by Matthew Austin September-26-2024 in Commercial & Business, Regulatory & Administrative Law
Introduction
The Health Act 2007 (“the Act”) is the key piece of primary legislation governing regulatory oversight of nursing homes in Ireland. Certain amendments to the Act were signed into law on 17 July 2024, and most of these changes were formally brought into effect by the Minister for Health (“the Minister”) on 23 September 2024. We summarise some notable changes below.
The provision of information to the Chief Inspector
Nursing home operators will now be required to provide the Chief Inspector of Social Services (“the Chief Inspector”) with any information that the Chief Inspector deems necessary to assist her in carrying out her functions. The Minister is also empowered to set out certain information that nursing home operators will be required to provide to the Chief Inspector. It is not fully clear at present the exact information that will be specified by the Minister in the future. The Act provides that this information may include: the type of accommodation and number of beds offered by the nursing home; information related to the type of services offered to nursing home residents, and; information related to charges imposed on nursing home residents.
New power of Chief Inspector to alter or vary a condition of registration of own volition
Previously, nursing home operators were entitled to apply to the Chief Inspector for the removal of any conditions attaching to the registration of a nursing home. The Chief Inspector may grant this application if she is satisfied that the removal of this condition is (1) appropriate in the circumstances, and (2) will not adversely affect any residents in the nursing home. The Chief Inspector is now entitled to remove any condition of registration - of her own motion and without the need for an application to have been made by the nursing home operator in question – if she is satisfied of the above two requirements.
Changes to certain time periods set out under the Act
The Act sets out the time-periods within which nursing home operators may make representations against certain preliminary decisions of the Chief Inspector, including (a) refusing an application for registration (b) granting an application for registration but subject to conditions (c) granting an application for removal or variation of conditions. and (d) cancelling a registration, varying or removing conditions or attaching additional conditions. This time period was previously 28 days from the date of receipt of the proposed decision, but has now been reduced to 14 days.
A nursing home operator also has the right to appeal a final decision of the Chief Inspector to the District Court under the Act. The previous time period of 28 days within which an appeal had to be lodged has been reduced to 14 days. It should be noted that the old 28-day time periods will continue to apply to any situation in which this time period had not elapsed immediately prior to 23 September 2024.
New investigatory and enforcement powers of the Chief Inspector
The Act has also been amended to give the Chief Inspector the power to enter and inspect the premises of a nursing home that is not registered under the Act. Previously, the Chief Inspector’s power of entry and inspection was limited to registered nursing homes. In order to gain entry, the Chief Inspector must either obtain the consent of the occupier, or a District Court warrant. The investigatory powers of the Chief Inspector here are quite wide-ranging and include the power to: (1) inspect, take copies of, or remove documents and records from the premises (2) inspect relevant computers and other associated apparatus and items (3) inspect any other item and remove it from the premises where necessary for the purposes of the investigation, and (4) interview persons working on the premises, or patients receiving care on the premises (with the consent of the patient).
Another notable amendment to the Act is the power of the Chief Inspector to serve what is known as a Compliance Notices (the “Notice”) on a nursing home operator if satisfied that the nursing home is not being operated in compliance with certain aspects of the Act. This Notice must contain certain information, including specifying the breach in question and a statement requiring the nursing home operator to either do, or refrain from doing, certain things, within a specified date. A nursing home operator against whom a Notice is served has the right to appeal the Notice to the District Court within 14 days of receiving the Notice. Failure to comply with the terms of the Notice is a criminal offence. The Chief Inspector is also required to keep and maintain a “non-compliance” list of nursing home operators on whom either a fine or penalty has been imposed by a Court for non-compliance with a Notice. An entry on this list must be deleted after 3 years of the imposition of the fine or penalty. It is important to note that the sections of the Act dealing with Compliance Notices have not yet been formally commenced by the Minister, and it is not clear at present when this will take place.
The details of any fines or other penalties imposed on a nursing home operator will be recorded on the register of nursing homes maintained by the Chief Inspector.
Patient Safety (Notifiable Incidents and Open Disclosure) Act 2023.
Another noteworthy legislative development for nursing home operators is the Patient Safety (Notifiable Incidents and Open Disclosure) Act 2023, which was enacted on 2 May 2023. There is no indication as yet as to when this Act will be formally commenced. The HSE has advised that there are a number of preparatory steps required before this legislation can be formally commenced. One notable aspect of this legislation is that, once commenced, it will require nursing home providers to submit notifications of specific incidents - using the National Incident Management system (NIMS) - to the Chief Inspector within 7 days of the incident. The incidents requiring reporting are listed in Schedule 1, Part 1 of the Act, available here.
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About the Author
Matthew Austin
Matthew is a partner in the Commercial & Business team and has considerable expertise in a range of practice areas, having acted for Irish and International clients in domestic and multi-jurisdictional issues. Matthew has advised in civil and administrative law disputes and in regulatory and advisory matters including insolvency/restructuring, IP, defamation and media law, competition and consumer protection and data protection.