How the State treated the elderly in need of nursing care

By Fergal Bowers

Editor

Irishhealth.com

Elderly people and their families are owed millions of pounds by the Department of Health because they were denied income they were legally entitled to. It is a scandal that has prompted the Health Minister and the Taoiseach to seek an investigation into how the Department of Health funded private nursing home care for the sick and old. As one fresh investigation gets underway, we already have the findings of an unpublished report by the Ombudsman into the issue.

His investigation into the State's dealings with mostly elderly patients who needed nursing home care is a damning indictment of our health service. The findings are the most serious to be levelled against the Department of Health and health boards in the history of the Irish health services. Most of the individuals concerned were elderly people who by definition were unable to care for themselves or be cared for at home by their families.

The main areas which the report deals are how patients were assessed for subventions for nursing home care, how these subsidies were paid, the way that the Department of Health and health boards operated the system and what the law required them to do. It also examines the confidential legal advice which the Department of Health had in its possession - but did not share with health boards that operated the system.

The reason why the Ombudsman came to investigate the subject arose from the "steady flow of subvention related complaints - more than 150 received since the commencement of the scheme in September 1993". The Ombudsman says that in an unusual development, the nature and pattern of the nursing home subvention complaints received since 1993 reflect not just the actions of individual officials or public bodies, but they reflect the corporate response of virtually an entire sector. The main complaints related to the refusal of subventions, or the payment of reduced rates of subvention, because of the operation of the means assessment system.

"The Ombudsman encountered what can only be seen as institutional resistance in his efforts to deal with the complaints received", the report says pointing to the Department of Health and health boards. It took the Department more than five years to acknowledge and deal with defects "of which it was aware prior to September 1993".

Under the Health Act of 1970, every citizen had the right to avail of inpatient care in a public hospital or home, or to opt instead for treatment in an approved private nursing home. Those with medical cards received care free of charge, while those without a medical card faced certain charges, depending on their income. The system allowed patients to keep a prescribed amount each week after the charge was imposed. What is significant here is that the charge was determined with reference to the income of the patient only - there was no statutory provision to have regard to the income of other members of the family.

In a significant development, new legislation, the Health (Nursing Homes) Act, 1990 -which came into force in September 1993 - was supposed to be a radical improvement on the old system. That is what the politicians promised. However, the Ombudsman's report claims that the Department of Health and health boards operated the new system in a way that was against the interests of patients and deprived them of their own money. The new system repealed a provision which allowed for the payment of subventions to patients who, instead of availing on inpatient services in a public hospital or home, opted instead for treatment in an approved private home.

According to the Ombudsman, "the Department was well aware that this strategy was likely to be legally unsound". It was done because of financial constraints in the health service.

But even before the new law, the existing law under the 1970 Health Act was being operated in an unusual manner. Health boards made use of other regulations the effect of which was to deprive the elderly of a choice. It meant that "many elderly patients in need of long-stay care were effectively left to fend for themselves", the Ombudsman says. Health boards 'froze' the number of approved beds in private nursing homes. So what typically happened then was that an elderly patient in immediate need of a long-stay care would be placed on a waiting list for a public bed if there was no approved bed in a private nursing home available. It also meant that some elderly patients were forced to find a place in a private home without any subvention.

At the time, the health service did not have enough long-stay beds of its own for the elderly due to financial cutbacks. The health service authorities could have 'bought-in' extra nursing home beds from private nursing homes but instead, a new system was devised in 1990. Patients (who were entitled to a nursing home bed in a public hospital) were to be paid a subvention towards the cost of a nursing home bed in a private hospital. They were supposed to be means-tested on their own income, if any, and were supposed to get 'pocket money' - a defined rebate. But, according to the Ombudsman's report, the system was operated against the elderly and money was taken from them. "It is an escapable conclusion that the Department (of Health) presided over a set of practices for a period of more than five years in the knowledge that those practices were legally indefensible", the report states.

According to the report:

• the elderly were forced to chose private care because public beds were not available
• health boards withheld the information that elderly patients were legally entitled to long-stay care from the health board and that they should only enter a private nursing home if they genuinely chose this type of care
• health boards 'misled' families into believing they had an obligation to contribute to the costs of care
• the Department of Health 'knew from the outset' that the family assessment arrangements were legally invalid

Based on the Department's own assessment, it could now have to pay back around £6 million to families for being short-changed under the assessment system. In relation to the 'pocket money' system, this was supposed to mean that a sum equivalent to one fifth of the weekly rate of the Old Age Non-Contributory Pension would be disregarded for the income assessment system. In practice it should have meant pensioners in private nursing homes getting to keep £11 or much more a week. However, it did not operate that way and again, the State owes pensioners - some of whom are now deceased - possibly millions of pounds.

The family assessment issue was the single biggest source of complaint to the Ombudsman. It divided families and upset parents and the children. It is claimed that health boards were illegally including the income of the applicant's children in the calculation of what subvention they were entitled to.

The regulations also penalised patients who entered a nursing home prior to claiming and being assessed for a subvention. These patients could be debarred from claiming a subvention for two years. There was the bizarre system whereby children might be supporting an elderly parent in a nursing home because no subvention was available, but when a subvention claim was eventually accepted by the health board - the existence of the children's support up to then could be included as an item of means, resulting in no subvention, or a very reduced subvention.

It was not until January of last year and "only after a sustained series of contacts with the Department on the matter, were the impugned provisions deleted from the regulations", according to the Ombudsman. "Only towards the end of the period did the Ombudsman discover, following a detailed examination of its records, that the Department had been aware from the outset that the provisions in question were seriously flawed", the report states. The fact was that the legislation concerned - the 1990 Health (Nursing Homes) Act - did not make adult children legally liable for parents' hospital or nursing home costs.

According to the Ombudsman, the issues at the heart of this matter have to do with good administration and good government. Too much was left to be dealt with by regulations rather than by primary legislation. The partnership between the political process and the Department of Health administration "was far from being an effective one". He notes that discussion on some fundamental aspects of the subvention scheme - whether children should financially support their elderly parents - was conducted almost exclusively by health administrators "to the virtual exclusion of the politicians".

Among the 'doubtful practices' identified in the report are:

• the making of regulations containing provisions which are likely to have been against the law, including at least one instance in which the likely validity probably had been known in advance
• the inclusion in a regulation of a provision which, it appears, it was intended from the outset would not be applied
• the 'unreasonable' prolongation of discussions with the Ombudsman in relation to practices which, it appears, were known from the outset to be invalid or incorrect
• the failure of some health boards to alter a practice even where the legal advice was that the practice was incorrect and where the Ombudsman had expressed the same opinion
• the Ombudsman's experience of complaints between 1993-99 suggest that the underlying problems of complainants, which surfaced prior to September 1993, continue to manifest themselves under the new regime

The varying practices by health boards, despite the law, are highlighted in the report. For example, the Eastern Health Board "adopted its own unique approach" for approved nursing home places. For most of 1980-93, the EHB limited the payment of nursing home subventions to a maximum of six weeks per patient. After that period, the patient would receive a subvention on the basis of a non-statutory, means-tested arrangement.

During talks with the Ombudsman on the operation of the nursing home subsidy system, the Department at a late stage said that it had been under a misapprehension in its preparation of the 1990 legislation. "The Department claimed that, in drafting the Bill, it had not understood that nursing home type care equated to 'inpatient services' under the Health Acts. In effect, the Department claimed not to have realised that any person in need of nursing home type care already had a statutory right to be provided with this service by the health board. It is hard to credit that the Department could have been unaware of such a fundamental feature of its own legislation", the Ombudsman concludes.

The Department then indicated that it would need to change the 1970 Health Act which defined 'inpatient services' to exclude nursing home care from public entitlement.

In the end, it did not do this but introduced a new charging system whereby a health board opted to provide inpatient services by placing a patient in a registered private nursing home. This report unveils for the first time, how the elderly lived and died under that system.

* Fergal Bowers is editor of irishhealth.com