Parallel report to the fourth State-report of the Federal Republic of Germany

Social human rights in Germany
Violation of human rights in old people’s nursing homes

Presented by the

Forum for the improvement of the situation of old people in Germany in need of nursing

Connection : Christiane Luest

Berengariastr. 5,   82131 Gauting,   Deutschland, Tel.:   49-89  –  893 11 054

The information presented in this report concentrates on one of Germany’s most vulnerable areas regarding economic, social and cultural rights: The rights of old people in nursing homes.

In their report to the committee, the German government took a positive interest in the new legal situation regarding Article 9 (The right of social security) within the framework of nursing insurance, and are showing positive developments.

The forum for the improvement of the situation of old people in Germany in need of nursing recognises, that the nursing insurance has a positive effect in quite a few points: The dependency of social help of old people in need of nursing was strongly reduced. The nursing infrastructure was improved by increasing the number of establishments, especially outpatient and semi-inpatient departments. And for the first time, contributions to the pension and accident insurance for nursing relatives and voluntary nursing people, a social safeguard for elderly women could also be guaranteed.

At the same time we are concerned about the continuing inhumane and undignified treatment in a large number of German nursing homes. These people, living in completely dependant conditions, are rarely capable of suing for their rights. The newly introduced nursing insurance has brought the situation in the nursing homes to a head. Even though the numbers of people in Germany requiring nursing is rising, the personnel qualified staff and approved services in nursing homes are continually being reduced to save money at the cost of the old people. Due to the strictly prescribed times of the nursing insurance and the lack of qualified specialists, nursing has been essentially reduced to insufficient treatment of bed-ridden patients.

The forum is appealing to the German government to:

• authorise the calculated minimum tariff of 70% for qualified specialists and a nursing-table of 1:1,5 to be promised nation wide for all nursing homes, to enable treatment worthy of a human being.

• supply more money, especially higher wages in the nursing branch.

• Investment in homes and an increase of control authority personnel with a more frequent availability.

• To expand the nursing insurance service catalogue (e.g. to provide care for demented and disorientated people, to integrate allowance and participation to a civilised life) and to assert nation-wide the support of stipulated services, prophylactics, rehabilitation etc.  –   if necessary against the wishes of the governing bodies.

• At all costs – to ensure the rights of all residents in all homes, concerning protection against the governing bodies. (E.g.notice protection, free advisory service and lawyers, possibility of reduced rents for home places, contract penalties, compensation for damages and personal injuries etc.)

The forum would like to appeal to the committee of economic, social and cultural rights and voice it’s concern regarding the conditions of people in nursing homes, and to relay our recommendations to the German government as to how they should deal with this situation.

Forum zur Verbesserung der Situation pflegebeduerftiger alter Menschen in Deutschland,

(Forum for the improvement of the situation of old people in need of nursing in Germany)

Gauting, Juni 2001

Christiane Luest * Dipl.-Sozialpaedagogin (FH) * Fachbereich Altenhilfe (Specialised area: aid to old people)

Contens

1.
Introduction
2.
Violation of the rights to food (Art. 11)
3.
Violation of the rights of bodily and mental health  (Art. 12)
4.
Violation of the rights of participation in civilised life  (Art. 15)
5.
Reasons for the deplorable state of affairs and the desperate situation in German old people’s nursing homes
*
5.1) Chronic lack of personnel and reduction of service
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5.2.) Old people’s nursing homes as unlegislated areas
6.
Measures to guarantee the right of residents of old people`s homes
7.
Appendix

1. Introduction

There are 9,400 old people’s homes in Germany (10). According to official government reports 10% of these are problem cases (11). In addition the unpublished figure is so high, that so-called isolated cases are spread over a large area (12).

Of the 12 million inhabitants over 65 in the FRG (Federal Republic of Germany) only about 5% live in old people’s homes. About 375,000 live in nursing homes and 286,000 in old people’s homes (21). The age of entrants into nursing homes is 87 (20). Within the next 25 years the number of people requiring nursing will increase a further 43% (21). In Munich alone the number of needy over 85 year olds has increased in the last 15 years from 15,154 in 1980 to 24,830 in 1996. Parallel to this, the number suffering from senile dementia and disorientation has risen rapidly (36). The proportion of the costly critical and seriously critical nursing cases in old people’s homes has increased from the end of the 80’s from 50% to 84% (5,40).

During 4000 quality checks carried out by the medical services of the health insurance up to the end of 1999, substantial deficiencies in impatient nursing care was recorded:

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Bedridden old people showing signs of dehydration and malnutrition (6). Up to 85% of inhabitants suffer from malnutrition (7).
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ca. 36% suffer from dehydration (8)
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Every third person suffers from harmful effects due to inadequate care. Only 4,9% were considered to be appropriate (9).

To grow old with dignity is no longer possible in German nursing homes.

This deplorable state of affairs has been common knowledge for more than 20 years (16). Meanwhile the situation is rapidly getting worse. The introduction of the care-insurance, amongst other things, has contributed greatly to the increasing seriousness. (See p 7/reasons).

The conditions in nursing homes are regularly brought to the public eye in newspaper reports, television broadcasts, exhibitions, books, special reports etc. However, this publicity does not lead to an improvement of the situation of those affected (17). Nursing neediness in Germany is ignored and repulsed. The main argument brought up in discussions with politicians, charity organisations and churches is the so-called „nursing, worthy of a human being cannot be financed“. (2,13,18)

At the same time home operators repudiate their responsibilities. Criticism from residents (provided that, due to their nursing needs, they are in a position to do so), employees and relatives are met with threats of termination of employment or the notice of the homeplace, intimidation, character assassination, suits for libel, withdrawal of care and food and orders restraining a person from entering the premises, etc. (1,6,13,14,15,28). This leads to the fact that it is impossible to sue for legal attested rights.

2.Violation of rights to food (Art. 11)

The supply of food and drink in German nursing homes is no longer guaranteed. We are not talking about individual cases here. 25% of all patients who, before their deaths, are transferred from an old people’s nursing home to hospital, suffer from acute after-effects of inadequate care (dehydrated, starved and covered in bed sores) (2,21).

Heart failure is often given as the cause of death for people who have died in nursing homes (22). However, different causes of death have been successfully revealed repeatedly, as following examples that were documented in German newspapers, show:

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3 deaths within a few weeks occurred in a nursing home due to „inadequate care“(23).
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Starved to death after 6 weeks residence (21).
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No more food or medication given to patients by order of the home management – death within 2 days (24).
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Consciously restrict drink supplies, danger of bed-wetting (this means work) – died of thirst (24).
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11 deaths due to nursing error in Hamburg (25).

The reality of the „normal everyday life in care“ provokes malnutrition: Last meal (evening meal) at 4.30pm. After this the next meal to be served is breakfast (5). The night shift (from 7pm) is normally not in a position to serve a snack (fruit, yoghurt or drinks), because they are responsible for up to 100 residents. This night shift frequently doesn’t even consist of a qualified night-nurse, but of a conscientious objector (carrying out his community service), or a temporary worker (13,29).

In addition to this following occurrences belong meanwhile to normal everyday life in care:

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► Food is only served – and taken away again after 10 minutes. It is of no interest whether anything has actually been eaten. Weight control is not carried out (14,28). Time does not allow patients to be spoon-fed (32). It often happens that relatives are asked to spoon-feed on a regular basis, as this cannot be managed by the establishment. Patients without relatives experience a life endangering disadvantage her (14,32).
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► Beverages are mostly available in the rooms, but out of the patients reach (22,32).
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► The residents voluntarily refuse drinks, through fear of wetting the bed and having to lie in their wet for hours, or to get into trouble with the personnel for causing so much work again (34)

3. Violation of rights of bodily and mental health (Art. 12)

11,2% of all patients that die in nursing homes have bedsores. Under-nourishment represents one of the important reasons: Connections between protein deficiency, lack of energy and bedsores have been scientifically established. Up to 50% of all nursing home residents suffer from this nourishment deficiency and ca. 23% of these have bedsores (26,27).

800,000 home residents in Germany are subject to ca. 400.000 measures restricting their freedom on a daily basis (8,35,38,39). Very few of these extreme measures are – as dictated by law- judicially authorised. In addition to this, there is the „nursing brutality“, medication abuse, and withdrawal of food as punishment, beating patients to death and psychological manipulation such as humiliation, threats and verbal abuse (35).

Even the most basic nursing treatment is no longer guaranteed.

Following examples have been named:

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-Nappies and urinal drips instead of trips to the toilet (5,11,13,16,29,30)
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-Gastric drips and infusion to avoid spoon-feeding (11,13,14,16,28,29,30,31,32)
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-Sedatives replace care
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-Fixation instead of exercise
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-Force feeding
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-Residents are washed by the night shift from 1am in order to lessen the day shifts workload (3).
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-No time for defecation – laxatives by timetable
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-No bathing or shaving for weeks (14)
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-Nappy changes only on pressure from relatives (14)
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-Still in bed at 2pm, as there was no time for the morning wash and breakfast (14)
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-No time to wash or turn the patients, which leads to bedsores and admission to hospital (16)
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-Bone breakage’s (ranging from femural to cephalic) not discovered for days (30,12)
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-Residents that fall remain on the floor for hours, because very often rounds are only made every 2 hours (14).

4. Violation of the right to participation in a civilised life (Art. 15)

The right to participation in a civilised life for residents is not guaranteed and is daily violated because of the existing policies.

Bed fixation and medication are used to violate the resident’s rights to participating in life outside of the bed, the room and the ward. To leave ones bed or let alone the ward is usually no longer possible for nursing home residents. Their cultural highlight is when they are placed in front of the TV in the day room with 10 of their sedated or bound neighbours – this is considered a luxury and cannot be found everywhere, because leaving bed equalises work, work that cannot be accomplished.

5.     Reasons for the deplorable state of affairs and the desperate situation in German oldpeople’s nursing homes

5.1. Chronic lack of personnel and reduction of service

Old people’s homes have to be economic and profit making. Therefore the main cost cutting is done with personnel. In addition to this the home operators increase the nursing beds to 10 per room. This procedure is supported by the courts. In most of the court verdicts the safeguard of inhabitants is secondary to the economic interests of the home operators. An example of one verdict is, in a suit against a home filled above capacity, where the beds were increased from 535 to 724. Quote: „The economic concert is to be rated higher than the requirements of the home residents. The home operators are in desperate need of revenue.“ (30)

Today there is a shortage of 140,000 full time nurses in the in-patient field only(37). The reason for this lies in the jobs lack of attractiveness. For example, private homes are not required to pay fixed rates (30). After passing their exams 80% of the nurses leave within five years (13,19,29,36,37). The cause of this is to be found especially in the intolerable working condition (19). At the same time critical employees are fired, put under pressure, penalised and are „sent to Coventry“ by their colleagues. This situation leads to an illness-quota of personnel of over 30% (13).

In order to rectify this personnel shortage, without having to carry the financial consequences, foreigners, who work for less money than their expensive German counterparts, are recruited and employed. In most cases mastery of the German language doesn’t exist and is also not a condition.

What is the distribution key for personnel? Who stipulates it?

The personnel key dictates how many nurses should be available per patient in need of care (1 nurse per 2,8 patients). This is determined through negotiations carried out between health insurance, social security officers and home operators. In the last few years this has led to permanent lowering of the personnel key and at the same time increasing of the number of beds to be attended. In 1993 one nurse was responsible for 12 patients per shift. In 1997 the number had risen to 17 (37).

The personnel key was reduced from 1,8 to 2,8 (36). As well as this, the qualified personnel are being reduced on a regular basis in order to cut costs (36,41). Due to this personnel key reduction the average time devoted to a patient is not even 1 hour per day. However, according to the health insurance, a patient with grade 1 care necessitates basic nursing and 90 minutes individual care, with grade 2, 3 hours and in grade 3 a utopias 5 hours (16). Apart from the incongruously low salary of personnel, the reduction of financial sources lead to a cutting of more and more services. For example, since the year 2000 health insurance no longer pay for 30-50% of the service (42). At the same time training and further education has been cut for staff, which of course has a long lasting, negative effect on the nursing quality. The introduction of nursing insurance has intensified the economic pressure.

Examples for this are:

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-Flat-rate calculation of time spent on care, nursing and eating meals irrespective of illness and personality (29).
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-Each nursing step must be documented in writing – precious working time is lost to bureaucracy
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– Demented and disorientated persons do not receive service and are not even taken into consideration by the nursing insurance (3).
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– The nursing insurance is still reducing staff – fewer and fewer nurses must attend to more and more old people (1).
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-Covering of nursing rates – there is 10-20% less money available for old people’s homes today than there was before nursing insurance was introduced (36).
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-The surplus nursing insurance contributions (DM 10 billion)(43) are put by for a rainy day in order to cover any other government deficits, instead of using them solely for their intended purpose.
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-The same applies to the money saved by the social security through the nursing insurance (more than 10 billion per year) (44), or saving through health insurance by cutting nursing care completely.
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-The primary goal of the German government is „to stabilise the financial situation of the nursing insurance“, to further have enough reserves that can be used for „other purposes“. This is confirmed by the fact that, for years now, they have been trying to reduce the quota of qualified personnel even lower than the existing 50% (minimum demands lie at 70% anyway), because it’s fulfilment would lead to an untenable rise in costs (41).
*
– When grading the patients care requirements irrespective of seriousness of required nursing, grade 1 or 2 are almost always prescribed. Grade 3 is prescribed often only after an objection has been filed against the insurance and counter appraisals have been produced etc etc. This cannot be managed by most patients. Their relatives are ignorant of the fact, or it is asking too much of them.

There is an urgent necessity to guarantee and assert and strengthen the rights of the home residents against the economical domination.

5.2. Old people’s nursing homes as unlegislated areas

In the most cases people in need of care cannot protect themselves against violations of the law (12,14), as most of them seriously ill, disorientated or actually dying when they are admitted to the home. One in two of the residents have their own welfare worker (3). Relatives aren’t to lodge any complaints, as they are frightened of the sanctions that the house place in the home is withdrawn and they are forced to take their relative home with them.

Control checks by government authorities are in the most cases announced and are never carried out at weekends or at night. Because of this the checks are obviously ineffective. There are also not enough controllers and besides, most of them are administrative civil servants and it is asking too much of them to work professionally in this field. Professionals are rarely made available. The reason given for this is the so-called shortage of financial resources.

Old people’s nursing homes are in actual fact unlegislated areas: Legal principles are present (fundamental law and nursing insurance). According to German law only the affected old person, who is directly dependant and actually residing in a home can file a lawsuit. However, this must be done by the affected person personally of course, filing a suit against the house would directly lead to reprisals against them (see page 4 bottom). Additionally proceedings can take anything up to five years, which hardly any of the home inhabitants live to see. On top of this are the legal costs. Lawyers are generally not interested in such cases, as the hours spent working on them are rarely covered by legal aid.

If a dereliction of duty has been committed, sanctions are rarely applied. Closure of old people’s homes is generally not sanctioned, as there are no other possibilities of accommodating the residents. In the case of a serious offence by a house, it’s usually normal to impose conditions with generous terms of grace, before even considering a closure. Relatives are also against closure (see 5.2. paragraph 1) (30).

6. Measures to guarantee the rights of residents of old people’s homes

Following steps must be taken in order to guarantee legal protection:

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-Regular control to ensure compliance with the fundamental law in houses
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-Optimised possibilities to enable old people to file law suits (protection against reprisals from the home, notice protection and special cost-free lawyers provided by the government through advice centres or controlling bodies, etc).
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-Changing home regulations:
o
-For example the right to an immediate reduction of costs should the home fail
o
-Filling its service conditions
o
-Stipulation of penalties by breaches of contract and damages/personal suffering compensation.
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-Personnel should promise to report deplorable conditions in their nursing homes
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-Principal exclusion of restraining orders in homes.
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-Provision of advisory bodies with special, cost-free legal advice concerning social and nursing problems (e.g. claims against the nursing insurance).

The following must be initiated in order to guarantee the quality of nursing:

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-At least 70% should be qualified personnel (29) – this is the calculated minimum quantity to ensure that the prescribed care times are adhered to. Further more, to enable an activating as well as rehabilitating treatment.
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-Nursing keys from 1:1,5 without interference from the federal states and without negotiation, to enable the times, within the framework of care-grading, to be upheld
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-Recruited foreign nurses to receive an intensive German language course
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-Improvement of the nursing insurance:
o
– Integration of patients suffering from dementia and disorientation
o
– Realistic care grading without monetary constraints (grade3)
o
– In depth, individual treatment of patients outside of fixed times

In conclusion it is clear that the Federal Republic of Germany is not fulfilling its duty in upholding their national law and nursing insurance law and also at an international level are keeping to its obligations.

The forum would like to ask the committee to inform the FRG of its pressing concerns and the urgency of working towards the treatment of old people in Germany at least until their death as human beings.

List of literature:

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1.     „Das ist Euthanasie in ihrer modernen Form“     Abendzeitung vom 7. / 8.05.97
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2.     „Pflegenotstand: Kranke hungern und trocknen aus“    Münchner Merkur vom 30.04./1.05.97
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3.     „Alzheimer Gesellschaft kritisiert Altenheime“   Süddeutsche Zeitung (SZ) vom 19.08.97
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4.     „Die Not der Alzheimer-Patienten“   SZ vom 20.07.97
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5.     „Nur noch Sterbeheime“   Nürnberger Nachrichten vom 16.09.94
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6.     „Pflegeskandale oder der normale Wahnsinn…?“    Uwe Brucker im Editorial vom 29.10.00
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7.     „In Pflegeeinrichtungen sind bis zu 85 Prozent unterernährt“   Generalanzeiger vom 20.10.00
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8.     „Mißstände in Pflegeheimen in der Bundesrepublik Deutschland“    Rechtsanwalt Alexander Frey, Sprecher des Arbeitskreises gegen Menschenrechtsverletzungen in einem Brief an die Bundesministerin für Senioren Bergmann vom 22.07.99
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9.     „Pflegeschäden bei jedem Dritten“   Kieler Nachrichten vom 20.01.00
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10. „Markt der ambulanten und stationären Pflege“ – Ergebnis der neuen Altenhilfe-Marktanalyse „AMA 2000“, die das Bonner Marktforschungsinstitut Marmas im Auftrag des Vincentz Verlages vorgenommen hat
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11. „Eine Kur für die schlimmsten Symptome“    SZ vom 3.11.00
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12. „Pflegefällen fehlt Kraft zum Protest“      Münchner Merkur vom 8.10.97 S. 5
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13. „Seelische Grausamkeiten“    BISS   4 / 2000
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14. Betroffenenbericht: Brief von B. Bedrischka-Bös an die Vereinigung Integrationsför- derung (VIF), Herrn Fussek, vom 21.07.97
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15. „Pflege: Nicht nur alte Menschen betroffen“   TZ vom 21.05.97
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16. „Mißstände in Altenheime und die Möglichkeiten, eine menschenwürdige Pflege und befriedigendere Arbeitsbedingungen durchzusetzen“  Presseerklärung von Rechtsanwalt Alexander Frey, Sprecher des Arbeitskreises gegen Menschenrechtsverletzungen.
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17. „Die Alten werden total vergessen“  Kommentar in der Abendzeitung vom 30.12.00
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18. „Es geht nicht um Luxus“  SZ vom 22./23./24.4.00
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19. „Ein Beruf als Pflegefall“ Frankfurter Rundschau vom 22.5.97
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20. „Die Kontrolle wird verschärft, die Ursachen bleiben“   SZ vom 10.10.97
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21. „Gequält mit Fesseln und Katheder“  FOCUS  20 / 97 Seite 48
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22. „Wenn der Lebensabend zur Hölle wird“    SZ vom 30.4./1.5.97
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23. „Altenbetreuer unter Verdacht“   Frankfurter Rundschau vom 18.12.00
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24. „Heimbewohner waren wie ´ausgetrocknet`“    Münchner Merkur vom 11.7.97
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25. „Erstem Heim droht die Schließung“  Kieler Nachrichten vom 7.1.99
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26. „Dekubitus: Schlechte Ernährung begünstigt Geschwür-Entstehung“  CARE vom 15.09.00 auf Seite 5
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27. „Mißstände in Heime in der Bundesrepublik Deutschland – Gesetzentwürfe bringen keine Verbesserung“ Presseerklärung von Rechtsanwalt Alexander Frey, Sprecher des Arbeitskreises gegen Menschenrechtsverletzungen, vom 25.8.00
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28. „Menschlichkeit als Luxusgut“  SZ vom 30.4. / 1.5.97
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29. „Der Mensch ist zur Ware geworden“  Die Welt vom 27.11.00, Bayernteil
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30. „Notruf vom Ort des Schweigens“  SZ vom 6.09.00  Seite Drei
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31. Betroffenenbericht: Brief von D. Bähr-Seiler an die VIF, Herrn Fussek, vom 30.4.97
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32. Betroffenenbericht: Brief von Fr. Meier an VIF, Herrn Fussek, vom 14.11.97
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33. „Notstand im Heim?“   Rheinische Post vom 12.2.98
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34. Betroffenenbericht: Brief von E.-M. Trodtfeld an VIF, Herrn Fussek, vom 15.07.97
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35. „Gewalt in der Pflege angeprangert“ Altenpflege 8/99
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36. „Hunde sind besser gepflegt“  SZ vom 21.1.98
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37. „Pflegenotstand“  FOCUS  10 / 98
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38. „Altenheim-Bewohner häufig Opfer von Gewalt“  Frankfurter Rundschau vom 13.7.99
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39. „Altenheim – jeder zweite Bewohner muß leiden“   Abendzeitung vom 13.7.99
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40. „Pflegeheimen werden zu `Sterbeheimen`“   SZ vom 16.9.94
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41. „Qualität der Pflege in Heimen gefährdet“   SZ vom 16.3.98
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42. „Pflege nach Katalog“    SZ vom 22./23./24.4.00   S.15
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43. „Rote Reiter im Kartex-System“  SZ vom 25./26.4.00
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44. „Hauptsache satt und sauber“  SZ vom 19.12.97
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45. „Alte Menschen als Opfer“    SZ vom 15.3.00