The recent Irish Examiner editorial ‘Constant vigilance is needed’ (26 November 2020) in nursing homes raises a valid point. In order to protect the safety and welfare of residents, swift action is required.
Our priority in HIQA has always been to protect the health and safety of people using services.
As Chief Inspector my role under the Health Act 2007 is to register and inspect nursing homes, and residential services for people with disabilities and children in need of care and protection to this end.
However, for many years now we have been raising the issue of the limited legal and enforcement powers of the Chief Inspector.
While we can take action to cancel the registration of a provider or attach additional conditions of registration — this is often a slow process (the legislation as it currently stands allows the service provider a right of reply of 28 days and an appeal) and the threshold to meet to cancel registration is very high.
The Act outlines that not only must the Chief Inspector be able to prove reasonable grounds for believing that there is risk to life or serious risk to the health or welfare of residents, but that such risk must arise because of “any act, failure to act or negligence” on the part of the registered provider.
The recent court order on Oaklands Nursing Home highlights the need for legislative change.
While we had identified a lack of governance and oversight of the service from May 2020, in line with the legislation, we needed to prove the risk to residents and a failure to act or negligence of the provider. The registered provider committed to taking action to address our concerns.
Over the subsequent weeks and months, we continued to meet regularly with the service provider, maintained contact, and re-inspected the service on numerous occasions to ensure residents’ safety.
Following the June inspection, we referred the centre to the Health Service Executive (HSE) for infection prevention and control support. Again, assurances were provided by the provider and immediate action to protect residents was taken.
On 4 November 2020, our inspectors entered the nursing home and found ‘a centre in chaos’ in the middle of a COVID-19 outbreak.
That same day the HSE reached an agreement with the provider to take over the clinical operation and governance of the centre with immediate effect.
This reassured us that residents would be safe. We kept in close contact with both the centre and the HSE.
However, the situation quickly changed. The HSE informed us that they intended to depart from the service 12 days later which significantly changed our view of the ongoing risk in the centre.
We immediately carried out an inspection on 16 and 17 November.
It was clear that the position on the ground was critical and that the registered provider could not sustainably provide adequate and safe care to residents without the HSE’s support.
We immediately used our powers and an application under the Health Act was made on Thursday, 19 November 2020 in Kerry District Court to cancel the registration of Bolden (Nursing) Limited to operate the nursing home. This required the HSE to re-enter and provide care for the vulnerable residents, the majority of them having tested positive with COVID-19.
What this case and the recent editorial shows is the urgent need for regulatory reform. Due to limitations on our legal powers, we had to wait until the management of and safety of care in a nursing home had deteriorated to a significant level until we could cancel its registration.
Around 32,000 people live in nursing homes around the country – these are our parents, grandparents, siblings, aunts and uncles. They have been entrusted into care of private and State providers.
Whether in a nursing home, or any other care situation, vulnerable people should be supported to live their lives safely and to the fullest, receiving the best possible care and support.
People should not be subjected to significantly deteriorating care and service quality to the point their very lives are at risk because of legal limitations.
We believe that the quality and safety of our health and social care services would be greatly improved by a review of the current regulatory framework.
Any such change can only come from the Houses of the Oireachtas. In June of this year, we formally requested the Minister for Health, through his department, review and strengthen components of the Health Act and associated regulations governing the operation of designated centres such as nursing homes.
The current legislation is limited, but it can be changed to allow for that swift action that we as a regulator need to have, and that residents deserve.
We are currently working with the Department in this regard and are also preparing a further submission to the Department of Health on wider regulatory reform.