A Dublin nursing home, severely criticised before the High Court for its treatment of elderly patients and general administration, cannot be closed down while it remains on the Register of Nursing Homes, a judge said yesterday.
Ms Justice Finlay Geoghegan told the South Western Area Health Board there was no legislative provision governing nursing homes for their immediate closure in the absence of statutory and fair procedures.
She said the Health (Nursing Homes) Act of 1990 permitted a health board, where it was concerned for the safety of residents, either with the consent of the nursing home owner or following application to the District Court, to put a temporary manager in charge.
She said the health board had sought an interlocutory injunction for the closure of Rostrevor Nursing Home, Orwell Road, Rathgar, Dublin, and an injunction prohibiting its owner, Ms Therese Lipsett, from operating it.
The reliefs had been sought under a statutory scheme established by the Health (Nursing Homes) Act, 1990, which provided for the registration of nursing homes.
The scheme imposed on health boards responsibility for nursing homes within their functional area, to maintain a register and an obligation to conduct inspections under regulations made under the Act.
The health board was the prosecuting authority for summary offences established by the Act and may, in certain circumstances, obtain management orders allowing it to take charge and manage a nursing home for a limited period.
The Act was intended to provide, in the case of nursing homes, for dependent persons and to provide for the registration by health boards of such homes. Here, the Oireachtas had tried to balance the Constitutional rights of such dependent people with the Constitutional and property rights of owners of nursing homes.
The judge had to decide if the board had made out a fair issue to be tried on whether or not the Act conferred on it a right to insist upon the closure of the nursing home or, in default of any agreement to so close, to apply to the High Court for an order to that effect.
The health board had registered Rostrevor Nursing Home on August 18th, 2003, and a certificate of registration had been issued.A series of inspections had occurred and the health board had prepared reports on the home before and after that registration.
"As a result ... the health board has formed the view that the nursing home is being carried on in such a way which is in breach of certain provisions of the Act and regulations and conditions," the judge said. "I wish to make clear I am not dealing with the correctness or otherwise of that contention. The defendant has stated she disputes certain of those matters of fact. Nor does my decision deal with the appropriateness of the health board view."
She said the board wrote a letter to Ms Lipsett on August 20th in which it suggested it might remove the home from the register. Ms Lipsett was made aware she was entitled to respond within 21 days. The court had to determine if the board had made out a fair issue to be tried that it was entitled to obtain an order for the home's closure or an injunction restraining Ms Lipsett from carrying on the home.
Ms Justice Finlay Geoghegan told Mr Gavin Ralston SC, for the nursing home, she had concluded that no such fair issue to be tried had been made out.
She said the board was a creation of statute and its powers regarding nursing homes were statutory, conferred by the Act of 1990 and the regulations made under that Act.
If the board was to have an entitlement to require closure of a nursing home which remained on the register or to obtain an injunction restraining the defendant from continuing to run it, the board must have such a right conferred on it either expressly or by implication by the Act. It was accepted there was no such expressed right.