Maeve Sheehan — nursing home charges now under scrutiny

The regulator is in talks with the Government for more powers to examine nursing home contracts, writes Maeve Sheehan

TOP-UP fees levied by private nursing homes on residents struck a chord with many Sunday Independent readers. What was most striking about the families who contacted this newspaper in the wake of last week’s revelations of charges amounting to thousands a year for social activities was their fearful insistence on protecting their identities.

There is the woman whose semi-paralysed husband is paying €104 a month for social activities, and takes €100 a month out of her own pension to pay for this and other additional charges. “If you complain, you are the worst in the world,” she said.

There is the daughter of a woman who was charged a 20pc administration fee on top of actual fee for having her hair done or having a newspaper delivered.

And there is the woman who challenged the private nursing home that terminated her elderly father’s contract and gave him a month to leave. She was told the nursing home did not have to give her a reason. “The family were quite shocked,” she said. The nursing home eventually withdrew the termination notice, after a meeting with her.

In each case, the families involved insisted that neither their names nor that of the nursing homes should be disclosed. It is not so much about fear of retribution, but nursing homes hold most of the cards.

According to the support and advocacy group Sage, spiralling compulsory extra fees are the symptom. The underlying problem lies in the nursing home contracts themselves, which the organisation claims delivers the power to the nursing home.

Mervyn Taylor, manager of Sage, said contracts need to contain more safeguards for residents. The organisation has started analysing nursing home contracts with its legal adviser, and has come up with some troubling findings.

Its research has found “clear evidence” that nursing home contracts were being signed on behalf of people who were capable of doing so themselves, and were also being signed on behalf of people who did not have capacity but who had not been properly assessed. In either situation, the contracts were “illegal” and the issue requires “urgent attention”. Sage found that a nursing home’s rights to terminate a contract with immediate effect are “far-reaching and provide little or no protection for residents”. In fact, private tenants have greater rights than an old person in a nursing home.

The typical contract allows for a four-week notice period if the contract is to be terminated by either nursing home or resident. However, the nursing home can cancel the contract “with immediate effect” based on the “opinion” of the owner that the resident or family member is “disruptive” or “aggressive” or a health and safety risk.

The owner can also “terminate” with “immediate effect” if the resident has not given 12 weeks’ written notice that he or she can no longer afford “all fees and sums”. The owner is not obliged to consult in advance with either the State authorities or the resident’s next of kin.

Nursing homes can be fraught places, and staff and residents are entitled, of course, to work and live in a peaceful environment, without risk from other residents or their families of disruption or danger. But no agency is actually monitoring whether residents are actually evicted, or are threatened with eviction, and why. Mervyn Taylor said his organisation has had a number of experiences in relation to notices to quit, “which is why we have started gathering data on this issue”, he said.

Sage conducted its own analysis of 61 cases on its books relating to nursing home accommodation. It found 27 cases in which notices to quit were issued to residents. The data is still being analysed and there may be a simple explanation, such as a nursing home closing. But the exercise does highlight the gap in what is known.

Many nursing homes base their contracts on templates — including one for those who don’t have capacity — created by Nursing Homes Ireland, the industry association. It includes a general four-week notice period for ending the contract and no notice in “exceptional circumstances”.

In a statement, Nursing Homes Ireland said that its contracts “enshrine the protections offered in law through legislation and regulation” and are “effective arrangements” for residents.

“All nursing homes have a duty of care to the resident, all residents and staff members. It may be necessary to discharge a resident to a more appropriate setting for their own safety and the safety of others. Such discharges are a very rare occurrence. All nursing homes have to ensure a safe discharge to an appropriate setting.” The statement added that “complaints legislation is very clear that the complainant should not be discriminated against for making a complaint”.

When residents and their families raise concerns about issues in nursing home contracts, such as fee increases, agencies such as the HSE or the Ombudsman are often unable to intervene. This is because a contract is a legally binding agreement only between the residents and the nursing home.

The Health Information and Quality Authority (Hiqa) clearly has concerns about nursing home contracts too, or at least its powers to examine them. The regulator is in talks with the Department of Health to amend the regulations in the Health Act to provide greater protections for nursing home residents in contracts, according to a statement to the Sunday Independent.

“Specific concerns include situations where residents are charged for services that they are not availing of, such as social activities,” the statement said. “More worryingly, residents are charged for services which they are already entitled to receive free of charge.”

Even though all nursing homes are supposed to have contracts in place, listing all fees, the Hiqa statement said “vulnerable people will often have taken up residence in a nursing home before they have seen, agreed and signed the contract of care”. The existing regulations don’t allow Hiqa to conduct any sort of “in-depth analysis” of nursing home contracts. “As long as there is a contract in place and it sets out the relevant charges, a nursing provider has met the current regulatory requirement.”

According to the regulator, this is no longer enough.

‘Concerns include where residents are charged for services they do not use...’