The Health Act 2007 (Care and Welfare of Residents in Designated Centres for Older People) Regulations 2013 came into operation on 1 July 2014 with the purpose of establishing an improved system of care.
Its implementation required widespread changes in the provision of care to older persons, meaning that if you are a care provider for the elderly or if you are contemplating investing, there are a number of compliance requirements which need to be taken into account.
We previously set out the key trends in the change of profile of designated centres for older people here.
The 2013 Regulations cover a range of areas to include staffing, nutrition, governance, risk management and safety, to mention but a few, however the most financially burdensome of the 2013 Regulations are those which relate to the physical premises. Regulation 17(1) imposes the general requirement that premises are "appropriate to the number and needs of the residents of that centre and in accordance with the statement of purpose". Regulation 17(2) states that a registered provider of a designated centre for older people must provide premises which conform to the matters set out in Schedule 6.
The 2013 Regulations were amended by the 2016 Regulations, particularly Schedule 6. The 2016 Regulations came into effect in June 2016 and have inserted further requirements into Schedule 6. Some of these requirements came into effect in June 2016 and others have to be met by January 2022.
What is currently required of a care provider under Schedule 6?
Current requirements under Schedule 6 include that:
- The premises must have a lay-out which meets the needs of residents; be of sound construction; and, be clean and suitably decorated;
- There should be provided on the premises emergency call facilities, grabrails in bathroom areas, handrails on stairs and lifts where residents are on more than one level;
- There should be provided on the premises adequate sitting and recreational space other than a resident's private accommodation;
- The area of floor space for a resident of a bedroom in a designated centre must not be reduced from the area of floor space provided for the resident on the day the 2016 Regulations came into operation; and
- The number of residents of a bedroom in a designated centre must not be increased from the number of residents in the bedroom on the day that the 2016 Regulations came into operation.
What will be required under Schedule 6 as of 1 January 2022?
Schedule 6 requires that on and from 1 January 2022:
- A bedroom in a designated centre which was carrying on the business of a designated centre on or before 1 July 2009 or a part of a designated centre where such business was carried on before that date "shall have an area of not less than 7.4 m2 of floor space, which area shall include the space occupied by a bed, a chair and personal storage space, for each resident of that bedroom" and "no bedroom shall have more than 4 residents other than a high-dependency room which shall not have more than 6 residents";
- There should be provided on the premises dining facilities for all residents which can cater to the number of residents concerned but not necessarily for all residents at the same sitting; and
- The registered provider shall ensure that, having regard to the number of residents, there are toilets, including toilets designed to provide access for residents in wheelchairs, which are "easily accessible by, and in close proximity to, but not necessarily en suite with the bedrooms of every 8 residents."
Taking the above into account, an example is that, from 1 January 2022 there is a minimum requirement that each resident has an area of 7.4 m2 of floor space in their bedroom and that there are no more than 4 residents in a normal bedroom, however, if a resident had an area of 8m2 of floor space in their bedroom in June 2016 and there were only 3 residents in that bedroom, the resident's area of floor space cannot be reduced and the number of residents sharing with them cannot be increased. Existing providers need to carefully consider the Schedule when reconfiguring.
What happens if a care provider is non-compliant with the requirements of Schedule 6?
If you are non-compliant with the requirements of Schedule 6, your licence could be affected or you could be prosecuted.
HIQA's chief inspector can inspect a designated centre to assess whether it is in compliance with the Regulations, can attach additional conditions to a designated centre's registration following inspection and can cancel a designated centre's registration on a number of grounds, including where the centre fails to comply with any statutory provisions. Failure to comply with the 2013 and 2016 Regulations could therefore result in conditions being attached to your registration or your registration being cancelled.
It is also an offence to breach the Regulations. A registered provider guilty of such an offence is liable on summary conviction to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months or both, or on conviction on indictment to a fine not exceeding €70,000 or imprisonment for a term not exceeding 2 years or both. A body corporate or a person purporting to act on behalf of a body corporate can also be proceeded against for such an offence where it can be proved that the offence was committed with the consent or approval of, or to have been attributable to any neglect on the part of a director, member of the committee of management or other controlling authority of the body concerned or the manager, secretary or other officer of the body concerned.
Although registered providers of designated centres for older people have until 1 January 2022 to meet some of these requirements, HIQA has indicated that many care providers are unable to comply in respect of premises requirements. In its 'Overview Report on the Regulation of Designated Centres for Older Persons – 2018', HIQA noted that Regulation 17 of the 2013 Regulations had the highest rate of regulatory non-compliance in 2018. Inspections concluded that 43% of providers were non-compliant in terms of premises standards. The report points out that the obstacle to compliance with these standards, in many cases, is the cost.
- Learn more about our Healthcare Group here.
- Read more about the Financial Model linked to Nursing Home closures here.
- Read more about the landscape for investing in nursing home care in Ireland here.
This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.