Nursing Home Enforcement
Purpose of the 2024 Act
The Health (Miscellaneous Provisions) (No.2) Act 2024 provides for amendments to two pieces of health legislation – the Health Act 2007 and the Nursing Homes Support Scheme (NHSS) Act 2009.
The purpose of the Act is to amend the Health Act 2007 to give the Chief Inspector of Social Services new powers and to make amendments to existing provisions in relation to enforcement, the collection, sharing and publication of key data on nursing homes and complaints processes.
The Act introduces new powers for the Chief Inspector to
- issue compliance notices as a complement to other enforcement powers under the Act and
- to enter and inspect a premises which is unregistered if he or she has reasonable grounds to believe that the business of a designated centre is being carried on, in line with the existing provisions in the Act for entry and inspection of registered centres.
The Act also provides for a reduction of timelines for existing enforcement provisions initiated to expedite enforcement actions.
Registration Conditions
There is an express statutory power for the Chief Inspector to remove a condition attached to a designated centre’s registration without the need for an application by the registered provider. The 2024 Act expands the circumstances in which the Chief Inspector must give notice to the registered provider of a proposed decision with respect to the registration of the designated centre to include any proposed decision to remove a condition that is attached to a designated centre’s registration,
The timeframe in which a registered provider may make representations to the Chief Inspector in respect of a proposed decision regarding registration is reduced from 28 days to 14 days.
The 2024 Act expands the circumstances in which the Chief Inspector must give notice to the registered provider of a decision with respect to the registration of the designated centre to include any decision to remove a condition attached to a designated centre’s registration under new section 51A. This is a consequential amendment arising from Section 5.
It reduces the timeframes from 28 days to 14 days to align with the amendments.It reduces the timeframe in which a registered provider may appeal a decision of the Chief Inspector regarding a registration to the District Court from 28 days to 14 days.
Enforcement & Information
The Chief Inspector can require the information the Chief Inspector considers necessary to carry out his or her functions. The obligation on the provider to provide the Chief Inspector with such information when required. A provider shall provide the requested information in the manner and form the Chief Inspector considers necessary.
The 2024 Act allows for a broader suite of enforcement interventions. Where the Chief Inspector is satisfied that a registered provider has contravened a relevant provision of legislation, he or she may issue a compliance notice.
A registered provider who fails to comply with the compliance notice by the date specified in the notice shall be guilty of an offence and liable to prosecution. Registered providers will have the right to make an appeal to the District Court within 14 days.
Enter Premises
If the Chief Inspector has reasonable grounds to believe that the business of a designated centre is being carried out on a premises which is not registered, the Chief Inspector may enter the premises to inspect it.
The District Court may issue a warrant to authorise the Chief Inspector entry to premises where the Chief Inspector suspects the business of a designated centre is being carried out, if required.
The circumstances where the Chief Inspector may be accompanied by a member of the Gardaí are extended to include inspections of premises where the Chief Inspector suspects the business of an unregistered designated centre is being carried on.
A person shall not refuse entry, obstruct or impede an inspection or give false or misleading information to a person conducting an inspection of a premises which the Chief Inspector suspects is operating as an unregistered designated centre.
Offences
It is an offence not to comply with a compliance notice and a registered provider found guilty in this regard will be liable on summary conviction to a Class A fine or imprisonment for a term not exceeding 12 months or both. A registered provider found guilty on indictment is liable to a fine not exceeding €70,000 and/or imprisonment for up to 2 years.
The 2024 Act introduces a number of new offences. It is
- an offence to provide false or misleading information
- an offence to refuse or obstruct entry to a person carrying out an inspection
Registered providers found guilty of an offence under the Act may have the details of any fines or penalties imposed under the Act entered on the register of designated centres maintained by the Chief Inspector.
Details of any fine or penalties incurred by the registered provider under section 78A shall be entered on a non-compliance list maintained by the Chief Inspector. The Chief Inspector may publish details from this list on the HIQA website. Details of any fines or penalties incurred under the Act may be entered on the provider’s register.
Complaints to Providers
The Minister can prescribe in regulations certain requirements to be included in complaints processes for residential centres. Regulations made by the Minister under the Act may require registered providers of designated centres to make adequate arrangements for dealing with complaints and for publicising these arrangements. The Act does not define or prescribe requirements as to what might constitute an “adequate” arrangement.
Collection of Data
In addition, the Act provides a new function for the Chief Inspector to collect key data in relation to nursing homes, share the data with the Minister, HIQA and the HSE, as appropriate, and publish this data at the aggregate level. The Act also introduces new regulation-making powers for the Minister for Health to prescribe the arrangements for the collection, sharing and publication of the data.
The 2024 Act provides for the collection of key data from designated centres for older people, the sharing of this information with the Minister and public bodies, such as HIQA and the HSE, and the publication of this data in aggregate form by the Chief Inspector. Provisions state that any information shared will exclude data that can identify an individual. A registered provider shall not submit false or misleading information to the Chief Inspector.
The Minister for Health has regulation-making powers to prescribe the collection, sharing and publication of data regarding designated centres for older persons. Regulations will determine the type of data to be collected, shared and published and the frequency of the submission and sharing of the information.