HIQA Chief Inspector has issued proceedings against Western Care

Legal proceedings have been issued against the Western Care Association. It has been confirmed to The Mayo News that the Chief Inspector of the Health Information and Quality Authority (HIQA) has issued the proceedings which allege the Mayo charity carried on the business of unregulated designated centres.

Earlier this year, HIQA issued a report on 35 of the 36 regulated centres operated by Western Care at that time. Those centres are not part of the current proceedings. Instead, the health watchdog has issued legal action in regard to unregulated centres operated by the charity.

In correspondence received by The Mayo News, the Western Care Assoication states it is not guilty of any of the offences alleged and will be fully contesting the proceedings. It continues, that as the matter is before the courts it would not be appropriate to comment further.

Mayo Sinn Fein TD Rose Conway Walsh said the situation is 'very worrying' and better services and supports for the people of Mayo are urgently required.

“It is a sad situation to see HIQA left with no choice but to take legal proceedings against Western Care.

“This is no reflection on the dedicated front-line staff who deliver supports and services to some of the most vulnerable people in our county.

“Current and former staff as well as people who rely on the services of Western Care had earlier this year raised very serious concerns about the unregulated services of Western Care.

“Disability services should be regulated and those providing services must be accountable. HIQA’s disability inspection team is legally responsible for the monitoring, inspection, and registration of designated centres for adults and children with a disability. It works with providers to ensure regulations are met.

“As funders of these services the HSE also have a key responsibility to ensure proper oversight and governance. I hope that the conclusion of these proceedings results in better services and supports for people with disabilities in Mayo,” she stated.

Regulations state that legal proceedings initiated by HIQA must meet a number of criteria. The Chief Inspector will not begin prosecution proceedings unless satisfied that: it is in the public interest; there is sufficient and reliable evidence that an offence has been committed; the evidence meets the standard for a criminal prosecution and there is a realistic prospect of conviction.

Summary proceedings for offences under the Health Act 2007, carry penalties on summary conviction of a fine not exceeding €5,000 or imprisonment for up to one year, or both; or a fine up to €70,000 or imprisonment for up to two years, or both for conviction on indictment.

Non-designated centres

A HIQA guide entitled ‘What is a designated centre?’ sets out the parameters for designated (HIQA regulated) residential centres for adults with disabilities, as set out in the Health Act (2007).

Residential services or residential centres are defined by HIQA as settings which comprise an accommodation element and a care/support element.

These can often refer to group homes. Individualised services are residential services where service users are living in a home they own or rent themselves and key to this distinction is the level of control the service user has over the property.

“One of the key issues for consideration by the Chief Inspector when examining whether a person’s home is in fact their own home is the degree to which the provider (Western Care in this case) is responsible for, and exercises real and substantial control over the residential service.

“Responsibility and control are not primarily about who owns the premises. Rather, the key questions for the provider are service management issues such as who decides which residents will be accommodated in the centre or who decides if the service should be closed for holiday period,” state HIQA in their guide.

They consider the matter further in their guide and list a number of factors which HIQA say their Chief Inspector ‘would consider relevant when examining’ if a living arrangement should fall under the definition of a designated (HIQA regulated) centre.

They include: is support given by the provider at the times determined by the tenant who is receiving the support service? Does the tenant have an unrestricted right of access to all areas of the property, other than their co-tenants’ private space (where applicable)? Has the tenant the freedom to allow or prohibit the landlord or provider and/or staff access to their residence?

In summary, HIQA say that where residents have ‘substantial control’ over their living arrangements, the service ‘may not constitute a designated centre’, ie not require HIQA oversight.

One of the key aspects in all of this is that it is the providers, Western Care in this instance, who determine whether a service should be HIQA regulated or not.

In response to questions from The Mayo News on this issue last year, HIQA stated the following:

“The Health Act 2007 requires providers to identify and register any residential centre that meets the criteria set out in the Act. Not all residential services meet this criteria. It is an offence for providers to operate a centre when it does meet the criteria and in such circumstances, the Chief Inspector has a range of escalation and enforcement powers that can be used in response to the situation,” they stated.

.