable investment in community care facilities will be
necessary. As TILDA points out despite the widely held belief
that ageing will lead to large increases in the demands for hospital care which
will be hard to accommodate, the evidence from TILDA suggests that increased
demands will be modest, and will be driven primarily by the health of the
population as opposed to the age structure. The most pressing effects of ageing
are likely to be on demands for a range of community-based health and social
care services.[272]
3.07
Traditionally
the family, in particular the female members of the family, provided the
majority of long-term care. However, TILDA noted that while the role of the
family is often emphasised in Ireland, there was little actual evidence on what
families provide by way of care to older adults.[273] One of the aims of the
study was to gather information on such matters. The study ultimately found
that for older adults who required assistance with the activities of daily
living, the principal source of help is the family and the most common primary
helper is the care recipient’s spouse.[274] Worryingly, TILDA also
found that 12% of people over 50 with significant disability receive no formal
or informal care and are therefore potentially at risk.[275]
3.08
As the
Irish family unit is getting smaller, with increased levels of women entering
the work force, it can no longer be assumed that home care will be provided by
family members. It is thus unsurprising that many people are worried about the
costs associated with paying for care for older relatives. The Comptroller and
Auditor General’s Report for 2010, Accounts of the Public Services,
highlighted the unsustainable costs of public nursing home care in Ireland. The
Report noted that the average cost of care in a public nursing home is €1,245 a
week, compared with €865 in private homes.[276] Submissions received by
the NESF in their Report Care for Older People, highlighted the concerns
which many people have surrounding the costs of hospital care, primary care and
nursing home care. Many people who made submissions considered that routine
health examinations were already quite expensive, especially for older people
living on a low pension and those who do not qualify for a medical card. This
has led some older people to neglect their health due to the costs attached to
GP visits and medication.[277]
3.09
The
European Commission has noted that the working age population (15-64 years)
will decrease by 48 million between now and 2050. This will result in a change
from the EU having four to only two people of working age for each citizen 65
and older.[278] The European Commission
has thus urged that reforms on public spending on pensions and health should
not be delayed until such spending has risen. To do so would be a missed
opportunity to ensure that every generation contributes to the necessary
adjustment process.[279] The Commission notes the findings of a recent study
undertaken on behalf of the ESRI that, in spite of the increases in expenditure
on healthcare in recent years, Ireland still spends less per capita on health
than many other OECD countries and performs poorly in terms of aggregate health
outcomes such as life expectancy and mortality rates.[280] The Commission is thus of the opinion that planning
for care is a major policy issue and it is necessary to decide on the future
financing of long-term care.
3.10
An increase
in people living longer must be welcomed. This increase indicates improvements
in medical science, improved hospital practices as well as improvements in the
health and well being of Irish people. Older people can also contribute to both
their own families and society as a whole. However as older people may have
more health concerns, there may be future budgetary implications for long-term
care funding to address.
3.11
In 2004,
care services for older people cost almost €1 billion.[281] Despite this spend,
only Spain and Portugal spent proportionally less on care for older people.[282] When examined further,
almost half of the €1 billion euro spent was spent on residential care, despite
residential care only covering 5% of older people. It is thus unsurprising that
in 2005 NESF recommended increased spending on care services for older people
to attain, at least, the OECD average of 1% of GDP.[283]
3.12
Since 2005,
however, a number of notable developments have occurred, namely the
introduction of the Social Care and Professionals Act 2005 and the
establishment of HIQA under the Health Act 2007. Also, the introduction
of health care packages increased expenditure on community care services for
older people. These developments have sought to improve the quality of care for
people receiving health care services in Ireland. However, the onset of a
recession in the latter half of 2008, together with the lack of national
standards for home care packaged,[284] made the provision of
services for older people more susceptible to a lack of resources and serve to
perpetuate existing inequities in the delivery of services.
3.13
The Expert Group on Resource Allocation and
Financing in the Health Sector, established in April 2009, was asked to examine
how the existing system of resource allocation within the Irish public health
service could be improved to better support the aims of the health reform
programme. In
its Report, published in July 2010, the Group described the poorly developed
system of community health services as the greatest deficiency in the current
provision of public health services in Ireland.[285] The Group noted that
the community health sector in Ireland remains small and weak when compared to
provisions in other European countries.[286]
3.14
Due to the
mix of public, private and family care involved in the care of older people, it
is difficult to determine the precise cost of providing long-term care in the
future. Differing approaches have been taken by European Union countries to
cope with the specific budgetary demands of this type of care:
·
Some
countries, such as the Netherlands and Germany, have created a single funding
stream;
·
The scope
of public funding has been reduced, such as in the Netherlands, where the
social insurance-based system has dramatically reduced the scope of services;
·
England,
among other countries, has invested heavily in disease prevention services;
·
Some
countries, such as Germany, have frozen benefit levels while costs continue to
rise, thus increasing the amount of individual contributions;
·
Means-testing
has been tightened in other countries.[287]
3.15
In most
OECD countries, there is a mix of private and public funding for long-term
care. While long-term care is funded out of public funds, this is supplemented
by informal care, “substantial co-payments and/or out-of-pocket spending for
care provided under public programmes.”[288] Thus, generally older
people contribute towards their long-term care regardless of the funding model
in operation.
3.16
An OECD
Report on Long-term Care for Older People notes that the level of public
spending on long-term care is not dictated by a rise in the population of older
people. Rather, the funding model, the level of cost sharing and the quality of
care play important roles in determining the level of public funding for such long-term
care.[289] Despite increasing
public funds for long-term care, informal care continues to have an important
role in the providing this service. In Sweden, which has a comparatively high
level of expenditure on public services, two-thirds of all long-term care is
provided by informal carers.[290]
3.17
Currently
in Ireland, long-term care is provided on a means tested basis, with those who
can afford to do so paying for their own care. However due to the increased
budgetary demands an aging population will bring, the Commission is of the
opinion that it is necessary to formulate a long-term plan to fund long-term
care. Until such a plan is in place it is likely that the current system will
remain. The Commission, however, is concerned that the current system cannot
continue indefinitely if the Government’s policy to encourage older people to remain
living in the community is to come to fruition. For example, while the
introduction of home care packages is welcomed, budgetary constraints have led
to waiting lists in many local health offices. In the summer of 2008, it was
discovered that in some Dublin local health offices, new clients could only
access a health care package when another client stopped availing of it.[291] In a 2010 report by
SIGA, reference was made to the effect of the current economic climate on the
HSE’s ability to provide home care packages, noting that further cutbacks had
been made in relation to the home care packages scheme, home helps and other
community based services for older people.[292]
3.18
The
Commission welcomes the proposed review of the balance of funding between
residential and community care that is to take place as part of the commitment
of the Department of Health to review the sustainability of the Nursing Home
Support Scheme in 2012 and the relative costs of public versus private
provision.[293] The Commission notes
that if people do not receive the care services they require early, their
health concerns can become acute. Such a system costs more in the long term due
to the increased need for hospital admissions. Thus in recognition of the
budgetary benefits that preventative medicine begins, the Commission is of the
opinion that this position should change.
3.19
In 2002 a
report was commissioned by the Department of Social and Family Affairs to
examine specifically the financing of long-term care in Ireland (the Mercer
Report).[294] The Report considered
three broad areas:
·
The potential
of the private sector or a combined public/private approach to assist in
financing/funding long-term care;
·
The
potential of the PRSI system to finance/fund long-term care;
·
Whether the
current system of long-term care financing (through taxation) should remain the
status quo.[295]
3.20
Long-term
care was broadly defined as “care provided to those who are unable to look
after themselves without support due to long-term physical disability or
cognitive impairment disability.”[296] This was said to
include practical help, personal care, paramedical services and medical
services. The Report pointed out that there was no blueprint solution which
Ireland could adopt. However, it was noted that there is a consensus within the
European Union that long-term care should be publically financed. Despite this,
due to the projected demographic changes, individuals should be required to
make some provision for their future care.[297]
3.21
Finally, it
was noted that not only will demographic changes have an impact on the
financing of long-term care but future generations requiring long-term care will
come from the “consumer society” and thus are likely to have higher
expectations as to their care.[298] However, the Commission
notes that this “consumer society” was partly brought about by an increase in
income and disposable income for many people living in Ireland. The Commission
thus considers that it is possible for many people to contribute towards their
future long-term care. However, what is important is that a planned policy for
the funding of long term care is essential.
3.22
In 2008, a
number of consultative events were held in England to determine the public’s
opinion with regard to reforming the system of long-term care.[299] It was generally agreed
that the system was in need of reform. The public were in agreement that any
reform of the system should protect people who are unable to fund their own
care, but should also encourage and reward people who plan for their future
care.[300] There was a strong
consensus that people should pay more in the future, but there was little
agreement on how this should be implemented.[301] There was however,
broad agreement that any reform of the current system must be transparent and
sustainable with wide support for ring-fenced budgets.[302] While this consultative
process took place in England, a similar case could be made for the reform of
financing long-term care in Ireland. In the Irish context, in 2009, the
McCarthy Report proposed charges for Home Care Packages. The question of
charges is being examined by the Department of Health in the wider context of
eligibility for community based services for older people and it is possible
that such charges may be introduced in the future.[303]
3.23
In Ireland
at present, funding from taxation pays around 80% of the costs of health care.[304] The Mercer Report noted
that 44% of the Irish population favoured financing long-term care through
taxation.[305] However, the Report
also noted that countries which have adopted tax based models to fund the
health care system have experienced difficulties in reaching agreement on how
long-term care should be financed in the future. This led the Group to conclude
that there may be difficulties in financing long-term care in Ireland through
taxation.[306]
3.24
Nevertheless
public taxation currently funds long-term care in Ireland through the Fair Deal
Scheme, Home Care Packages and public health nurses to name but a few. The
Mercer Report noted a few advantages with taxation funding long-term care:
·
Public
financing can provide both risk pooling and income redistribution;
·
The cost of
care is redistributed over the population, however an aging population will
increase this cost;
·
Structures
are currently in place to finance long-term care through taxation;
·
In theory,
benefits and services can be provided on a universal basis.[307]
3.25
Despite the
benefits such a scheme would bring, the Report was conscious of the numerous
pitfalls:
·
Significant
additional resources are required to enhance current long-term care provision.
The possibility of improving resources through additional taxation may not be
possible;
·
Currently
funds for the provision of long-term care are not ear marked, thus the budget
for long-term care is subject to considerable variation;
·
In practice
it is very difficult to provide universal coverage and services will be most
likely subject to means testing;
·
It would
not be possible to pre-fund any of the expected increase in long-term care
costs due to the aging population.[308]
3.26
The Report
noted that if the State opted to develop a public/private financing option, it
would be necessary to develop and implement a clearly defined and lasting
policy on the benefits and services to be provided. The Mercer Group also
considered that the provision of home care services should be placed on a
statutory footing, thus giving people an entitlement to home care services. It
is for this reason that the Group considered that long-term care should not be
funded through general taxation. The Report concluded that an entitlement-based
system is much more suited to being funded through social insurance.
3.27
In 1993,
Austria introduced a tax funded system to provide long-term care. Allowances
are payable in cash only and payment will depend upon an assessment of the
needs of the person. The system was introduced to prevent inequity and to
support home care. While new allowances are funded through general taxation,
contributions to health insurance in Austria have risen by 0.8% for the
self-employed and farmers and 0.5% for retired people.[309]
3.28
In the Consultation Paper the
Commission provisionally recommended extending section 469 of the Taxes
Consolidation Act 1997 to provide tax relief for fees incurred by an
individual in meeting the cost of home care. Currently under section 469 of the
1997 Act, tax relief is available to individuals who have incurred health care
expenses, which includes nursing home fees. This Scheme, however, is not
extended to a taxpayer who incurs expenditure for home care services. The
Commission’s view as expressed in the Consultation Paper was that this was inequitable
and inconsistent with the Government’s policy to encourage community based
care.[310]
3.29
An
alternative solution to extending the tax relief system to the taxpayer who
incurs home care expenses can be found under section 467 of the 1997 Act. Under
this section, a person may claim tax relief up to €50,000 if they employ a
carer to assist an incapacitated relative. A relative in this context is a
relative of the individual tax payer, a civil partner, a spouse or a relative
of a civil partner or spouse. While a person may claim tax relief under section
467 if they employ a carer to assist an incapacitated relative, for the
purposes of equity and consistency, section 469 of the 1997 Act could also be
extended to provide tax relief for fees incurred in meeting the cost of home
care.
3.30
The
benefits of funding long-term care through social insurance are quite similar
to the benefits of taxation: it can combine risk pooling with income
redistribution, structures are currently in place to fund long-term care
through social insurance and people already receive benefits under the social
insurance scheme. However the Mercer Report noted some distinguishing features:
entitlement to benefits is dependent on contributions paid, social insurance
contributions are ring-fenced and provide social insurance benefits only and
benefits are automatic once a person contributes and thus not subject to means
testing.[311] The Report noted the
considerable benefits of a social insurance scheme for funding long-term care:
·
A public
social insurance scheme would provide a stable and lasting framework in which
to fund long-term care while also raising the public’s awareness of long-term
care issues;
·
A national
entitlements structure would provide equity and would also be structured to
favour home care over residential care;
·
The social
insurance scheme is transparent as there is a clear linkage between
contributions and benefits;
·
As a social
insurance scheme would be based on entitlement and, importantly, it would
remove the welfare stigma associated with a means-tested system;
·
A social
insurance scheme can potentially be pre-funded;
·
The public
may be more willing to pay additional social insurance contributions than
higher taxes to fund long-term care.[312]
3.31
Despite the
perceived benefits of a social insurance scheme, the Mercer Report noted a
number of potential difficulties:
·
Benefits
would be required for those who are not working and thus not contributing to
the scheme;
·
Those with
assets are not required to make use of those assets to contribute towards their
long-term care; [313]
·
A social
insurance scheme would give rise to a higher level of inter-generational
transfers than broader tax-based financing, although this could potentially be
addressed by requiring that pensioners continue to pay contributions in respect
of long-term care benefits;
·
Funding
long-term care through social insurance may reduce the ability of the
government to control expenditure;
·
Funding
long-term care through social insurance will be affected by changes in economic
growth, thus it will be necessary to supplement the scheme in times of
recession.[314]
3.32
The Mercer
Report noted that health care in Ireland is financed through taxation, the
health levy[315] and voluntary health
insurance. While health care is not funded through social insurance, people are
accustomed to contributing directly to health care costs. The Report thus
recommended that financing long-term care in Ireland could be achieved through
a social insurance scheme.[316] The Group did discuss
the potential difficulty in funding long-term care for those who were not in a
position to contribute. The Group raised the possibility of designating income
from a social insurance scheme to fund long-term care for older people, while
long-term care for younger people with a disability could be funded through
general taxation. However, it was noted that such a policy could create a two
tier system with many older people not qualifying for benefits.[317]
3.33
It was
noted, however, that the majority of people who would not qualify for social
insurance benefits would qualify for benefits under a means tested basis. Thus
it was recommended that the level of long-term care provided under a social
insurance scheme and through social assistance beneficiaries should be equal.[318]
3.34
In 1999,
Luxembourg reformed its social insurance system to cover long-term care. 45% is
funded from general taxation; the individual pays a 1% contribution based on
their salary or pension, with the remainder funded through a special tax on
electricity bills. The benefits provided under the scheme provide both home and
institutional care and benefits are provided based on the extent of a person’s
need.[319] While projections on
the future financial sustainability of the plan are currently not available,
from 1999-2003, the Luxembourg long-term care insurance had an annual budget
surplus.[320]
3.35
Since 2000,
Japan also has a public long-term insurance scheme in operation. 50% is funded
from general taxation, 32% from employee contributions with pensioners
contributing the remaining 18%. There is no single rate of contribution. It is
dependent on income up to a maximum with social assistance funds subsidising
the contributions of those on the lowest incomes. Only people over 40 years of
age currently contribute to the scheme.[321]
3.36
The
transition to the new scheme appears to have improved the system with an increase
in the choice of home care services and a reduction in levels of inappropriate
hospitalisations. However, an ageing population in Japan has led many to be
concerned about the future of the scheme. It is thought that average
contributions may have to grow by 80% within the next ten years to ensure that
the scheme can be sustained.[322]
3.37
The Mercer
Report considered the possibility of funding long-term care through an
earmarked, ring-fenced tax. Such a statutory scheme would give universal
benefit and would not be means tested. While a person would not need to have
contributed to the scheme in order to benefit, there would be a clear link
between payment of the tax and long-term care. The Report noted that a similar
system is currently in place: each employee pays a health levy. This levy could
be earmarked for long-term care.[323] A universal benefit
scheme shares many of the benefits with that of a social insurance scheme. Such
an earmarked tax would ensure that long-term care services would not compete
with other health care services for funding. However, a universal benefit
scheme would also share many of the problems associated with a social insurance
scheme, for example, a universal benefit scheme would result in a rise in
taxation which could be met with much resistance. However, a Report setting out
the findings of the 2011 Pfizer Health Index showed that the majority of Irish people want a fairer health system
based on need, even if it means having to pay more tax.[324] The Report
cautioned that the apparent enthusiasm for universal healthcare access might be
limited by a more rigorous debate on the costs and principles underlying any
such scheme.[325]
3.38
A Universal
Health Insurance (UHI) scheme, which at the time of writing (December 2011) is
under active consideration by the Government, every
citizen would be insured for their health care needs. Under a UHI system,
insurers would be obliged to offer the same package of services to all people.
In October 2011, the Government gave approval for an Implementation Group on
Universal Health Insurance to lay the necessary foundations for the
introduction of the scheme.
3.39
In Ireland,
nearly half of the population has supplementary private health insurance and
most people face full cost fees for using primary care services.[326] As regards payment for
primary care, the position for older adults is somewhat different. For example,
TILDA found that 97% of those aged 80 or over have medical cards that exempt
them from paying fees for primary care and hospital care. Furthermore, 91% of
people in their 70s have medical cards and 30% of those in their 50s. Despite
the high level of medical card holders in the older population in Ireland,
nearly 60% of people between 50 and 69 have private medical insurance. This
drops to 46% for those in their 70s and 32% for those over 80.[327]
3.40
While
long-term health insurance policies are not yet available in Ireland, such
insurance policies are available in other countries. However, such a method to
finance long-term care is viewed as inadequate as insurance companies may
refuse cover to people who may have a high risk of illness e.g., a person with
a family history of Alzheimer’s disease.[328] Such insurance is also
not suitable for people who need long-term care from an early age. It has also
been noted that experiences in other countries has shown that premiums are not
spread out over a person’s lifetime as people generally do not purchase such insurance until
they are in their sixties.[329] The Mercer
Report noted that the take-up of long-term care insurance, were this to be an
option, would be affected by:
·
The unwillingness of
people to focus on the probability that they may need
long-term care;
·
Perceptions
as to the probability of needing care and the likely duration of that need
(research has shown that Irish people underestimate their life expectancy);
·
The level
of understanding of what the State will and will not provide and uncertainty as
to the future role of the State.[330]
3.41
The Mercer
Report thus concluded that while there is a role for long-term care insurance
in Ireland, this is a very limited role. The Group was of the opinion that
long-term care insurance was likely to be taken up by people who wished to
protect their assets and people wishing to provide for the cost of more
expensive care.[331]
3.42
The Mercer
Report raised the option of a compulsory private insurance scheme. A number of
advantages of such an approach were noted:
·
Younger
people who may not consider their future long-term care needs would have
insurance to cover these needs;
·
A
compulsory scheme would have a large number of subscribers thus lower the risk
and the cost of insurance;
·
A
compulsory scheme would ensure that even those considered a high risk would be
covered;
·
Administrative
savings would come from an economy of scale.[332]
3.43
Despite the
benefits of such a scheme, the Report considered that a compulsory private
insurance scheme is not an appropriate solution to financing long-term care in
Ireland:
·
It may not
be rational to expect young people to insure the risk of long-term care, which
is most likely to be required at the end of their life, while they have
mortgages to pay;
·
Such a
scheme may increase the cost. As private insurance will cover the cost of
formal care, people will be more likely to avail of formal care over informal
care;
·
A
compulsory scheme will be seen as a further tax on income and have an impact on
the economy’s competitiveness;
·
Such a
scheme provides for long-term care for older people and not for people who
require long-term care from birth;
·
Problems
also arise for people who are unable to pay the premiums as they will be left
outside the scheme and have no coverage.[333]
3.44
Germany
currently has a public and private scheme of long-term care insurance. The
mandatory public scheme covers over 70 million people, while the private
insurance scheme covers 8.5 million.[334] Both retired and
working people contribute 1.7% of their gross income, up to a maximum
contribution to the public scheme. Employers usually pay 50% with the employee
paying the other 50%. Contributions to private long-term care insurance depend
upon the age of the recipient and federal regulation. However, private
insurance must provide the same cover as that provided under the public scheme.[335] If the recipient is
receiving care in an institution, the service part of the nursing home costs
are covered (except for accommodation), up to a maximum for three care levels.[336]
3.45
It has been
argued that people should save towards the cost of their potential long-term
care. However, as pointed out by the Mercer Report, this is not always feasible
as many people on low incomes will not be in a position to do so.[337] Indeed people who have
required long-term care from birth will not be in a position to save for future
long-term care. The Report also noted that such an approach does not take into
account the uncertainty of long-term care. In other words, a person is unlikely
to know in advance the type of care they will need and the length of time such
care will be necessary which may leave quite a shortfall to pay for the
necessary care. Conversely, many who may never need long-term care will have
tied up a substantial resource unnecessarily.[338] Such factors led the
Group to conclude that it is unreasonable to expect people to pay for their
long-term care through their savings.[339]
3.46
The
majority of countries favour a scheme whereby those who can afford to pay do
pay with the state providing full cover only for those who are unable to
support themselves.[340] Very often most people
are expected to make a contribution to the cost of their long-term care with
some financial assistance from the state. The level of contribution each person
is expected to make will depend upon their individual financial circumstances.
3.47
To The
Nursing Homes Support Scheme, known as the Fair Deal Scheme, was introduced
under the Nursing Homes Support Scheme Act 2009. It is a single funded
means of accessing long-term nursing home care. The aim of the Scheme is to
equalise State support for public and private long-term care recipients and
introduce one transparent system of support towards the cost of care that is
fair to all. It replaced the Nursing Home Subvention Scheme which had been in
operation under the Health (Nursing Homes) Act 1990 since 1993. In the
Government’s 2010 Budget, it was announced that €97 million would be provided
in 2010 to support the Scheme in addition to the €55 million provided in 2009. In the 2011 Budget, additional funding of €8 million was
said to be provided for Home Care Packages. An additional €6 million for the
Nursing Homes Support Scheme was also announced. However, the Scheme was
suspended in May 2011 because of funding issues. It became operational again in
June but there is now a waiting list comprised of people who have had their
applications for admission to the Scheme approved but who are waiting to
receive their placements until such time as the funding is available.[341]
3.48
To determine the amount the individual is expected to
contribute under the Fair Deal Scheme, a financial assessment of the person’s
income and assets is carried out. Income includes any earnings, pension income,
social welfare benefits or allowance, rental income, income from holding an
office or directorship, income from fees, commissions, dividends or interest.
Under the Nursing Homes Support Scheme Act 2009, an asset includes cash
assets such as savings, stocks, shares and securities, or a relevant asset which
covers all forms of property other than cash assets. For couples, the
assessment is based on half of their combined income and assets.
3.49
Applicants to the NHSS agree to pay up to 80% of their assessable income
and 5% of their assets towards the cost of nursing home care each year with the
Scheme paying for the remaining cost of care. The first €36,000 (or €72,000 for a couple)
worth of assets will not be counted in the financial assessment. The
principal residence is only included in the financial assessment for the first
three years of a person’s time in nursing home care. Thereafter, the principal
residence is excluded from the financial assessment. Where a person’s assets
include land and property in the State, the 5% contribution may be deferred and
collected from their estate. This is known as the Nursing Home Loan (the legal
term is Ancillary State Support). Thus only 15% of the value of the nursing home resident’s family home
will go towards the cost of their care. This can also be extended to cover
farms and businesses in circumstances where:
·
The person
has suffered a sudden illness or disability which causes them to need long-term
nursing care;
·
The person
or their partner was actively engaged in the daily management of the farm or
business up until the time of the sudden illness or disability;
·
A family
successor certifies that he or she will continue the management of the farm or
business.
3.50
The purpose
of the nursing home loan is to ensure that a person does not have to sell their
assets during their lifetime. The loan must be repaid to the Revenue within
twelve months of the person’s death otherwise interest will accrue. If,
however, the loan is based on the principal residence only, repayment can be
further deferred even when the person has died. The people who can apply for
this further deferral are:
·
A spouse or
partner;
·
A child (or
a spouse/partner’s child) if they are under the age of 21 years or if their
assets do not exceed the asset disregard;
·
A sibling
if their assets do not exceed the asset disregard;
·
A relative
in receipt of a disability or similar allowance, blind person’s pension, or the
State pension (non-contributory), or whose income doesn’t exceed the State
pension (contributory);
·
A relative
who is in receipt of a foreign pension or allowance similar to those outlined
above;
·
A relative
who owns a building to which the principal residence is attached;
·
Any person
who cared for an applicant prior to the latter entering the nursing home (this
is defined by reference to relevant social welfare payments).
3.51
Any person
who applies for a further deferral, except for a spouse or partner, must have
lived in the residence for three years or more prior to the original
application to the Nursing Home Loan Scheme, the residence must be their only
residence and they must not have an interest in any other property.
3.52
Regardless
of income and assets, no one will pay more than the actual cost of their care.
A person will also keep 20% of their income or 20% of the maximum rate of the
State pension (non-contributory), whichever is greater. If a person’s financial
contribution does not cover the cost of care, the State will pay the balance.[342]
3.53
The
Commission notes the Report of the Expert Group on Resource Allocation and
Financing in the Health Sector and its finding that the Fair Deal Scheme
had accelerated improved access to community nursing home capacity and allowed
service user greater choice of facility.[343] The Commission also notes the findings of the Review of
Expenditure which showed that during May 2011, a total of 21,960 people
were in receipt of support from the State for long-term residential care and
that of these, over 12,777 were in receipt of financial support under
the Nursing Homes Support Scheme.[344]
3.54
The methods
of financing health care should be as effective and equitable as possible.[345] As noted by the Mercer
Report, all public financing options (general taxation, social insurance and
universal benefit scheme) are suitable to fund long-term care in the medium to
long-term. However, financing long-term care through taxation will be subject
to budgetary constraints, while contributions towards a social insurance scheme
will vary according to the rate of unemployment.
3.55
The Mercer
Report, however, favoured a social insurance scheme. The Group was of the
opinion that an increase in social insurance contributions would be more
favourable than an increase in taxation. A social insurance scheme would also
confer an entitlement to services. It was felt that entitlement to home care
was important. Such an approach would conform to the Government policy of
supporting older people to remain living in the community.
3.56
Internationally,
while there are significant differences in the schemes adopted to fund
long-term care, many schemes are supported by additional contributions.[346] Thus individual
contributions to long-term care will likely continue however the financing of
long-term care may be reformed in Ireland. It is likely that the rise in demand
for long-term care will be financed through a rise in general taxation or an
increase in social insurance contributions. Increases in taxation or social
insurance are often justified as there will be an immediate benefit to the
public and this is the most efficient way to insure against the risk.[347] Whichever scheme
Ireland adopts to fund long-term care must be financially sustainable in the
long-term.
4
The
recommendations made by the Commission in this Report are:
4.01
The
Commission recommends that section 8(1)(b) of the Health Act 2007 be
amended to extend the functions of the Health Information and Quality Authority
(HIQA) to include the setting of standards in relation to services provided by
professional home care providers. [Paragraph 1.55]
4.02
The
Commission recommends the amendment of the definition of designated centres in
section 2(1) of the Health Act 2007 to include undertakings (both
unincorporated and incorporated, and whether established for gain or not
established for gain) who are involved in the provision of professional home
care services. The Commission also recommends that the Social Services
Inspectorate (SSI) establish a registry of all professional home carers.
[paragraph 1.59]
4.03
The
Commission recommends that the Ministerial regulation-making power conferred on
the Minister for Health by section 101 of the Health Act 2007 be
extended to include the authority to make regulations in respect of
undertakings involved in the provision of professional home care services.
[Paragraph 1.61]
4.04
The
Commission recommends that professional home care should be defined as services
which are required to ensure that an adult person can continue to live
independently in their own home. This may include, but is not limited to the
services of nurses, home care attendants, home helps, various therapies and
personal care. The Commission also recommends that palliative care be included
in the definition of professional home care. [Paragraph 1.71]
4.05
The
Commission recommends that the proposed legislative framework should apply to
undertakings who provide professional home care to persons aged 18 years and
over. [paragraph 1.76]
4.06
The
Commission recommends that a guiding principle of the proposed legislative
framework should be the principle of independent living. [Paragraph 1.84]
4.07
The
Commission recommends that guiding principles of the proposed legislative
framework should be the principles of privacy and dignity. [Paragraph 1.88]
4.08
The
Commission recommends that a guiding principle of the proposed legislative
framework should be the principle of quality of care. [Paragraph 1.92]
4.09
The
Commission recommends that a guiding principle of the proposed legislative
framework should be the protection of adults in receipt of professional home
care. [Paragraph 1.101]
4.10
The
Commission recommends that the Health Service Executive’s 2008 draft National
Quality Guidelines for Home Care Support Services should form the basis for
National Standards for Professional Home Care to be prepared by HIQA under the Health
Act 2007. The Commission also recommends that the proposed National
Standards should provide guidance on all aspects of professional home care,
including the detailed requirements derived from the necessary ministerial
Regulations on professional home care to be made under section 101 of the Health
Act 2007 (as amended in accordance with the recommendations made in this
Report), any protective measures necessary, and the sanctions that will apply
in the event of a breach of the National Standards. The Commission also
recommends that the National Standards form the basis for the individual
contract of care between the professional care provider and the care recipient.
[Paragraph 2.05]
4.11
The Commission recommends that an assessment
of needs of the care recipient must be carried out prior to the provision of
care and that the assessment considers both the needs of and the outcomes
desired by the care recipient. [Paragraph 2.16]
4.12
The Commission recommends that care needs
should be assessed under the following headings: companionship needs, care
needs and the advanced home care needs of the care recipient. Companionship
needs may include preparing snacks, monitoring diet and eating, arranging
appointments, reminders for medication, overseeing home deliveries and
organising visits to neighbours and friends. Home care may include meal
preparation, light housekeeping, providing transport, assisting with walking and
exercise, assisting with personal hygiene and dressing. Advanced home care
involves the highest level of care and may involve some health care. It may
include personal care, respite care, dementia care, early Alzheimer’s care,
assistance with continence and toileting and palliative care. The Commission
also recommends that the level of care should be appropriately attuned to the
actual needs of the person and that especial care is taken to ensure that the
level of care provided is not too high, thereby promoting the autonomy and
independence of the care recipient to the fullest degree. [Paragraph 2.19]
4.13
The
Commission recommends that an assessment of funding be conducted to determine
who is paying for the professional home care and what care can be provided The
Commission recommends that an assessment of funding be conducted to determine
who is paying for the care and what care can be provided. [Paragraph 2.23]
4.14
The
Commission recommends that the proposed National Standards should provide that,
prior to the commencement of professional home care, a risk assessment must be
carried out and that the risk assessment must be reviewed on an ongoing basis.
[Paragraph 2.28]
4.15
The
Commission recommends that a care plan be drawn up on completion of the needs
assessment, the assessment of funding and risk assessment. The care plan should
detail the companionship plan, the home care plan and advance home care plan.
The Commission also recommends that the detailed content of the care plan and
the review process should be set out in the proposed national standards for
professional home care. [Paragraph 2.37]
4.16
The
Commission recommends that all professional home care service providers make
available an easily understood, well publicised and accessible complaints
procedure, informed by the proposed national standards for professional home
care. [Paragraph 2.42]
4.17
The
Commission recommends that a professional home care service provider must have
policies in place to ensure that professional home care recipients are
protected from all forms of abuse and also recommends that those policies are
informed by the proposed national standards. [Paragraph 2.50]
4.18
The
Commission recommends that a review of the administration of medicines in the
home be carried out, involving representatives of the Department of Health,
HIQA, the Medical Council, An Bord Altranais and carer groups. [Paragraph 2.57]
4.19
The
Commission recommends that policies and procedures on the administration of
medication in the home, informed by the proposed national standards, must be
agreed between the professional home care provider and the care recipient and
must be included in the care plan. The Commission further recommends that it
should be a requirement that a log be kept of all medication administered in
the home and be accessible to all. [paragraph 2.59]
4.20
The
Commission recommends that policies and procedures on the handling of money and
property by the professional care provider on behalf of the care recipient be
included in the proposed National Standards. The Commission also recommends
that the policies and procedures be included in the contract for care.
[Paragraph 2.63]
4.21
The
Commission recommends that the proposed National Standards include specific
guidance on safety and health requirements in the delivery of professional care
in the home, including suitable guidance on manual handling (and which should
be developed in liaison with the Health and Safety Authority). [Paragraph 2.66]
4.22
The
Commission recommends that only suitably trained personnel may provide
professional home care, and that the proposed national standards should set out
relevant and detailed training requirements for those providing professional
home care services. [Paragraph 2.72]
4.23
The
Commission recommends that the professional home care service provider must
adequately supervise the individual home care providers to ensure the
maintenance of care standards. The Commission also recommends that, where the
Health Service Executive (HSE) contracts with a private service provider, the
HSE must then also monitor the service standards provided by the service
provider. The Commission also recommends that the professional home care
service provider be monitored and inspected by HIQA in accordance with the
proposed national standards. [Paragraph 2.76]
4.24
The
Commission recommends that a person who wishes to pay for professional home
care services should have the choice to contract directly with a private sector
care provider or to do so through the Health Service Executive. [paragraph
2.83]
4.25
The
Commission recommends that there should be a public awareness campaign to
indicate the limited circumstances in which a professional home care recipient
could be regarded as an employer. The Commission also recommends that any
national standards governing professional home care must also apply to any
independent contractors providing such services in a person’s own home.
[paragraph 2.86]
4.26
The
Commission recommends that a care recipient who wishes to enter into an
arrangement for the provision of professional home care should have the option
to contract with an intermediary, whether a State body (such as the Health
Service Executive) or a private sector body (including a voluntary or
not-for-profit undertaking), who would arrange for the provision of care. The
Commission recommends that the intermediary be responsible for contracting on
behalf of the care recipient with an agency, organisation or individual to
provide care. The Commission also recommends that the relevant national
standards introduced in conjunction with the proposed legislation for the
regulation of home care should address arrangements with intermediaries.
[paragraph 2.92]
4.27
The
Commission recommends that, assuming the enactment of mental capacity
legislation, a personal guardian or an attorney appointed under an enduring
power of attorney may enter into a contract for the provision of home care on
behalf of another person. [paragraph 2.100]
4.28
The
Commission recommends that the proposed national standards should set out that
a contract for the provision of home care should include specific provisions
setting out, in plain and easily understood language, the fee arrangements
between the contracting parties for the agreed services. [paragraph
2.102]
4.29
The Commission recommends that a volunteer
advocacy service for professional home care recipients be developed and that
the voluntary advocates be trained to the same FETAC Level 6 as applies to
comparable care advocates in institutional settings. [paragraph 2.110]
Appendix DRAFT HEALTH
(PROFESSIONAL HOME CARE) BILL 2011
DRAFT HEALTH (PROFESSIONAL HOME CARE) BILL 2011
ARRANGEMENT OF SECTIONS
Section
1. Short title and commencement
2. Interpretation
3. Amendment of section 2 of the Act of 2007 (definitions)
4. Amendment of section 5 of the Act of 2007 (general principles)
5. Amendment of section 8 of the Act of 2007 (standards for professional
home care)
6. Amendment of section 41 of the Act of 2007 (register of professional
home care services)
7. Amendment of section 101 of the Act of 2007 (regulations for professional
home care services)
8. Insertion of section 106 into the Act of 2007 (general duties concerning
professional home care services)
ACT REFERRED TO
Health Act 2007 2007, No. 23
DRAFT HEALTH (PROFESSIONAL HOME CARE) BILL 2011
BILL
entitled
AN ACT TO PROVIDE
FOR THE REGULATION OF PROFESSIONAL HOME CARE, FOR THAT PURPOSE TO AMEND THE
HEALTH ACT 2007; AND TO PROVIDE FOR RELATED MATTERS
BE IT ENACTED BY
THE OIREACHTAS AS FOLLOWS:
Short title and
commencement
1.—(1) This Act may be cited as the Health (Professional Home Care) Act
2011.
(2) This Act
comes into operation on such day or days as the Minister for Health may appoint
by order or orders either generally or with reference to any particular purpose
or provision, and different days may be so appointed for different purposes or
provisions.
Explanatory Note
This is a standard section setting out the short title and
commencement arrangements.
Interpretation
2.—(1) In this Act, unless the context otherwise requires—
“Act of 2007” means
the Health Act 2007;
“Minister” means
the Minister for Health.
Explanatory Note
This is a standard section setting out necessary
definitions.
Amendment of section 2 of the Act of 2007 (definitions)
3. — (1) Section 2 of the Act of 2007 is amended by the insertion after
the definition of “designated centre” of the following —
“ ‘designated
centre’ also includes (without prejudice to the above definition) an
undertaking (whether unincorporated and incorporated, and whether established
for gain or not established for gain) that is involved in the provision of
professional home care services;”.
(2) Section 2 of the Act of 2007
is amended by the insertion after the definition of “prescribed” of the
following —
“ ‘professional home care’ means services which are required to ensure
that an adult person, that is, a person aged 18 years and over, can continue to
live independently in their own home, and includes, but is not limited to the
services of nurses, home care attendants, home helps, various therapies and
personal care, and palliative care;”.
Explanatory Note
Subsection (1) implements the recommendation in paragraph 1.59 to amend the definition
of designated centres in section 2(1) of the Health Act 2007 to include
undertakings (both unincorporated and incorporated, and whether established for
gain or not established for gain) who are involved in the provision of
professional home care services.
Subsection (2) implements the recommendation in paragraph 1.71 that professional home
care should be defined as services which are required to ensure that an adult
person can continue to live independently in their own home. This may include,
but is not limited to the services of nurses, home care attendants, home helps,
various therapies and personal care. It also implements the recommendation in
paragraph 1.71 that palliative care be included in the definition of
professional home care. It also implements the recommendation in paragraph 1.76
that the proposed legislative framework should apply to undertakings who
provide professional home care to persons aged 18 years and over.
Amendment of section 5 of the Act of 2007 (general
principles)
4. — Section 5 of the Act of 2007 is amended by the insertion of the
following subsection after subsection (4) —
“(5) In carrying out its
functions concerning professional home care the Authority shall have regard to the following general principles as they apply to
the adults to whom such care is provided—
(a) the principle of independent living,
(b) the principles of privacy and dignity,
(c) the principle of quality of care, and
(d) the protection of those adults.”
Explanatory Note
This section
implements the recommendations in paragraphs 1.84, 1.88, 1.92 and 1.101 on the
guiding principles to be applied in the legislative framework.
Amendment of section 8 of the Act of 2007 (standards for
professional home care)
5. — (1) Section 8 of the Act of
2007 is amended by the insertion in subsection (1)(b) after “1990,” of
the following—
“and,
(iii) services provided by professional home care
providers,”.
(2) Section 8 of the Act of 2007
is amended by the insertion of the following after subsection (4)—
“(5) Without limiting the
generality of subsection (1) to (4), standards set by the Authority
under this section concerning the provision of professional
home care services, within the meaning of the additional designation of
“designated centre” in section 2 (as inserted by section 2(1) of the Health
(Professional Home Care) Act 2011)—
(a) shall provide guidance on all aspects of professional home care, and
shall—
(i) include all the requirements in the Health Service
Executive’s 2008 draft National Quality Guidelines for Home Care Support
Services (or any replacement equivalent document), and
(ii) include requirements derived from regulations on
professional home care made under section 101 (as amended by section 7 of the Health
(Professional Home Care) Act 2011), any protective measures necessary, and
the sanctions that apply in the event of a breach of the standards, and
(b) shall form the basis for the individual
contract of care between the professional care provider and the care recipient,
and
(c) shall provide that, prior to the commencement
of professional home care, a risk assessment shall be carried out and that the
risk assessment be reviewed on an ongoing basis, and
(d) shall include requirements concerning the care
plan required under section 106 (inserted by section 8 of the Health
(Professional Home Care) Act 2011), including the companionship plan, the
home care plan and advance home care plan, and
(e) shall include requirements concerning the
handling of money and property by the professional care provider on behalf of
the care recipient, and
(f) shall include specific guidance on safety and
health requirements in the delivery of professional care in the home, including
suitable guidance on manual handling (which shall be developed in liaison with
the Health and Safety Authority), and
(g) shall include relevant and detailed training
requirements for those providing professional home care services, and
(h) shall provide that a contract for the
provision of home care shall include specific provisions setting out, in plain
and easily understood language, the fee arrangements between the contracting
parties for the agreed services.”.
Explanatory Note
Subsection (1) implements the recommendation in paragraph 1.55 that section 8(1)(b)
of the Health Act 2007 be amended to extend the functions of the Health
Information and Quality Authority (HIQA) to include the setting of standards in
relation to services provided by professional home care providers.
Subsection (2)(a)
and (b) implement the recommendations in paragraph 2.05 that: the
Health Service Executive’s 2008 draft National Quality Guidelines for Home
Care Support Services should form the basis for National Standards for
Professional Home Care to be prepared by HIQA under the Health Act 2007;
that the proposed National Standards should provide guidance on all aspects of
professional home care, including the detailed requirements derived from the
necessary ministerial Regulations on professional home care to be made under
section 101 of the Health Act 2007 (as amended in accordance with the
recommendations made in this Report), any protective measures necessary, and
the sanctions that will apply in the event of a breach of the standards; and
that the standards form the basis for the individual contract of care between
the professional care provider and the care recipient. Subsection (2)(c)
implements the recommendations in paragraph 2.28 concerning risk assessments.
Subsection (2)(d) implements the recommendations in paragraph 2.37
concerning the care plan (see section 8(2) of the Bill, below), including the
companionship plan, the home care plan and advance home care plan. Subsection
(2)(e) implements the recommendations in paragraph 2.63 that the standards
include requirements concerning the handling of money and property by the professional
care provider on behalf of the care recipient. Subsection (2)(f) implements the recommendations
in paragraph 2.66 that the standards include specific guidance on safety and
health requirements in the delivery of professional care in the home, including
suitable guidance on manual handling (which are to be developed in liaison with
the Health and Safety Authority). Subsection (2)(g) implements the
recommendations in paragraph 2.72 that the standards include relevant and
detailed training requirements for those providing professional home care
services. Subsection (2)(h) implements the recommendations in paragraph
2.102 that the standards provide that a contract for the provision of home care
must include specific provisions setting out, in plain and easily understood
language, the fee arrangements between the contracting parties for the agreed
services.
Amendment of
section 41 of the Act of 2007 (register of professional home care services)
6. — Section 41 of the Act of 2007
is amended by the insertion in subsection (1)(b) after “centres,” of the
following—
“including, without prejudice to any other register or registers, a register of undertakings providing professional home care services within the
meaning of the additional designation of “designated centre” in section 2 (as
inserted by section 2(1) of the Health (Professional Home Care) Act 2011),”
Explanatory Note
This section
implements the recommendation in paragraph 1.59 that the Social Services
Inspectorate (SSI) establish a registry of all professional home carers.
Amendment of
section 101 of the Act of 2007 (regulations for professional home care
services)
7. — Section 101 of the Act of 2007
is amended by the insertion of the following after subsection (3)—
“(4) Without limiting the
generality of subsection (1) to (3), regulations under this section may
apply to an undertaking involved in the provision of professional
home care services within the meaning of the additional designation of
“designated centre” in section 2 (as inserted by section 2(1) of the Health
(Professional Home Care) Act 2011).”
Explanatory Note
This section
implements the recommendation in paragraph 1.59 that the Ministerial regulation-making
power conferred on the Minister for Health by section 101 of the Health Act
2007 be extended to include the authority to make regulations that apply to an undertaking involved in the provision of professional home care
services.
Insertion of
section 106 into the Act of 2007 (general duties concerning professional home
care services)
8. — The Act of 2007 is amended by
the insertion of the following section after section 105—
“General duties concerning professional home care services
106. — (1) (a) An undertaking providing professional home care
services shall carry out an assessment of needs of the care recipient prior to
the provision of care, and the assessment shall consider both the needs of and
the outcomes desired by the care recipient.
(b) The assessment shall include an assessment of
companionship needs, care needs and the advanced home care needs of the care
recipient, and,
(i) companionship needs may include preparing snacks,
monitoring diet and eating, arranging appointments, reminders for medication,
overseeing home deliveries and organising visits to neighbours and friends,
(ii) home care may include meal preparation, light
housekeeping, providing transport, assisting with walking and exercise,
assisting with personal hygiene and dressing,
(iii) advanced home care involves the highest level of
care and may involve some health care and may include personal care, respite
care, dementia care, early Alzheimer’s care, assistance with continence and
toileting and palliative care.
(c) An undertaking providing professional home care services shall ensure
that the level of care shall be appropriately attuned to the
actual needs of the person and shall, in particular, ensure that the level of
care provided is not too high and promotes the autonomy and independence of the
care recipient to the fullest degree.
(2) On completion of the assessment of needs, an undertaking providing professional home care
services shall draw up a care plan, which shall include the
companionship plan, the home care plan and advance home care plan.
(3) An undertaking providing
professional home care services shall make available an
easily understood, well publicised and accessible complaints procedure.
(4) An undertaking providing
professional home care services shall have policies in
place to ensure that professional home care recipients are protected from all
forms of abuse.
(5) An undertaking providing professional
home care services shall
(a) agree with the care recipient policies and procedures on the
administration of medication in the home, which shall be included in the care
plan, and
(b) maintain a log in the home of all medication administered, which
shall be accessible to all.
(6) An undertaking providing
professional home care services shall include in the
contract for care policies and procedures concerning the handling of money and
property by the professional care provider on behalf of the care recipient.
(7) An undertaking providing
professional home care services shall ensure that only suitably trained personnel may provide professional home care.
(8) An undertaking providing
professional home care services shall adequately supervise
the individual home care providers to ensure the maintenance of care
standards.”
Explanatory Note
Subsection (1) implements the recommendation in paragraphs 2.16 and 2.19 that an
assessment of needs of the care recipient must be carried out prior to the
provision of care and that the assessment considers both the needs of and the
outcomes desired by the care recipient. The assessment must include an
assessment of companionship needs, care needs and the advanced home care needs
of the care recipient. Companionship needs may include preparing snacks,
monitoring diet and eating, arranging appointments, reminders for medication,
overseeing home deliveries and organising visits to neighbours and friends.
Home care may include meal preparation, light housekeeping, providing
transport, assisting with walking and exercise, assisting with personal hygiene
and dressing. Advanced home care involves the highest level of care and may
involve some health care and may include personal care, respite care, dementia
care, early Alzheimer’s care, assistance with continence and toileting and
palliative care. An undertaking providing professional home care services must
also ensure that the level of care is appropriately attuned to the actual needs
of the person and must, in particular, ensure that the level of care provided
is not too high and promotes the autonomy and independence of the care
recipient to the fullest degree. Subsection (2) implements the
recommendations in paragraph 2.37 concerning a care plan, which must include
the companionship plan, the home care plan and advance home care plan. See also
section 5(2)(d) of the Bill, above. Subsection (3) implements the
recommendations in paragraph 2.42 that an undertaking providing professional
home care services must make available an easily understood, well publicised
and accessible complaints procedure. Subsection (4) implements the
recommendations in paragraph 2.50 that an undertaking providing professional
home care services must have policies in place to ensure that professional home
care recipients are protected from all forms of abuse. Subsection (5)
implements the recommendations in paragraph 2.59 that an undertaking providing
professional home care services must agree with the care recipient policies and
procedures on the administration of medication in the home, which must then be
included in the care plan; and must maintain a log in the home of all
medication administered, which must be accessible to all. Subsection (6)
implements the recommendations in paragraph 2.63 that an undertaking providing
professional home care services must include in the contract for care policies
and procedures concerning the handling of money and property by the
professional care provider on behalf of the care recipient. Subsection (7)
implements the recommendation in paragraph 2.72 that only suitably trained
personnel may provide professional home care. Subsection (8) implements
the recommendation in paragraph 2.76 that an undertaking providing professional
home care services must adequately supervise the individual home care providers
to ensure the maintenance of care standards.
[1] Law Reform
Commission Third Programme of Law Reform 2008-2014 (LRC 83-2007),
Project 27.
[2] LRC CP 53-2009.
[3] National Economic
and Social Forum Implementation of the Home Care Package Scheme Report
38 (September 2009).
[4] Fifty
Plus in Ireland 2011: First Results from the Irish Longitudinal Study on Ageing
(TILDA), available at www.tilda.ie.
[5] Report
of the Expert Group on Resource Allocation and Financing in the Health Sector
(Department of Health and Children 2010).
[6] For full information
on the 2006 census, see http://cso.ie/en/census/
[7] See Department of
Health Health in Ireland: Key Trends 2011 at 6.
[8] Department of Health
Comprehensive Review of Expenditure (September 2011), at 131.
[9] The
Role of Telecare in Supporting Carers of Older People (Centre for Ageing
Research and Development in Ireland, September 2011), available at
www.cardi.ie/node/9524.
[10] Fifty
Plus in Ireland 2011: First Results from the Irish Longitudinal Study on Ageing
(TILDA), at 13, available at www.tilda.ie.
[11] Fifty
Plus in Ireland 2011: First Results from the Irish Longitudinal Study on Ageing
(TILDA), at 14, available at www.tilda.ie.
[12] Central Statistics
Office Population and Labour Force Projections 2011-2041 at 11.
[13] Ibid
at 15.
[14] Ibid
at 16.
[15] Fifty
Plus in Ireland 2011: First Results from the Irish Longitudinal Study on Ageing
(TILDA), at 217, available at www.tilda.ie
[16] Department of
Health Comprehensive Review of Expenditure (September 2011) at 131
[17] Currently just
under 5% of older people over the age of 65 years live in one of the 607
nursing homes in Ireland. 120 of these nursing homes are public and the
remaining 487 are private. See Pillinger National Advocacy Programme for
Older People in Residential Care: An Evaluation (Commissioned by the HSE,
2011) at 7.
[18] The Commission’s Report
on Vulnerable Adults and the Law (LRC 74-2006) recommended the enactment of
mental capacity and adult guardianship legislation that would apply to all
persons over 18, though the Commission acknowledged that such legislation would
be of particular relevance to older persons. The Government Legislation
Programme Autumn Session 2011 (September 2011), available at www.taoiseach.ie,
proposes to publish a Mental Capacity Bill in early 2012.
[19] Inter-departmental
Committee on the Care of the Aged Care of the Aged Report (1968).
[20] Ibid
at 13.
[21] Ibid
at 49.
[22] Ibid at 112.
[23] National Council
on Ageing and Older People “The Years Ahead Report: A Review of the
Implementation of its Recommendations” Report no. 38 (1997) at 38.
[24] Ibid
at 38-39.
[25] National Council
for the Elderly Home Help Services for the Elderly People in Ireland,
Report no. 36 (1994) at 13.
[26] Fifty
Plus in Ireland 2011: First Results from the Irish Longitudinal Study on Ageing
(TILDA), at 6, available at www.tilda.ie.
[27] Fifty
Plus in Ireland 2011: First Results from the Irish Longitudinal Study on Ageing
(TILDA), at 215, available at www.tilda.ie.
[28] National Council
for the Elderly The Role and Future Development of Nursing Homes in Ireland
(1991) at 7.
[29] Ibid.
[30] See Working Party
on Services for the Elderly The Years Ahead-A Policy for the Elderly
(1988) at ix.
[31] It must be noted
that at the time of the writing of the report in 1988, Ireland had a high level
of immigration.
[32] See Working Party
on Services for the Elderly The Years Ahead-A Policy for the Elderly
(1988) at 38.
[33] Ibid
at 80.
[34] Ibid.
[35] Ibid
at 91.
[36] Ibid
at 96.
[37] Ibid at 97.
[38] National Council
on Ageing and Older People “The Years Ahead Report: A Review of the
Implementation of its Recommendations” Report no. 38 (1997) at 1.
[39] Ibid
at 155.
[40] Ibid
at 162.
[41] Ibid
at 179.
[42] Programme
for Economic and Social Progress (January 1991) at 25.
[43] Ibid
at 25-26.
[44] Shaping
a Healthier Future-A Strategy for Effective Health Care in the 1990s (1994)
at 26.
[45] Ibid
at 66.
[46] Ibid at 67.
[47] National Council
for the Elderly The Role and Future Development of Nursing Homes in Ireland
(1991) at 45.
[48] National Council
on Aging and Older People Health and Social Care for Older People Report (HeSSOP
Report) (2001) Report No. 64.
[49] Ibid
at 30.
[50] Ibid
at 29.
[51] Ibid.
[52] National
Economic and Social Forum Care for Older People Report 32 (2005) at
26-27.
[53] Ibid
at 53.
[54] Due to the reduced
level of resources available, the Department of Finance attached terms and
conditions to the National Development Plan 2007 – 2013. However, according to
the Infrastructure and Capital Investment 2012 - 2016 Report,
close to €2 billion will be invested in the period 2012-2016. Infrastructure
and Capital Investment 2012 – 2016: Medium Term Exchequer Framework
(Department of Public Expenditure and Reform, November 2011) at 29.
[55] National
Development Plan 2007-2013 at 255-257.
[56] Infrastructure
and Capital Investment 2012 – 2016: Medium Term Exchequer Framework
(Department of Public Expenditure and Reform, November 2011, at 30.
[57] See Chapter 3,
below.
[58] Fifty
Plus in Ireland 2011: First Results from the Irish Longitudinal Study on Ageing
(TILDA), at 204, available at www.tilda.ie.
[59] The cash grants
awarded pursuant to the scheme are to be approached in accordance with HSE
policy as set down in the National Guidelines and Procedures for the
Standardised Implementation of the Home Care Packages Scheme (2010).
According to these Guidelines, no charges will be levied on applicants in
respect of services provided through the Scheme. However, the home care
envisioned by the Commission involves a system whereby those who can afford
professional care in their own homes have the option of paying for that
service, if necessary through the HSE. This is one of the principal distinctions
between the home care system recommended in this Report and the home care
packages operated at present by the HSE.
[60] National Guidelines and Procedures for the Standardised Implementation
of the Home Care Packages Scheme (2010).
[61]
National Economic and Social Forum Implementation of the Home Care Package
Scheme Report 38 (September 2009).
[62]
Department of Health Comprehensive Review of Expenditure (September
2011), at 131.
[63] Fifty Plus in Ireland 2011: First Results from the Irish
Longitudinal Study on Ageing (TILDA), at 204, available at www.tilda.ie.
[64] Ibid, at 215.
[65]
National Economic and Social Forum Implementation of the Home Care Package
Scheme Report 38 (2009) at 34. The NESF’s review of the Home Care Package
Scheme also found that it was being implemented in different ways in different
HSE local health offices around the country and that applicants to the Scheme
faced different eligibility criteria, means tests and funding, depending on
where they lived.
[66]
National Economic and Social Forum Implementation of the Home Care Package
Scheme Report 38 (2009).
[67] PA
Consulting Group Evaluation of Home Care Packages (November 2009) at 9.
[68] Ibid at 54.
[69] Ibid at 56-57.
[70] Ibid at 60-61.
[71] Ibid at 69.
[72] Ibid at 70.
[73] Ibid at 95.
[74]
Programme for Government 2011-2016, available at www.taoiseach.gov.ie.
[75] LRC CP 53-2009.
[76]
Department of Health Comprehensive Review of Expenditure (September
2011), at 132.
[77]
http://www.interrai.org/section/view
[78]
Second World Assembly on Ageing International Plan of Action on Ageing
(April 2002)
[79] Help Age
International Strengthening Older People’s Rights: Towards a UN Convention
(January 2010) at 3.
[80] [2003]
EWHC 167 (Admin) (High Court of England and Wales, 18 February
2003).
[81]
This is the equivalent of Part 4, Chapter 4 of the Safety, Health and
Welfare at Work (General Application) Regulations 2007 (SI No.299 of 2007),
made under the Safety, Health and Welfare at Work Act 2005. The
Commission also notes here that these Regulations (like their British 1992
counterparts discussed in the 2003 A and B case) implemented in the
State a 1990 EU Directive on Manual Handling at Work, 90/269/EEC. See
generally, Byrne, Safety, Health and Welfare at Work Law in Ireland, 2nd
ed (Nifast, 2008), Chapter 26.
[82]
European Reference Framework: Key Competencies for Lifelong Learning, available
at
http://ec.europa.eu/dgs/education_culture/publ/pdf/ll-learning/keycomp_en.pdf.
[83] Ibid at 3.
[84]
The European Reference Framework Online for the Prevention of Elder abuse and
Neglect: Background, Good Practices and Recommendations, available at
www.preventelderabuse.eu.
[85]
The European Reference Framework Online for the Prevention of Elder abuse and
Neglect: Background, Good Practices and Recommendations, available at
www.preventelderabuse.eu, at 11.
[86] Ibid at 5 and 11. At 5, the Framework document notes
the Protecting Our Future report of 2002 which represents the Irish
national policy on elder abuse and also notes the Irish definition of this form
of abuse.
[87]
Report of the Working Group on Elder Abuse Protecting our Future (2002)
at paragraph 3.3.
[88] Law Reform
Commission Consultation Paper on Legal Aspects of Carers (LRC CP
53-2009) at paragraph 1.42.
[89] Health Act 2007 (Care and
Welfare of Residents in Designated Centres for Older People) Regulations 2009 (SI No.236 of 2009), as
amended by the Health Act 2007 (Care and Welfare of Residents in Designated
Centres for Older People) (Amendment) Regulations 2010 (SI No.36 of 2010),
made under section 101 of the 2007 Act.
[90] Available at
www.hiqa.ie.
[91] See Health Act
2007 (Commencement) (No.2) Order 2009 (SI No.237 of 2009).
[92] Law Reform
Commission Consultation Paper on Legal Aspects of Cares (LRC CP 53-2009)
at paragraph 1.36.
[93] Ibid at paragraph 1.42.
[94] Law Reform
Commission Consultation Paper on Legal Aspects of Cares (LRC CP 53-2009)
at paragraph 1.43.
[95] Section 2
of the Health Act 2007.
[96] Law Reform
Commission Consultation Paper Legal Aspects of Carers [LRC CP 53-2009]
at paragraph 5.6.4.
[97]
Law Reform Commission Consultation Paper Legal Aspects of Carers (LRC CP
53-2009) at paragraph 1.48.
[98]
World Health Organisation Home Care in Europe: The Solid Facts (2008) at
1.
[99]
Department of Health “Domiciliary Care National Minimum Standards” (2003). See
also Welsh Assembly Government “National Minimum Standards for Domiciliary Care
Agencies in Wales” (2004).
[100] Ibid at 6.
[101] Ibid at Standard 9.9.
[102] Aged Care Act 1997.
[103] Section 45(3) of Aged Care Act 1997.
[104]
National Economic and Social Forum Implementation of Home Care Packages in
Ireland, Report 38, 2009.
[105]
TILDA found that the most pressing effects of ageing are likely to be on
demands for a range of community-based health and social care services. Fifty
Plus in Ireland 2011: First Results from the Irish Longitudinal Study on Ageing
(TILDA), at 217, available at www.tilda.ie.
[106] Department
of Health and Children Report if the National Advisory Committee on
Palliative Care (2001) at paragraph 1.8.
[107] Ibid.
[108] Primary Palliative Care in Ireland: Identifying
Improvements in Primary Care to Support the Care of Those in Their Last Year of
Life (November 2011), available at www.hospice-foundation.ie
[109] Dr. Paul Gregan, Chairperson of the Primary Palliative Care
National Steering Group, stated that “[r]esearch has found that 80% of people
with end-stage disease in Ireland want to die at home”, Primary Palliative
Care in Ireland: Identifying Improvements in Primary Care to Support the Care
of Those in Their Last Year of Life (November 2011), available at
www.hospice-foundation.ie
[110]
“Carers group claims its members save state €2.5 billion”. The Irish Times,
Health Supplement, 10 February 2009.
[111]
Department of Health and Children Long-term Care Report (2008 at
paragraph 1.41.
[112] Irish
Human Rights Commission Older People in Long Stay Care (2003) at 11.
[113]
Health and Social Services for Older People The Years Ahead Report: A Review
of the Implementation of its Recommendations (National Council on Aging and
Older People, June 2001) at 23.
[114] Towards a Restraint Free Environment in Nursing Homes (Department
of Health, 2011) at 2.
[115]
OECD Long-term Care for Older People (2005) at 70.
[116]
Department of Health “Domiciliary Care National Minimum Standards Regulations,”
at 3.
[117]
Report of the Premier’s Council on Aging and Seniors’ Issues Aging Well in
British Columbia at 53.
[118]
HM Government The Case for Change – Why England Needs a New Care and Support
System (2008) at 34.
[119] Ibid.
[120] National Economic and Social Forum Implementation of Home
Care Packages in Ireland, Report 38, 2009.
[121]
Health Information and Quality Authority National Quality Standards for
Residential Care Settings for Older People in Ireland (2009), Standard 4.
[122]
The Health Information and Quality Authority’s Standards for Residential Care
state that the “resident’s permission must be sought before any person enters
his/her room.” Standard 4.8 of Health Information and Quality Authority National
Quality Standards for Residential Care Settings for Older People in Ireland
(2009).
[123]
See Standard 4 of Health Information and Quality Authority National Quality
Standards for Residential Care Settings for Older People in Ireland (2009).
[124]
See Ethical Issues in Home Care, Summary and Overview of Presentations
and Discussions at the Annual Meeting of the Canadian Society (2004).
[125]
Ahern, Doyle and Timonen “Regulating Home Care of Older People: The Inevitable
Poor Relation” (2007) 29 Dublin University Law Journal 374 at 385.
[126] National Quality Standards for Residential Care Settings
for Older People in Ireland (Health Information and Quality Authority,
2009) at Standard 11.9.
[127]
Services for Older People Expert Advisory Group and Governance Group Draft
National Quality Guidelines for Home Care Support Services (October 2008).
[128]
Abuse and Neglect of Older People in Ireland National Centre for
the Protection of Older People (November 2010) at 65.
[129] The
Open Your Eyes report noted that 82% of reported cases of alleged abuse
of older people occurred in the home, HSE Elder Abuse Service
Developments 2008 ‘Open Your Eyes’ (February 2009) at 31.
[130]
Ahern, Doyle and Timonen “Regulating Home Care of Older People: The Inevitable
Poor Relation” (2007) 29 Dublin University Law Journal 374 at 385.
[131]
See Standard 14.1 of the English Department of Health “Domiciliary Care
National Minimum Standard Regulations” (2003).
[132]
Report of the Working Group on Elder Abuse Protecting our Future (2002)
at paragraph 3.3.
[133]
Department of Health “No Secrets”: Guidance on Developing and Implementing
Multi-Agency Policies and Procedures to Protect Vulnerable Adults from Abuse
at paragraph 2.7. This definition has also been endorsed by the Health Service
Executive (HSE) see
http://www.hse.ie/eng/services/Find_a_Service/Older_People_Services/Elder_Abuse/#what
[134]
Guideline 9.1 of the Draft National Quality Guidelines for Home Care Support
Services.
[135]
In the proposed mental capacity legislation (as set out in the Scheme of the
Mental Capacity Bill 2008), the offences of ill-treatment and wilful
neglect are punishable on summary conviction by imprisonment for a term not
exceeding 12 months or a fine not exceeding €3,000 or both, or on conviction on
indictment, by imprisonment for a term not exceeding 5 years or a fine not
exceeding €50,000 or both.
[136] See also Standard 8 of the Health Information and Quality
Authority National Quality Standards for Residential Care Settings for Older
People in Ireland (2009) and Health Information and Quality Authority Your
Guide to the National Quality Standards for Residential Care Settings for Older
People in Ireland.
[137] Services for
Older People Expert Advisory Group and Governance Group Draft National
Quality Guidelines for Home Care Support Services (October 2008).
[138]
The draft Guidelines provide that professional home care providers must give
each client a service guide which sets out the various obligations on each
party involved in the home care service, including a duty on the client to
disclose any infection control issues such as MRSA and obligations arising out
of the fees payable for the service, if applicable. Draft National Quality
Guidelines for Home Care Support Services (October 2008), Guideline 1.2.
[139]
Law Reform Commission Consultation Paper on Legal Aspect of Carers (LRC
CP 55-2009) at paragraph 3.02.
[140]
Standard 10.3 of the HIQA National Quality Standards for Residential Care for
Older People provides that a comprehensive assessment of each resident’s or
prospective resident’s health, personal and social care needs is undertaken
before admission. This needs assessment must be undertaken by appropriate
professionals trained to do so.
[141] Aged Care Assessment and Approval Guidelines (2006)
at 1.
[142] Ibid at paragraph 1.4.
[143] Ibid at paragraph 1.6.1.
[144] Ibid at paragraph 1.6.2.
[145] Ibid at paragraph 1.6.3.
[146] Ibid at paragraph 1.6.4.
[147] Ibid at paragraph 1.6.5.
[148] Ibid at paragraph 1.6.6.
[149]
Department of Social and Family Affairs Study to Examine the Future
Financing of Long-Term Care in Ireland (2002) (the Mercer Report) at 8.
[150] Ibid at 8-9.
[151] PA
Consulting Group Evaluation of Home Care Packages (November 2009) at 43.
[152]
Standard 10 of the National Quality Standards for Residential Care Settings
for Older People in Ireland. See also paragraph 2.23 in relation to the
importance of the risk assessments.
[153] CSAR-Guidelines
(NHSS 2009).
[154] See comment in Report
of the Expert Group on Resource Allocation and Financing in the Health Sector
(Department of Health and Children 2010) at 199 which states that in the
absence of operational standardised needs assessment guidelines and
criteria, the allocation of resources may serve to perpetuate existing
inequities in the delivery of home care support services.
[155] Law
Commission of England and Wales Consultation Paper Adult Social Care
(February 2010) No. 192 at paragraph 4.31.
[156]
In the nursing home context, care needs are assessed under health, personal and
social care needs. See Standard 10, National Quality Standards for
Residential Care for Older People in relation to health and social care
needs. Standard 10 provides for assessment of needs at the pre-admission stage
and again upon admission and at regular intervals thereafter, including an
assessment of needs prior to the discharge of a resident. A comprehensive
assessment of the resident’s health, personal and social care needs, using a
Minimum Data Set tool, is completed within seven days of his/her admission or
sooner if the risk assessment indicates that an earlier assessment may be
necessary. This assessment is reviewed as indicated by the resident’s changing
needs or circumstances and no less frequently than at three-monthly intervals.
[157]
See Primary Palliative Care in Ireland (November 2011), available at
www.hospice-foundation.ie. According to this report, primary care teams are now
gradually being established around the country and they work with specialist
palliative care services that are already in place.
The report also highlighted the need to establish a formal framework to support
the delivery of palliative care by community-based health care professionals.
One of the recommendations made in the report is the introduction of a formal
mechanism for GPs to communicate to their local out of hours service providers
with regard to the palliative care needs of their patient.
[158]
See National Economic and Social Forum Implementation of the Home Care
Package Scheme Report 38 (2009) at 40.
[159] Ibid at 54.
[160]
Standard 10. 4 provides that a general risk assessment is to be carried out and
recorded upon admission to the nursing home and as indicated by the resident’s
changing needs or circumstances and no less frequently than at three-monthly
intervals. The National Quality Standards for Residential Care Settings for
Older People refer to risks and the need for frequent risk assessments
throughout the document. The risk of falls must assessed and documented as well
as any risks posed to the resident by the self-administration of medication.
[161]
Standard 14.9 provides that residents in a nursing home may self-administer
medications where the risks have been assessed and his/her competence to
self-administer is confirmed. Any change to the initial risk assessment must be
recorded and arrangements for self-administering medicines are to be kept under
review.
[162]
Standard 16.2 of Domiciliary Care Agencies Minimum Standards (2008).
[163] Guideline 8
of the HSE Draft National Quality Guidelines for Home Care Support Services.
[164] Roper,
Logan and Tierney (1980) The Elements of Nursing (Edinburgh: Churchill
Livingstone). The Roper-Logan-Tierney model of nursing was
originally published in 1980, with the most recent edition published in 1998.
It is a model of nursing care based on the activities of daily living. The
original purpose of the model was to be an assessment used throughout the
patient’s care, but it has become the norm to use it only as a checklist on
admission.
[165]
Reg. 14(1) of the 2002 Regulations; Reg. 15(2) of the 2007 Regulations.
[166]
Reg. 14(4) of the 2002 Regulations; Reg. 15(4) of the 2007 Regulations.
[167]
Standard 11 of the National Quality Standards for Residential Care Settings
for Older People in Ireland.
[168]
National Council on Ageing and Older People The Future of the Home Help
Service in Ireland, Report No 53 (1998).
[169] Ibid.
[170]
Law Reform Commission Report on Bioethics: Advance Care Directives (LRC
94-2009) at paragraph 7.
[171] Law Reform Commission Consultation
Paper on Bioethics: Advance Care Directives (LRC CP 51-2008) at 29.
[172] Standard 26 of
the Domiciliary Care-National Minimum Standards.
[173] SI 236 of 2009
[174] Regulation 26(1)
of the Nursing Homes (Care and Welfare) Regulations 1993 provided: “A dependent
person being maintained in a nursing home or a person acting on his or her
behalf may make a complaint to the chief executive officer or a designated
officer of the health board.” Under Regulation 26(2), a complaint had to be in
writing, except where a written complaint was not possible, in which
circumstances, as provided for by Regulation 26(3), a chief executive officer
could cause a verbal complaint to be considered and investigated, once he or
she was satisfied that the complainant was acting in good faith.
[175] Guideline 7
of the HSE Draft National Quality Guidelines for Home Care Support Services.
[176] HSE Complaints
Policy and Procedures Manual ‘Your Service Your Say’ 2009 HSE Consumer
Affairs.
[177]
Part 9 of the Health Act 2004 makes provision for a statutory complaints
system within the HSE. Section 49 of the 2004 Act provides that a complaint may
be made against the HSE or a service provider. Section 53 of the Act confers a
power on the Minister for Health to make regulations pertaining to the statutory
complaints process. Pursuant to section 53, the Health Act 2004 (Complaints)
Regulations 2006 were introduced and became operational on 1 January 2007.
The 2006 Regulations provide that any person who is dissatisfied with any
outcome of the complaints procedure may refer the matter to the Ombudsman or
the Ombudsman for Children as the case may be.
[178] Ibid at 14.
[179]
Regulation 14(6) of the Domiciliary Care Agencies Regulations 2002.
[180]
The Commission
notes the establishment of the National Financial Abuse of Older Persons
Working Group in 2010, a multi-agency forum which aims to ensure that the
financial abuse of older people is responded to effectively.
[181]
HSE Elder Abuse Policy – Responding to Allegations of Elder Abuse (2008).
The HSE Elder Abuse Policy is not underpinned by legislation.
[182]
Standard 8.4 of the HIQA National Quality Guidelines for Residential Care
Settings for Older People in Ireland provides that all nursing home staff
must receive induction and on-going training on the prevention of and
protection from abuse, indicators of abuse, responding to suspected, alleged or
actual abuse, reporting such cases and the procedures for protecting residents
with particular vulnerabilities.
[183] Ibid at paragraph 6.7.
[184]
Standard 8 of the National Quality Standards for Residential Care Settings
for Older People in Ireland.
[185]
Standard 8 of the National Quality Standards for Residential Care Settings
for Older People in Ireland.
[186]
Guideline 9.2 of the HSE Draft National Quality Guidelines for Home Care
Support Services.
[187] Fifty Plus in Ireland 2011: First Results from the Irish Longitudinal
Study on Ageing (TILDA), at 94, available at www.tilda.ie.
[188]
The use of multiple medications, whether prescription or non-prescription, is
generally described as ‘polypharmacy’. According to the TILDA Report,
polypharmacy is associated with an increased risk of falls and fall-related
injuries, delirium, decline in activities of daily living and increased
mortality. The risk of falls increases with increasing numbers of medications,
from 15% in older adults not taking medications, up to 27% in those taking five
or more medications. Fifty Plus in Ireland 2011: First Results from the
Irish Longitudinal Study on Ageing (TILDA), at 90, available at
www.tilda.ie.
[189] Fifty Plus in Ireland 2011: First Results from the Irish
Longitudinal Study on Ageing (TILDA), at 74, available at www.tilda.ie.
[190] Studies have
shown that correct adherence to medication can dramatically improve quality of
care and prevent disability, resource-intensive complications of chronic
conditions. Transforming primary care in Ireland: information, incentives,
and provider capabilities Padhraig Ryan, Centre for Health Policy and
Management Trinity College Dublin Working Paper 01/2011 at page 23
[191] Fifty Plus in Ireland 2011: First Results from the Irish
Longitudinal Study on Ageing (TILDA), at 90, available at www.tilda.ie.
[192]
Kurrle “Treatment or Mistreatment? Medication as an Agent of Abuse of Older
People” World Elder Abuse Awareness Day, 15 June 2007, available at
www.agedrightsasn.au/events.
[193]
House of Commons Health Committee Elder Abuse Second Report of Sessions
2003-04 at 18.
[194] Ibid.
[195] Ibid at 19.
[196] Towards a Restraint Free Environment in Nursing Homes
(Department of Health, 2011)
[197] Towards a Restraint Free Environment in Nursing Homes (Department
of Health, 2011) at 2/
[198] Banerjee “The use of anti-psychotic medication for people
with dementia: Time for action” A Report for the Minister of State for Care
Services, October 2009.
[199] Report of the Expert Group on Resource Allocation and
Financing in the Health Sector (Department of Health and Children 2010) at
122.
[200]
Law Reform Commission Consultation Paper on Legal Aspects of Carers (LRC
CP 53-2009) at paragraph 3.33.
[201] Ibid at paragraph 2.22.
[202]
Standard 4 (4) of the National Care Standards (2005).
[203] NFR – 17.
[204]
See also HSE National Financial Regulation: Patient Private Property
(NFR – 22). This provides that the HSE must not allow any client’s funds in its
safekeeping to be utilised for any purpose without the clear permission of the
client other than where the client is unable to give that permission due to a
lack of capacity. It also contains detailed provisions regarding the approach
to be taken to clients’ funds in the event of incapacity. Also of relevance is
Standard 9 of HIQA National Quality Standards for Residential Care Settings
for Older People in Ireland which sets out provisions in respect of the
resident’s finances. Standard 9.3 provides that where any money belonging to
the resident is handled by staff within the residential care setting, signed
records and receipts are kept. Where possible, the records and receipts are
signed by the resident or his/her representative.
[205] [2003] EWHC
167 (Admin) (High Court of England and Wales, 18 February 2003). The case
is discussed in Chapter 1 in the context of the discussion of the impact of the
European Convention on Human Rights in professional home care.
[206] Law Reform
Commission Consultation Paper Legal Aspects of Carers (LRC CP
53-2009) at paragraph 4.52.
[207]
Standard 11.2 of the Domiciliary Care Agencies National Minimum Standards.
The standards also contain guidance on criminal history disclosure and vetting
procedures. The Commission will consider such issues in Section D below.
[208]
Standard 22 of HIQA National Quality Standards for Residential Care Settings
for Older People in Ireland.
[209] Report of the Working Group on Elder Abuse Protecting Our
Future (2002) at paragraph 2.3.
[210]
HSE Implementation of ‘National Quality Home Care Support Guidelines’
(2008) at 6.
[211] Guideline 18 of
HSE Draft National Quality Home Care Support Guidelines (2008) at 30.
[212]
Law Reform Commission Consultation Paper on Legal Aspects of Carers (LRC
CP 53-2009) at paragraph 3.11.
[213]
House of Commons Health Committee Elder Abuse Second Report of Sessions
2003-2004 at 14.
[214] Law Reform
Commission Consultation Paper Legal Aspects of Carers (LRC CP 53-2009)
at paragraph 4.02-4.09
[215] Ibid at paragraph 4.22.
[216] Ibid at paragraph 4.12.
[217]
Report of the Expert Group on Resource Allocation and Financing in
the Health Sector (Department of Health and Children 2010) at 114.
[218] Report of the Expert Group on Resource Allocation and
Financing in the Health Sector (Department of Health and Children 2010) at
114.
[219]
The HSE National Guidelines and Procedures for the Standardised
Implementation of the Home Care Packages Scheme (2010) specifically state
that the extent of the support available pursuant to the Scheme is subject to
the resources allocated each year to the HSE for its operation.
[220] Ibid at paragraph 4.32.
[221]
Law Reform Commission Consultation Paper (LRC CP 53-2009) at paragraph 4.09.
[222]
The Government Legislative Programme indicates that publication of the Mental
Capacity Bill is expected in early 2012. The Legislative Programme is available
at www.taoiseach.ie/eng/Taoiseach_and_Government/Government_Legislation_Programme/SECTION_B1.html.
[223]
Law Reform Commission Report on Vulnerable Adults and the Law (LRC
83-2006).
[224]
Head 32(2) of the Scheme of Mental Capacity Bill 2008.
[225]
Head 32(2)(i) of the Scheme of Mental Capacity Bill 2008.
[226] Head 16(4)
of the Scheme of Mental Capacity Bill 2008.
[227]
Law Reform Commission Consultation Paper Legal Aspects of Carers (LRC CP
53-2009) at paragraph 4.56.
[228] Ibid.
[229] Ibid at paragraph 4.57.
[230]
Law Reform Commission Consultation Paper Legal Aspects of Carers (LRC CP
53-2009) at paragraph 4.39.
[231]
Standard 7 of HIQA National Quality Standards for Residential Care Settings
for Older People in Ireland (2008) and Standard 13.11 of HIQA National
Quality Standards for Residential Care for People with Disabilities (2009).
[232] Pillinger National
Advocacy Programme for Older People in Residential Care: An Evaluation (Commissioned
by the HSE, 2011) at 7.
[233]
Ibid at 7.
[234]
Section 7A(1) of the Comhairle Act 2000, as amended by section 5 of the
Citizens Information Act 2007.
[235]
Flynn “Ireland’s Compliance with the Convention on the Rights of Persons with
Disabilities: Towards a Rights-based Approach for Legal Reform?” (2009) 16(1)
DULJ 357.
[236] Pillinger National
Advocacy Programme for Older People in Residential Care: An Evaluation (Commissioned
by the HSE, 2011) at 5.
[237] Pillinger National
Advocacy Programme for Older People in Residential Care: An Evaluation (Commissioned
by the HSE, 2011) at 7. At page 8 of the evaluation report, the importance of
the role of Development Officers was referred to and the need to ensure that
paid professional Development Officers continue to carry out this important
support function in the future.
[238] It is noted on
page 5 of the evaluation report that €385,000 was provided for the Advocacy
Programme between 2008 and 2010 and that this amount was insufficient to
establish a robust and professional support structure for the advocacy
programme in residential homes.
[239] Pillinger National
Advocacy Programme for Older People in Residential Care: An Evaluation (Commissioned
by the HSE, 2011) at 6.
[240]
Ibid at 11. At page 12, the report notes that the HSE would need
to continue to play a key role both as a funder and as a partner in any new,
independent Advocacy Programme for Older People, particularly under the remit
of the HSE Director of Advocacy (Quality and Clinical Care Directorate).
[241]
Ibid at 6.
[242]
Ibid at 11.
[243]
Ibid at 12.
[244]
Ibid at 13.
[245] Law Reform
Commission Consultation Paper on Legal Aspects of Carers (LRC CP
53-2009) at paragraph 5.14.
[246] Ibid at paragraph 5.15.
[247]
Law Reform Commission Consultation Paper on Sexual Offences and Capacity to
Consent (LRC CP 63 – 2011) at paragraph 4.73.
[248]
Law Reform Commission Consultation Paper on Legal Aspects of Carers (LRC
CP 53-2009), at paragraph 5.19.
[249]
Law Reform Commission Consultation Paper on Sexual Offences and Capacity to
Consent (LRC CP 63 – 2011), at paragraph 4.75.
[250]
“New whistleblower laws outlined” The Irish Times 11 April 2011.
[251]
Relevant bodies, within the meaning of the Health Act 2004, includes (a)
the Health Service Executive, (b) a service provider, (c) any other person who
has received or is receiving assistance in accordance with section 39 of the Health
Act 2004 or section 10 of the Child Care Act 1991 and (d) a body
established under the Health (Corporate Bodies) Act 1961. Under section
2 of the Health Act 2004, a “service provider” is a person who enters
into an arrangement with the HSE to provide a health or personal social service
on behalf of the HSE.
[252]
Section 55A of the Health Act 2004. Also, in any action for damages for
defamation, section 18 of the Defamation Act 2009 affords the defence of
qualified privilege to a defendant who can prove that the statement was
published to a person who had a duty to receive or had an interest in receiving
the information. The defence is also open to a defendant who believed on
reasonable grounds that the person had such a duty or interest in receiving the
information and the defendant had a corresponding duty to communicate the
information to that person.
[253]
Section 55B of the Health Act 2004.
[254]
Law Reform Commission Consultation Paper on Sexual Offences and Capacity to
Consent (LRC CP 64-2011), at paragraph 4.83.
[255]
LRC CP 63-2011, at paragraph 4.64.
[256]
The Draft Scheme of the Criminal Justice (Withholding Information on Crimes
against Children and Vulnerable Adults) Bill 2011 was published by the
Department of Justice and Equality in 2011, available at www.justice.ie.
[257] An examination of local, national and international
arrangements for the mandatory reporting of child abuse: the implications for
Northern Ireland (National Society for the Prevention of Cruelty to
Children 2007) at 9.
[258]
LRC CP 63-2011, at paragraph 4.69.
[259]
LRC CP 63-2011, at paragraph 4.72.
[260] According to the
Economic and Social Research Institute (ESRI), basing its estimates on
population trends and disability projections, there will be a need for an
additional 13,324 long-term care places from 2006 to 2021, or 888 each year
from 2007 to 2021, for people of 65 years of age and over.
[261] Economic and
Social Research Institute Projecting the Impact of Demographic Change on the
Demand for and Delivery of Health Care in Ireland (2009) at xv.
[262]
Ibid at xvi.
[263]
Department of Health Health in Ireland: Key Trends (2011) at 8. This
document states that Ireland Population projections are based on; decreasing
mortality rates, immigration returning to moderate levels and fertility rate to
decrease gradually from present level of 2.07 to 2.02.
[264]
National Economic and Social Forum Care for Older People (2005) Report
32 at paragraph 1.38.
[265] Ibid at 1.37.
[266]
Eurostat Ageing Characterises the Demographic Perspectives of the European
Societies 72/2008 at 1.
[267]
Report of the Expert Group on Resource Allocation and Financing in
the Health Sector (Department of Health and Children 2010) at 104.
[268]
Fifty Plus in Ireland 2011: First Results from the Irish Longitudinal
Study on Ageing (TILDA), available at www.tilda.ie.
[269]
Economic and Social Research Institute Projecting the Impact of Demographic
Change on the Demand for and Delivery of Health Care in Ireland (2009) at
xviii.
[270] Ibid at xxi.
[271] Long-term
Care Report (2002)
at paragraph 8.22.
[272]
Fifty Plus in Ireland 2011: First Results from the Irish Longitudinal
Study on Ageing (TILDA), at 217, available at www.tilda.ie.
[273] Fifty Plus in Ireland 2011: First Results from the Irish
Longitudinal Study on Ageing (TILDA), at 2, available at www.tilda.ie.
[274] Fifty Plus in Ireland 2011: First Results from the Irish
Longitudinal Study on Ageing (TILDA), at 18 and 19, available at
www.tilda.ie.
[275] Fifty Plus in Ireland 2011: First Results from the Irish
Longitudinal Study on Ageing (TILDA), at 19, available at www.tilda.ie.
[276]
Report of the Comptroller and Auditor General Accounts of the Public
Services September 2011.
[277] National
Economic and Social Forum Care for Older People (2005) Report 32 at 116.
[278] European Commission
The Demographic Future of Ireland-from Challenge to Opportunity (October 2009)
at 5.
[279] Ibid at 7.
[280]
Nolan “Health: Funding, Access and Efficiency”, in O’Hagan and Newman (eds) The
Economy of Ireland 11th ed (Gill & Macmillan 2011) Chapter
12.
[281]
National Economic and Social Forum Care for Older People Report No. 32
(2005) at Table 1.2.
[282] Ibid at paragraph 1.11.
[283] Ibid at paragraph 1.14.
[284]
As mentioned earlier, the HSE introduced Draft National Quality Guidelines the
for Home Care Support Services in 2008 but these guidelines have yet to be
formally implemented. According to the HSE’s National Service Plan 2011,
the National Quality Guidelines for Home Care Services were to be implemented
in the second quarter of 2011. The HSE’s National Service Plan also
noted that its strategic priority for 2011 and beyond would be to maintain
older people in their own home for as long as possible. HSE National Service
Plan 2011, at 44.
[285] Report of the Expert Group on Resource Allocation and
Financing in the Health Sector (Department of Health and Children 2010) at
48.
[286] Ibid at 48.
[287] World
Health Organisation Home Care in Europe: The Solid Facts (2008) at
19-20.
[288]
OECD Long-term Care for Older People (2005) at 29.
[289] Ibid at 30.
[290] Ibid at 50.
[291]
National Economic and Social Forum Implementation of the Home Care Packages
Scheme Report No. 38 at paragraph 4.64.
[292]
Special Interest Group on Ageing (SIGA) Annual Report 2010 – 2011,
available on the Irish Association of Social Workers website, www.iasw.ie
[293] Department of
Health Comprehensive Review of Expenditure September 2011.
[294]
Department of Social and Family Affairs Study to Examine the Future
Financing of Long-Term Care in Ireland (2002).
[295] Ibid at paragraph 1.3.
[296] Ibid at paragraph 2.2.
[297] Ibid at paragraph 3.35.
[298] Ibid at paragraph 2.18.
[299]
See COI The Case for Change-Why England needs a New Care and Support System:
Engagement Findings.
[300] Ibid at 49.
[301] Ibid at 53.
[302] Ibid.
[303]
Department of Health Comprehensive Review of Expenditure (September
2011), at 133.
[304] Fifty Plus in Ireland 2011: First Results from the Irish
Longitudinal Study on Ageing (TILDA), at 5, available at www.tilda.ie.
[305] Ibid at paragraph 2.73.
[306] Ibid at paragraph 3.20.
[307] Ibid at paragraph 6.98.
[308] Ibid at paragraph 6.99.
[309]
OECD Long-term Care for Older People (2005) at 81.
[310]
Law Reform Commission Consultation Paper Legal Aspects of Carers (LRC CP
53-2009) at paragraph 4.26.
[311]
Department of Social and Family Affairs Study to Examine the Future
Financing of Long-Term Care in Ireland (2002) at paragraph 6.101.
[312] Ibid at paragraph 6.102.
[313]
While the Mercer Report noted that a potential difficulty with social insurance
schemes would be that people who could afford to make a contribution towards
the costs of their long-term care would not be required to do so, matters have
progressed since then and in 2007 the Fair Deal Scheme saw the introduction of
a model of funding nursing home care whereby those who were in a position to
make a contribution towards the costs of their nursing home care would make such
a contribution. See Nursing Home Support Scheme Information Booklet
available at www.hse.ie.
[314] Ibid.
[315]
The Report of the Expert Group on Resource Allocation and Financing in the
Health Sector (July 2010), at 63, noted that the health levy, or the amount
of money earmarked each year for health care, is too small to affect decisions
on the overall level of public health expenditure in Ireland.
[316]
Support for the funding of long-term care by way of a social insurance scheme
is strong. This approach to funding was also advocated by Comhairle in its
submissions to the Department of Social and Family Affairs at the time of the
writing of the Consultation Document on the Study to Examine the Future
Financing of Long-term Care in Ireland. In its submissions, Comhairle
expressed its agreement with the proposal that “long-term care services should
be funded by Social Insurance. We would, however, point out that general
taxation must continue to play a significant role in health and service
provision for people requiring long-term care and that the levying of social
insurance contributions on investment income (as is the practice in some countries)
should also be considered.”
[317] Ibid at paragraph 6.108.
[318] Ibid at paragraph 6.110.
[319]
OECD Long-term Care for Older People (2005) at 83.
[320] Ibid at 84.
[321] Ibid.
[322] Ibid.
[323]
Department of Social and Family Affairs Study to Examine the Future
Financing of Long-Term Care in Ireland (2002) at paragraph 6.113.
[324]
“Majority back universal healthcare, survey finds” The Irish Times, 25
October 2011; “Most Back Universal Healthcare” Belfast Telegraph, 24
October 2011.
[325]
The 2011 Pfizer Health Index, available at www.pfizer.ie.
[326] Fifty Plus in Ireland 2011: First Results from the Irish
Longitudinal Study on Ageing (TILDA), at 5, available at www.tilda.ie.
See also the Report of the Expert Group on Resource Allocation and Financing
in the Health Sector (July 2010), which noted, at 44, that notwithstanding
the eligibility for heavily subsidised public hospital care, in Ireland in
2009, close to 50% of the population held supplementary private health
insurance, which mainly covers hospital care. The Report attributed the high
percentage of people bearing private health insurance in Ireland to, in part,
the unusual role of the VHI in the Irish health-care sector and the late
arrival of free hospital cover in Ireland. According to the Report, the high
level of uptake on this type of insurance also reflects the fact that private
health insurance in Ireland has been available at low prices in comparison with
other countries, which in turn has been linked to the limited scope of services
covered, subsidy of services in public hospitals and the availability of tax
relief on premiums.
[327] Fifty Plus in Ireland 2011: First Results from the Irish
Longitudinal Study on Ageing (TILDA), at 204, available at www.tilda.ie.
[328]
Department of Social and Family Affairs Study to Examine the Future
Financing of Long-Term Care in Ireland (2002) at paragraph 6.39.
[329] Ibid at paragraph 6.41.
[330] Ibid at paragraph 6.47.
[331] Ibid at paragraph 6.53.
[332] Ibid at paragraph 6.63.
[333] Ibid at paragraph 6.64-6.65.
[334]
These figures are based on 2005 data. See OECD Long-term Care for Older
People (2005) at 81.
[335] Ibid at 83.
[336] Ibid.
[337]
Department of Social and Family Affairs Study to Examine the Future
Financing of Long-Term Care in Ireland (2002) at paragraph 6.10.
[338] Ibid at paragraph 6.11.
[339] Ibid at paragraph 6.13.
[340] National
Council for the Elderly The Role and Future Developments of Nursing Homes in
Ireland (1991) at 145.
[341]
Department of Health Comprehensive Review of Expenditure (September
2011). The Department has also stated that there is a commitment to formally
review the scheme in 2012. The review will look at the ongoing sustainability
of the scheme, the relative costs of public versus private provision, and the
balance of funding between residential and community care.
[342] Nursing Home Support Scheme Information Booklet
available at www.hse.ie.
[343]
Report of the Expert Group on Resource Allocation and Financing in the Health
Sector (Department of Health and Children 2010) at 50.
[344]
Department of Health Comprehensive Review of Expenditure (September
2011) at 128.
[345] Report of the Expert Group on Resource Allocation and
Financing in the Health Sector (Department of Health and Children 2010) at
118.
[346]
OECD Long-term Care for Older People (2005) at 85.
[347] Ibid at 88.