Publication
Care Denied - Failure to Provide Long-Stay Care for Under 65s
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Public Body:
Health Service Executive
An Investigation under section 4 of the Ombudsman Act 1980
Office of the Ombudsman
May 2013
This report deals with two separate but related complaints against the Health Service Executive (HSE) arising from the refusal of the HSE to refund fees paid for private nursing home care. The complaints were made on behalf of two women who, it is claimed, were left with no alternative but to avail of private nursing home care because of the failure of the relevant Health Boards, at the time, to provide public long-stay care. In both cases, the women involved had medical cards. In both cases their families applied under the Health Repayment Scheme (See Note 1) for a refund of the private fees; and in both cases the claims were rejected. The Ombudsman accepted that the Health Repayment Scheme was not the most appropriate mechanism for dealing with the circumstances of these two cases. Nevertheless, she decided to investigate the complaints to establish whether redress might be provided in some other way.
As a result of this investigation, the Ombudsman has recommended payments of €130,000 to one claimant, and €38,000 to the other claimant, and these recommendations have been accepted by the HSE.
The two cases in this report
1. Mrs. Catherine Bennett [The names in this report have been changed.]
Mrs Bennett entered a private nursing home in May 2002 at the age of 57 years. At that time, she was suffering from a slow-growing malignant brain tumour which left her in need of constant care. Her condition gradually deteriorated and she died three years later, in May 2005.
The complaint in her case was made by her daughter, Ms Ann Carthy. In her complaint Ms Carthy outlined how her mother had been forced to go into private nursing home care as the then South-Eastern Health Board was unable to provide her with a place in a long-term public institution. In fact, her original application for placement in public nursing home care was rejected on the basis that she was under 65 years of age. There was only one long-term facility operated by the SEHB in the area, and the management there had told her that her mother would not be allocated a place there as she was under 65 years of age.
Ultimately, Ms Carthy had to make private arrangements for the care of her mother, who had to pay a substantial portion of her nursing home costs. In fact, as her mother was a medical card holder, she should not have had to meet any of those costs. Ms Carthy applied for a refund of these charges, on behalf of her mother’s estate, under the Health Repayment Scheme. This was refused by the HSE on the grounds that she was a private resident in a private nursing home, and was therefore excluded from the repayment scheme. The refusal of the refund was upheld on appeal, and Ms Carthy then complained to the Ombudsman.
2. Ms. Mary Connolly
Ms Connolly suffered a stroke in 1996 and, as a result, required long-term residential care. She was 53 years old at that time. The complaint was made on her behalf by her nephew, Mr Gerard Connolly, who has Power of Attorney and looks after her affairs.
He tried to place her in a public nursing home but the then Mid-Western Health Board failed to provide a place for her as it had no appropriate long-stay facilities for those under 65 years of age. He was therefore forced to place her in a private nursing home. She entered the nursing home in 1997, and has been there since then. In his complaint he reported that he had spent over €218,000 on his aunt’s care since she entered the nursing home, even though she had a medical card and should not have had to suffer these charges. The costs were partly financed by the sale of her home, and the balance was met from her social welfare payments and from contributions from members of her family.
In 2006 Mr Connolly applied under the Health Repayment Scheme for a refund of the charges incurred in paying for his aunt’s care. This application was refused on the grounds that the repayment scheme does not apply to private patients of private nursing homes. He appealed this refusal and his appeal was also rejected.
Ms Connolly now receives support under the Nursing Home Support Scheme and her current care costs are therefore no longer a burden on her family. Mr Connolly’s complaint to the Ombudsman concerned the failure of the HSE to provide proper nursing home support for his aunt, and its failure to refund the costs incurred.
The HSE’s Position
Prior to the commencement of this investigation the Ombudsman requested the HSE to review its position on the cases. After a long delay, the HSE responded, outlining its position. In summary, it said that it had acted in accordance with its statutory obligations in providing long-stay care to patients “within the limits of the resources available.” It acknowledged that under-65s are as entitled as over-65s to long-stay care, but said that different facilities are often required by under-65s in those circumstances. In any case, it said that it would not be in a position to pay compensation as to do so would restrict its funding for other patients and services.
Obstruction of the Ombudsman
The Ombudsman was aware that more than 300 sets of legal proceedings against the HSE had been initiated in other broadly similar cases, and that some of those cases had been settled out of Court. The Ombudsman considered that the details of the settlements were relevant to the cases in this investigation. The Ombudsman therefore required the HSE to provide details of the settlements in accordance with her powers under the Ombudsman Act.
The HSE took some time to provide a clear response, but eventually it stated that it was refusing to provide the information required. The Ombudsman’s view is that this amounted to obstruction of her investigation and she will be reporting this to the Dáil and Seanad in her forthcoming Annual Report for 2012.
The Ombudsman’s Findings
The Ombudsman found that the HSE was obliged to provide long-stay care for the patients involved. She found that it had failed to do so, and that the two women concerned incurred major costs which they should not have had to incur. Insofar as this failure to provide nursing home care arose because the women in question were under 65 years of age, the Ombudsman found that this was age discrimination and contrary to the Equal Status Acts.
She recommended that €130,000 in compensation should be paid to Ms Connolly and €38,000 to Ms Carthy. The HSE has accepted these recommendations. However, it has not accepted the Ombudsman’s findings.
Note 1 The Health Repayment Scheme
Prior to 2005, there was no legal basis for imposing charges for hospital in-patient services (which included long-stay hospital care) on people with medical cards. However, despite the absence of a legal basis for doing so, health boards had long been charging medical card patients for long-stay care. The validity of these charges was questioned over the years, not least by the Office of the Ombudsman. In 2004 the Department of Health sought the advice of the Attorney General on the matter. The Attorney General advised that the practice was not legally sound and, in December 2004, charges on people with medical cards were stopped.
The Health Repayment Scheme was introduced in 2006 to provide for the repayment of the illegal charges.
What this Report is about.
This investigation report deals with two separate but related complaints against the Health Service Executive (HSE) arising from the refusal of the HSE to refund fees paid for private nursing home care. The periods to which the complaints relate are 2002– 2004, in one case, and 1997 – 2009, in the other case. The complaints were made on behalf of two women who, it is claimed, were left with no alternative but to avail of private nursing home care because of the failure of the relevant Health Boards, at the time, to provide public long-stay care. In both cases, the women involved had medical cards. In both cases their families applied under the Health Repayment Scheme for a refund of the private fees; and in both cases the claims were rejected. The families complained to the Ombudsman following the rejection of their claims under the Health Repayment Scheme.
The issues raised in these complaints may be formulated, in summary, in these three questions, which are the main focus of this report:
- Did the Health Boards in question have a legal duty to provide long-stay care for the two women concerned once they were assessed as in need of such care?
- If the answer to 1. is YES, did the Health Boards in question fail to meet their duty to provide long-stay care?
- If the answer to 2. is YES, should the HSE (as successor to the Health Boards) compensate the complainants for the costs of private nursing home care where those costs were incurred because of the Health Boards’ failures?
The report arises from an investigation conducted by the Ombudsman in accordance with Section 4(2) of the Ombudsman Act 1980. Where, following an investigation, the Ombudsman proposes to make comment or criticism which is adverse to a public body, she is obliged to allow that public body an opportunity to make representations to her in relation to the proposed findings or criticism. In this case, and in line with standard Ombudsman practice, the HSE was provided with a draft of the Ombudsman's report and allowed an opportunity to comment on it (See Appendix 2 of this report). In finalising the report, the Ombudsman has had regard to the representations made by Health Service Executive.
The report also addresses issues arising from the failure of the HSE to co-operate fully with the investigation, as required under the provisions of the Ombudsman Act 1980.
The Ombudsman’s Findings
The focus of this investigation was set out, early in this report, in the form of the following three questions:
1. Did the Health Boards in question have a legal duty to provide long-stay care for the two women concerned once they were assessed as in need of such care?
2. If the answer to 1. is YES, did the Health Boards in question fail to meet their duty to provide long-stay care?
3. If the answer to 2. is YES, should the HSE (as successor to the Health Boards) compensate the complainants for the costs of private nursing home care where those costs were incurred because of the Health Boards’ failures?
Having completed the investigation, it is clear:
1. that the Health Boards in question did have a legal duty to provide long-stay care for the two women concerned once they were assessed as in need of such care; and
2. that the Health Boards in question failed to meet their duty to provide long-stay care for these two women.
The question of whether, or to what extent, compensation should be paid is a matter for recommendation by the Ombudsman - see Chapter 8.
Arising from this investigation, the Ombudsman makes the following findings:
1. The South Eastern Health Board and the Mid-Western Health Board (subsequently the Health Service Executive) failed in their statutory duty to provide long-stay care for the late Mrs Bennett and for Ms Connolly and these two women (along with their families) suffered significant adverse consequences as a result of these failures.
2. The failures of these Health Boards (and of the Health Service Executive) to meet their statutory obligations was contrary to fair or sound administration [in the sense in which these terms are used in section 4(2)(b) of the Ombudsman Act 1980, as amended].
3. The failures of these Health Boards (and of the Health Service Executive) to provide long-stay care for Mrs Bennett and for Ms Connolly arose, to a very considerable extent, because of a more general failure to provide appropriate long-stay care for people under the age of 65 years; these failures (or "inactions") were improperly discriminatory [in the sense in which this term is used in section 4(2)(b) of the Ombudsman Act 1980, as amended] in that, in effect, there was no appropriate provision made for people under the age of 65 years and whatever provision existed was directed at persons over the age of 65 years.
4. The failure of the South Eastern Health Board to provide long-stay care for the late Mrs Bennett, to the extent that it arose from a more general failure to provide long-stay care for people under 65 years, amounted to age discrimination of a kind which is prohibited under the Equal Status Acts.
5. The failure of the Mid-Western Health Board (and of the Health Service Executive) to provide long-stay care for Ms Connolly, during the period 2000 - 2009, to the extent that it arose from a more general failure to provide long-stay care for people under 65 years, amounted to age discrimination of a kind which is prohibited under the Equal Status Acts.
a. Notification Letter:
Our Reference : HRS/08/1417
& HRS/10/0746R
18 January 2012
Mr Cathal Magee
Chief Executive Officer
Health Service Executive
Dr Steevens' Hospital
Dublin 8.
Dear Mr Magee,
NOTIFICATION OF OMBUDSMAN INVESTIGATION
Ms Ann Carthy, Co. Tipperary
Mr Gerard Connolly, Co. Limerick
I refer to two separate complaints against the Health Service Executive received by the Ombudsman from Ms Carthy and Mr Connolly. The complaints were made initially following the refusal of claims made by Ms Carthy and Mr Connolly under the Health Repayment Scheme (HRS). Ms Carthy's HRS claim was in respect of her late mother, Mrs Catherine Bennett, while Mr Connolly's claim was in respect of his aunt, Ms Mary Connolly. Both complainants contend that their relative had no option but to enter long-stay nursing home care in private nursing homes because of the failure of the relevant health board (SEHB and MWHB respectively) to provide for their long-stay care needs. These complaints have been the subject of detailed correspondence between the HSE and this Office. I attach a copy of our letter of 21 July 2011 which sets out the facts (as we currently know them) of the two cases. Following the refusal of their claims under the HRS, the issue now raised by these complainants is that of financial redress for the costs incurred for private nursing home care when, as they contend, their relatives' care needs should have been provided for by the relevant health board.
Having conducted a preliminary examination of these complaints, the Ombudsman is satisfied that the complainants (and their relatives) have been adversely affected by the actions of the health board/HSE and that these actions may have been taken on the basis of one or more of the grounds identified at section 4(2)(b) of the Ombudsman Act 1980 (copy attached). Accordingly, the Ombudsman has decided to carry out an investigation of the complaints under section 4 of the Ombudsman Act 1980. The Ombudsman proposes to deal with the two complaints in the one investigation. I attach a Statement of Complaint for each of the cases.
In line with our normal investigation procedures, the Ombudsman invites the HSE to make a written submission in response to the Statements of Complaint. Any such submission should reach this Office by Thursday 9 February 2012. If the HSE chooses not to make a submission by that date, we will proceed with the investigation in the normal way.
Provision of Information and Documents
Bennett Case - while we have some documents provided by the HSE in the course of the preliminary examination, what we have seems incomplete. For the purposes of the investigation the Ombudsman requires the provision of all documents relating to Mrs Bennett's case held by the HSE to include:
- public health nurse records for the period prior to May 2002,
- Nursing Home Subvention file and Subvention appeal file,
- any records held by Disability Services in Tipperary,
- any records held otherwise from the former Community Care Area Office,
- any records arising from the HRS claim.
Connolly Case - to date we have not sought any specific documentation from the HSE in the case of Mary Connolly. For the purposes of the investigation the Ombudsman requires the provision of all documents relating to Ms Connolly's case held by the HSE to include:
- records from the ____________ Hospital, Limerick (1996/1997) where Ms Connolly was under the care of Dr.________, geriatrician,
- Nursing Home Subvention file and Subvention appeal file,
- any records held by Disability Services in Limerick,
- any records arising from the HRS claim.
Bennett & Connolly Cases - it is known that the HSE (including its predecessor health boards) has had legal proceedings initiated against it by individuals (or those acting on their behalf) seeking redress for the expense incurred in having to avail of in-patient services in private facilities in circumstances where those individuals contend that the HSE (or one of its predecessor health boards) had a legal obligation to provide such services. It appears that the circumstances giving rise to these legal actions are to a considerable extent similar to the circumstances of the late Mrs Bennett and of Ms Connolly. It is also known that, while none of these cases has yet gone to hearing and judgment in the High Court, some have been settled out of court with compensation being paid to the plaintiffs. It is relevant to the Ombudsman's investigation to establish whether people, in circumstances broadly similar to those of the late Mrs Bennett and of Ms Connolly, have received some financial redress.
For the purposes of this investigation, therefore, the Ombudsman requires the provision to her of information on the terms on which these cases have been settled. This requirement may be met by the provision of copies of the settlement document in each case and, depending on the information contained therein, it may or may not be necessary to seek fuller information or documentation on these settlements. If it is the case that the settlements, or some of them, are covered by a confidentiality agreement, the Ombudsman will be happy to accept copies from which the plaintiffs' names and addresses have been redacted. In any event, the Ombudsman would not be identifying any of the plaintiffs in any report she publishes arising from this investigation.
Provision of all of this information and documentation is being required of the HSE in accordance with the statutory powers conferred on the Ombudsman under section 7 of the Ombudsman Act 1980 (copy attached). The documentation and information should be provided to the Ombudsman not later than Thursday 9 February 2012.
We may need to interview some HSE staff for the purposes of this investigation and, if so we will make the arrangements through the liaison officer, Mr Greg Price or any other HSE person designated as our contact person for the purposes of this investigation.
If you have any queries on the investigation, you are welcome to contact me at 01-6395650 (fintan_butler@ombudsman.gov.ie).
Yours sincerely
____________
Fintan Butler
Senior Investigator