December 2020 – The absence of any statutory mechanism to investigate individual complaints against nursing homes is one of the more glaring omissions from HIQA’s current model of regulation. While HIQA carries out inspections of private and public nursing homes, it cannot investigate individual complaints into residential centres. This state of affairs has been a cause of much distress and frustration for countless nursing home residents and their families over these past eleven years.

As a resident or relative, you are encouraged in the first instance to raise any concerns and complaints with the nursing home provider, ask for a copy of the complaints process and keep a record of your complaint, and failing a satisfactory outcome to speak to an independent advocate. However, in some cases, the advocate has been appointed by the nursing home provider and cannot be described as truly independent. Moreover, while this approach of working with the nursing home provider and advocate may prove effective in some cases, what happens if your issue is not resolved? What happens if you are a relative with a serious concern or even a staff whistle blower? Where do you go?

According to HIQA’s own online booklet plus media reports, it seems that if you raise a complaint about a nursing home with HIQA, it is not likely to be actively investigated but rather noted and reclassified as a “concern” and used to inform the next inspection. HIQA can also ask the nursing home provider for a plan as to how they will address the issue, look for more information or carry out a risk-based assessment to assess the quality and safety of care provided to those using the service. HIQA also use this feedback to track what is happening in health services, identify trends and patterns and ensure services meet essential standards of care.

According to the regulator, the feedback can also be used to influence decision regarding renewal of nursing home registrations. HIQA also says that its inspectors review and risk rate all unsolicited information and mandated monitoring notifications received. If there are concerns related to the safety of residents and the quality of care that they are receiving, providers are required to take immediate action to address this. However, it is not clear how the overall complaints process is managed and how many complaints each year fall into this latter category.

This process is unsatisfactory for a number of reasons. HIQA appears to be in the position of judge and jury on the seriousness of the alleged abuse, its impact on the alleged victim, the prospect of the abuse recurring, or being perpetrated on another resident – all of this is done in the absence of proper investigative tools and resources and apparently in secret. For the concerns on the “milder” end of the spectrum, which are used to inform future inspections, it is also not clear from published HIQA inspection reports if and how these concerns are reviewed and resolved by the inspecting parties.

According to media reports, in October 2018, HIQA was criticised over its handling of abuse allegations. It had received more than 4,600 allegations of abuse of disabled people in residential care, more than half of which involved allegations of physical abuse (900 of these related specifically to nursing homes). A report carried out by Fergus O’Dowd TD showed that, in addition to the allegations, 298 pieces of unsolicited information were received by HIQA in 2017 but only one was passed to Gardaí and none to the Office of the Ombudsman. At the time, HIQA cited legislative shortcomings around the protection of adults who may be vulnerable and said it was developing agreements with both the Gardaí and the Ombudsman.

More recently (September 2020), according to media reports, the Ombudsman shared his plans to write to the Government seeking to fast-track an extension of his powers to investigate clinical decisions in nursing homes and other healthcare settings. Peter Tyndall said he wants new regulations, promised in the programme for government, introduced to extend the remit of the Office of the Ombudsman that would allow it to investigate complaints about the care and deaths of residents in nursing homes and hospitals. Mr Tyndall said the “whole health complaints systems” had to be revamped as a matter of urgency. Apparently, he is equipped to investigate administrative issues arising in nursing homes, such as complaints about fees, but he “quite often” had to turn away complaints relating to clinical decisions. The COVID-19 situation has served to exacerbate the situation. His remarks followed criticism by the widow of a Co Meath nursing home resident, who died in June 2020, two weeks after being admitted to hospital with infected wounds infested with maggots. His widow said that she has felt like “a parcel being passed” around by various State bodies in response to her call for an inquiry into the death of her husband.

Meanwhile, a HIQA booklet published in 2018 and referred to above, starts by exhorting, “We want to hear from you. How to provide feedback or make a complaint about residential services for older persons.” However, on further review, it invites feedback on publicly-funded residential services only. There appears to be no process to solicit feedback on those in private residential care. In the case of publicly funded services, the Confidential Recipient can receive allegations about abuse, neglect or bad practice concerning adults with disabilities or older persons, who receive services funded by the HSE or their Providers. People who live in private nursing homes are citizens too and contributed to society. They and their relatives are taxpayers, contributing to the care of their loved ones and relieving pressure on limited public services. Why are they not entitled to the same level of oversight? In our view, the idea that nursing homes did not appear to be seen as part of the wider healthcare system contributed in no small part to the COVID-19 debacle.

We call on HIQA and the Minister for Older People to clarify what process will be established in the future with regard to complaints and concerns. When will the Ombudman’s powers be extended? When will the new statutory safeguarding function exist? Will they reside with the Department of Health, the HSE, Tusla or HIQA? Will service users and their relatives be consulted and involved? What statutory provisions will be made for advocacy services that are independent of HIQA and the nursing home provider? Will nursing home providers be obligated to facilitate the resident and their families in the use of advocacy services?

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