Wednesday, 16 February 2005
Dáil Eireann Debate
Tánaiste and Minister for Health and Children (Ms Harney): Today, the Supreme Court has brought clarity and finality to a matter that has been left fester for 29 years, the legal basis for the policy of 11 Governments and as many as 40 health boards that people in long-term care should make a contribution towards their living costs. Today, we have clarity about the law, certainty about payments and confidence about the way we can now proceed.
The Government welcomes the clarity the Supreme Court decision has brought. People in long-term care and their families will also welcome this clarity. They now know what has been obscure for 29 years, whether and on what basis they should contribute towards certain costs. They, the Government and the Oireachtas will have confidence that continuing the policy of contributions towards shelter and maintenance is not only fair but consistent with the Constitution.
We are a society ruled by law. We must be so, and remain so, in every detail of public policy and administration. Today also demonstrates that our institutions of State work. Only when Government, the Oireachtas and the courts address issues clearly, exercise their powers and meet their responsibilities can we achieve the confidence and clarity that citizens of a state ruled by law deserve.
The problems arise when real issues are left unaddressed, basic problems are finessed or fudged and policies are not fully grounded in law. From the moment this issue was brought to my attention by Deputies Kenny and Perry, I sought to find out what was the precise legal position and to put policy on a sound legal footing.
The Government accepted that it was our responsibility to deal with a 29-year legal problem, and we have acted to do so. The Oireachtas played its part, as did the Council of State, the President and the Supreme Court.
Deputies will be in a position now to study the Supreme Court ruling in detail but I would like to summarise key elements of its decision. They are as follows. The provisions of the Health (Amendment) (No. 2) Bill 2004 that provide for prospective charging of inpatients are constitutional. There is no constitutional prohibition on implementing a charge in the future for inpatient services. The Bill was not contrary to Article 15(5) of the Constitution in that it was not within the prohibition of retrospective legislation in that Article. This is because that Article is confined to rendering something unlawful that was at the time of its commission not unlawful. The Bill is unconstitutional in regard to the property rights of citizens. While taking away a property right without compensation can be justified under the Constitution, it can only be justified to avoid an extreme financial crisis or a fundamental disequilibrium in public finances. The Supreme Court did not consider the exposure of the State or the sums involved — in the order of €500 million — to meet that criterion.
The Government has acted responsibly and reasonably since the Attorney General provided legal advice to me on this matter last November. We brought forward the Health (Amendment) (No. 2) Bill to put the charges on a sound legal footing. We knew that whichever way we addressed the issue of retrospective payments, other than by the course of action we took in the Bill, it was likely that many individual legal challenges would be taken. Older people in long-term care and their families would have been put through the stress of months of legal argument.
I do not believe that the Government could have acted faster or better to achieve the clarity we have today. Had we decided to make payments back for one year, claims would have been made for payments for two years or more. Had we decided to make payments back for two years, claims would have been made for three. Even if the Government had decided to make repayments within the timeframe of the Statute of Limitations, that would in all likelihood have been tested also. The way the Bill has now been tested has been the fastest, most cost effective and least burdensome on families and people in long-term care.
That is why the Government welcomed the President’s decision to refer the Bill to the Supreme Court. As the Taoiseach said in the House this morning, he and I gave advice to this effect to the President at the Council of State meeting, fully respecting her absolute discretion in this matter.
There was simply no easy way to deal with the long-standing legal problem the Attorney General advised us about in November. At that time, there was considerable uncertainty about the extent of legal advice given since the Supreme Court judgment of 1976. That is one of the reasons I appointed Mr. John Travers, the former chief executive officer of Forfás, to carry out a thorough investigation into the way this issue was handled over the years in the Department of Health.
Had we waited to legislate until we knew everything, we, and especially people in long-term care, would not have been in any better position than we are now. We would now, on 16 February 2005, still be many months away from legal clarity on the matter. Litigation or challenges would have been inevitable whenever we acted. This source of funding available to our health services would also have been in continuing doubt. The situation today would have remained very unsatisfactory.
No Member in the House last December suggested an easy way forward. Few seemed to remember that the policy of charging for shelter and maintenance was supported and implemented by 11 Governments and many health boards, of which many Deputies were members. No political party, to my knowledge, ever took a stance or sought a mandate since 1976 to remove these charges. If political parties wish to assign political blame, it must surely be on an inclusive basis since 1976.
Ms Harney: I will only make the point that they and the Governments they served implemented the policy. It is only fair for all political parties in the House who participated in those Governments to accept that fact.
Ms Harney: If people would listen, it might be helpful. I wish to make it clear that I am not saying that any or all of these Ministers acted in the knowledge that the charges were not on a sound legal footing. I am confident that Mr. Travers’s forthcoming report will give the definitive position, since he is carrying out a thorough and comprehensive analysis of the files in the Department and is interviewing many people.
At this point, however, I would like to make one comment. In my statement to the House last December, I stated that the charges had been levied in good faith. The Taoiseach made similar statements, both of us on advice and on the basis of the information available to us at that time. It was reported to the House that the Department acted throughout on the basis that the charges were legally defensible.
The Supreme Court decision today does not make a judgment whether the charges were made in good faith or bad faith but in the light of the Supreme Court judgment, and in the light of information that came to light in preparing for the hearings at the court but not available in December, I would not now characterise the levying of these charges in the way I did last December. For example, legal advice was provided in 1978 by then senior counsel Keane and McCann that the basis of charges was not sound.
I intend to await the report of Mr. Travers to reach a definitive assessment on the issue. We can only make judgments on the basis of all the facts, and I would ask Members of the House to do so also. I will, as I have undertaken, make available Mr. Travers’s report to the House as soon as possible after I and the Government have considered it. I am confident that his report will help us address some important reforms in the way we do business in the public service and to learn the lessons from what has been a significant failure of public policy.
We will now study the court’s judgment in detail. We will take on board all the consequences for policy and law arising from today’s judgment. We will make repayments in the order of at least €500 million, as indicated by the court, to people who were charged illegally and to their estates. Together with the Minister for Finance, we will work on a method of repayment that is efficient and non-contentious.
We intend to continue the policy of making charges to cover some of the costs of shelter and maintenance and we will do so through primary legislation. We will also seek to ensure that services for older people are funded in a sustainable manner. We have already begun detailed work addressing the wider issue of how to achieve a more integrated programme of long-term care that is financed into the future. We will continue to orient policy towards care in the community. This is the clear preference, particularly for older people with dependencies who want to live at home if at all possible. Anyone who favours this will recognise that we should make it as easy financially for people to opt for care in the community rather than institutional care. It would be unfair and contrary to people’s wishes to create a dominant incentive for institutional care over care in the community. It would also be unfair to people who supported themselves at considerable cost by living at home.
A responsible policy must balance many people’s different needs, rights and wishes. This is an important day for clarity, certainty and confidence in respect of the legal basis for one aspect of policy on long-term care. I reiterate that the Government welcomes the Supreme Court’s judgment.
Mr. Allen: On a point of order, the Tánaiste has finished her contribution and Members have not yet been given copies of her speech. Is it not possible for her to get her act together and provide copies for the House?
Dr. Twomey: When the legislation in question was originally introduced, the Tánaiste almost blamed elderly people for imposing charges on taxpayers. On this occasion she has, at least, come before the House and declared that this is a case of mea culpa. She has indicated that this matter is a problem for the Government and that the legislation lies in tatters. I am glad the Minister for Enterprise, Trade and Employment, Deputy Martin, is present. If the Tánaiste cannot be held responsible to some degree for this debacle, he and the former Minister of State at the Department of Health and Children, Deputy Callely, should provide the House with an explanation of what happened during the years since the issue of illegal nursing home charges came to light.
I hope later Government speakers will clarify the position. Questions were raised when the legislation was put through the House on 16 December but we have yet to receive a clear and concise answer from any member of the Government as to what was happening during the three years since these issues were first raised. Before Christmas, an attempt was made to try to muddy the waters by involving the 11 Governments that have held office since 1970. However, this issue only reached the public domain and became a problem for the political masters of this country when the 2001 legislation was introduced. Nothing has been done about it in the interim.
The Tánaiste referred to a legal opinion sought in 1978. To the best of my knowledge, that opinion was not placed in the public domain. Neither is the 80-page legal document to which the Minister for Enterprise, Trade and Employment, Deputy Martin, once referred. If we could read this document, we would be able to discern the thinking of the health boards in 2002 when they stopped charging some nursing home patients who queried the charges.
Regardless of what the Tánaiste said earlier about the illegal nursing home charges imposed on a substantial number of patients, there is still a great deal of ambiguity about this matter. This issue, particularly in terms of the moral authority attaching to it, does not date back to 1970. The Supreme Court may have declared that these charges have been illegal since 1970. To some degree, however, we were not aware of them until 2001. That is the point Fine Gael has continually made when raising this issue. Nothing has been done since 2001 when the illegality of these charges first came to light.
When the Health (Amendment) (No. 2) Bill was introduced, it was stated that the retrospective effect of charges would be a major imposition on the patients involved. The Taoiseach, ten days before it was published, stated that the legislation would have no retrospective effect. Why did the Tánaiste’s officials include such a retrospective effect when the Taoiseach had stated that it would not be included? The legislation was published only 24 hours before being rushed through the Dáil. The legal opinion sought by Fine Gael at that stage indicated that this retrospective element would be unlikely to survive a High Court challenge because of the number of people and the costs involved. However, the retrospective element was very much at the core of the legislation. Why was that the case? Did the Tánaiste seek legal advice in respect of it before the legislation was put through the House? We were always of the opinion that it would never survive a challenge.
Will the Tánaiste indicate clearly that she will not invoke the Statute of Limitations in respect of this issue? This point is highlighted in the Supreme Court judgment which states: “Taking into account the right of the State to limit its liability by reliance on the Statute of Limitations, it was said that the figure to be repaid for the past six years could be of the order of €500 million.” Will the Tánaiste confirm that she is definitely not going to invoke the statute?
Dr. Twomey: Before Christmas, the Taoiseach indicated that there would be no retrospective element. Now it is stated that the Statute of Limitations may be invoked. The core point in this debate is whether that statute will be applied and whether everyone involved will be repaid the money they are expecting. The Tánaiste pointed out that if the Statute of Limitations is invoked, anybody wishing to make a claim will be obliged to obtain a High Court judicial review. It is difficult to say whether the patients involved would be able to mount such a challenge. I do not believe that anybody involved would be able to mount an individual challenge to the Statute of Limitations. It is important that the Tánaiste should make clear the position before she or the other Government members leave the House.
The Supreme Court judgment only gives patients the right to go to the High Court as individuals to reclaim these charges that have now been deemed illegal. We need to know how the Tánaiste intends to repay the patients in order that they will not be obliged to take a High Court case. The legal costs of taking such cases would completely dwarf the moneys being reclaimed by the patients. Some of the amounts of money involved would not be large, particularly if they refer to 1974 or 1975. However, legal costs will have to be paid in current terms and will, as a result, be quite substantial. The Tánaiste should indicate what mechanism the Department plans to put in place to make repayments. If members of the legal profession get their hands on this, particularly as 275,000 patients or their estates are supposed to be involved, the legal charges imposed will dwarf any of those that applied in respect of hearing impairment claims in the Army or abuse scandals in the churches. The Tánaiste must indicate how this matter will be dealt with.
Those are our main concerns about the legislation and its failings. The Tánaiste knew the Bill would never survive a Supreme Court challenge. We should take this opportunity to investigate what else the Government is doing in respect of care of the elderly. We now know that patients will be charged in future. What can they expect from the Government in respect of their care? Any elderly person or other individual who might potentially need care in the future, whether in public or private accommodation, must know what awaits him or her.
We should reflect on the health strategy which has been in place since 2001. This was going to be the basis of a health policy of which we could all be proud as we headed towards the next general election in 2007. It is worthwhile commenting on a number of aspects of the strategy, particularly as they relate to care of the elderly. There was supposed to be an integrated report aimed at meeting the needs of older people and an action plan in respect of dementia was supposed to be implemented. I visited County Clare yesterday and I was informed about the serious deficit in the service relating to care of the elderly there. The position is the same in my county and others I have visited such as Cavan and Monaghan. The Government has not made the investment in the care of the elderly that was indicated in the health strategy. There have been many fine words but little has been done.
I raised with the Tánaiste last week the fact that nursing home subvention rates have not increased since 2001. Instead, patients have been forced to beg for extra subventions from health board chief executive officers. They are being left at the mercy of public servants as regards whether they can even stay in private nursing homes. Here we see they were illegally charged in public nursing homes. This is a disgraceful way to look after elderly people.
Another point that I believe was close to the Tánaiste’s heart on which we still await a final report is concerned with Government policy on care of the elderly for the future. This report was supposed to have been published at the end of 2002. The Government said it was receiving submissions from a number of organisations before taking a decision on this question. There has been absolutely zero movement on this within the past two years. This is something else that should now be addressed by the Tánaiste in order that the House can know what is going on.
This whole issue has revolved around the charges made to patients in public nursing homes. Before this issue is finally put to bed, the Tánaiste should examine the situation as regards patients in private nursing homes, especially those denied access to public beds because they were not available. Will there be more and more court cases in the future, starting with the mess that has been allowed to develop as regards this judgment of the Supreme Court? There are far too many problems and difficulties for the elderly population. This legislation has served to highlight just one issue, illegal nursing home charges. We know an enormous cost will be incurred by the taxpayer.
We are extremely disappointed that the Government did not deal adequately with the measure when it arose. It could have spared a great deal of concern for the elderly patients involved and it could have saved the Tánaiste a great deal of trouble because over the next two years she will have to find the money to pay for this. Unfortunately, I believe the same elderly people will have to suffer the consequences of this action as well, because that is where the funding will have to come from to pay back the illegal charges.
There are already sufficient deficits as regards the care of the elderly and no magic ten-point plan or anything else will cure these problems. It is time the Government made a serious attempt to redress what has been done. I hope all our questions will be answered, mine and no doubt those that will be raised by a great many Members tonight, as regards what has gone wrong and why it happened.
Ms McManus: The findings of the Supreme Court that this Bill is unconstitutional is a stinging rebuke of the Minister for Health and Children and her Government for their handling of this entire issue. It exposes a gross incompetence on the part of the Government and a callousness towards people in the care of the State because of infirmity and age. Listening to the Minister for Health and Children, Deputy Harney, make her speech just now, I can only give her full marks for brass neck and zero for humility. I remind her that there was a comprehensive report on this issue in 2001, and in early 2003 the South Eastern Health Board prepared legal advice, running to approximately 80 pages, advising the Government of the illegality of these charges, but these reports were ignored.
This Bill was rushed through the House before Christmas and it attempted to do two things, one of which was to legitimise charges for public nursing home care into the future. The other was to transform illegal charges that the Government recognised had no legal basis, going back over years, to somehow make them legal. The rejection by the Supreme Court of the Tánaiste’s attempt to retrospectively validate an unlawful charging regime is particularly welcome. The decision points to the danger of rushing important legislation such as this Bill through the Dáil without giving Members, or indeed the public, the time required to fully assess its implications. No adequate time was given to consider the Bill prior to its passage through the House and each stage of the debate was guillotined, as the Government tried desperately to cover its tracks and retrospectively legalise illegal actions, whereby the State enriched itself for years by stealing from elderly and vulnerable people.
All this was avoidable. Had the Minister for Health and Children only listened less to her legal advisers and more to Members of this House, she would have saved herself much embarrassment. However, her pigheadedness has damaged her reputation as well as undermining public confidence in her ability to manage the health service. She cannot say she was not warned. On Second Stage, I proposed an amendment on behalf of the Labour Party which stated:
Had we been listened to, the Government would have saved itself some grief. As it turned out, we were somewhat conservative. The Supreme Court went further in its judgment, which states that it is “an impermissible interference with the property rights of the residents that money that was in law properly theirs, and that they had a right to recover, was now to be placed beyond their reach”. The Government’s role in safeguarding the public finances, in the Supreme Court’s view, could not justify it encroaching on the constitutional rights of these citizens. The principle of social justice could not be used to facilitate the Minister for Health and Children in stealing money from the elderly. Public policy considerations relating to finances were found not to be equivalent to the constitutional term of social justice.
We now have a situation where the Government has approximately €500 million which does not belong to it, but rather to individuals who are entitled to have their money back. Is it conceivable that the State will force these people to go into court to prove their case? I certainly hope not. It would be foolhardy if the Government was to compound its error by insisting on court proceedings. It would not protect the interests of the taxpayers because it would mean the taxpayer would have to pay, not alone for the elderly, but also for legal teams which would add to the cost significantly. I mentioned €500 million because this was the figure used in the court case.
A fair and speedy system must be put in place to transfer this money back to its rightful owners. I was disappointed at not hearing the Government’s intention in this regard, because it is important to know what mechanisms are to be established to give back the money that was purloined. There are already significant data on the persons who are or will be in receipt of the miserly €2,000 with which the Minister tried to fob off the elderly. The normal records and accounts in public facilities will presumably inform the Minister and her Department who is owed what. This type of fieldwork is not impossible. It is as nothing compared to trying to trace who was in a residential institution in the 1930s and 1940s and how much compensation they might be owed. Some estimate of the overall figure has been published and I would like to hear whether it is the correct amount or if it should be more. It is important to know whether the court route will be forced on these people and whether the Statute of Limitations applies. I hope we get an answer to that. It seems an obvious question and I am surprised it was not in the Minister’s speech.
The Supreme Court found that proposing charges for nursing homes in the future is permissible. Again, we need to know what the Government intends to do as regards that part of the judgment — this was referred to in the Minister’s speech. No one is currently being charged for public nursing home care, or at least no one should be. However, the Government may not impose such charges without legislation and the House needs to have some details in that regard, because the track record is not good.
The Government made serious mistakes before as regards health legislation. When medical card cover was extended in an opportunistic political manner to the over-70 year olds, the House was told by the previous Minister for Health and Children that this initiative did not require legislation, but of course it did. That whole exercise grew to be enormously costly. When the current Minister announced the new “yellow pack” medical cards, she said legislation would not be required. As we now know she was wrong about that too, but we still do not know when that legislation will be finalised. The record is not encouraging.
There is a great deal of confusion as regards what health boards can and must provide free of charge. This confusion has been exposed yet again with the recent establishment of the Health Service Executive, which has created a certain amount of upheaval within health board structures. Regrettably, even though changes have been made at administrative level, there is still no clarification as regards what services the reorganised HSE structure is to deliver and the conditions of eligibility those seeking such services must fulfil. We have a delivery model but no clarity on what that model is to deliver. I raised this point on Committee Stage of the Bill under which the HSE was set up. Regrettably, the Minister did not accept an amendment at that time.
It is important that we refer back to one report published in 2001 by the then Ombudsman, Mr. Kevin Murphy. It was referred to recently by the current Ombudsman, Ms Emily O’Reilly, who issued a statement when the nursing home controversy arose. She stated:
The point made by the former Ombudsman was that people had a right and an eligibility but this is being challenged by the Department. The position it has taken is that one may be eligible but that does not mean one will get anything. That is why the HSE legislation avoided the issue of services to which people are entitled. This is an issue that will not go away. The current Ombudsman will not let it go. She went on to state:
As she points out, the current legislation does not deal with this issue. There is an issue of eligibility but that does not mean in any way that the State cannot charge or bring forward legislation to charge. However, it does raise the issue about a person’s right to access care when he or she needs it.
I reiterate the point I have been making. This is a problem of the Government’s own making. It was warned that this legislation was flawed, that it was in contravention of the Constitution, yet it drove it through the House at speed. It has now been struck down by the Supreme Court. The President took advice. We should all be very grateful that she referred the matter to the Supreme Court and did not leave it to elderly people to defend their rights through the courts system. We have to look after elderly people who had money taken from them by the State. They are entitled to get it back. As their representatives, we are entitled to hear how the Minister for Health and Children is proposing to process that payback in a way that is fair, accessible and speedy. Many of the people concerned are very old, frail and vulnerable.
This whole experience shows that we have a Minister for Health and Children who does not appear to be able to manage the problems in the health service. The whole issue is not of her making but nobody would ever suggest this. Her predecessor who is sitting next to her certainly received a lot of advice on what to do but clearly did not act on it.
Ms McManus: The record will still show that the Minister forced a Bill through this House, despite the advice that she had received in this Chamber that it would be deemed unconstitutional. She disregarded——
Ms McManus: The problem is that the Minister chose to listen to so-called experts instead of looking at the basic philosophical point which was that it was wrong to try retrospectively to turn an illegal Act into a legal one and that people would be hurt by it.
Ms McManus: The Minister had her chance. The rights of these citizens would have been damaged. That is what the Supreme Court stated today. It stated their property rights were not being protected as the Constitution required.
Ms McManus: However, the record shows that there was a clear choice put to the Minister to withdraw the Bill to ensure no damage would be done. Rather than having all this argy-bargy, the important point to remember is that thousands of elderly people had money taken from them to enrich the State. This was done illegally. The people concerned are entitled to redress. We do not know what the Minister proposes to do to give them justice. How will they be repaid in a way that is fair, respectful of what happened to them and which lives up to the responsibilities laid on the Government by the Supreme Court? The Supreme Court has vindicated the rights of elderly, frail, vulnerable and powerless people against the State that illegally wielded its authority against them.
Caoimhghín Ó Caoláin: I welcome today’s ruling by the Supreme Court without reservation. The bottom line is that elderly people have been illegally charged. They must now be reimbursed with the minimum of delay and bureaucracy. The Government needs to start work right away on a scheme that will see the people concerned reimbursed and without recourse to expensive legal proceedings.
The Health (Amendment) (No. 2) Bill was rushed through this House on 16 December 2004, the last sitting day before the Christmas recess. Despite the warnings of Members in the Dáil and in the Seanad, the Government pushed on. It was cautioned against bringing forward such a retrospective Bill. In concluding my brief remarks on Second Stage I appealed to the Minister to return to the principle that the State had a duty of care and a responsibility to ensure the rights of the most vulnerable in our society were protected. I said the legislation did not measure up to this responsibility and should be withdrawn and redrafted or fundamentally changed. The Minister ploughed on regardless, with the result we see today.
This ruling has exposed the Government’s arrogance in its approach to legislation. In ramming it through both Houses without sufficient debate or scrutiny, the Minister’s actions have resulted in a legal debacle for the Government. However, it is a welcome judgment for those thousands of elderly people on whom charges were wrongfully imposed.
Many are naturally concerned at the impact of this judgment on the public finances. While the judgment must be studied closely, it must be stressed that this repayment is not only obligatory on the State, it is also manageable. The Supreme Court judgment puts the sum involved at around €500 million, dating back to 1999, but that is not the whole picture. What of the money due for the years preceding 1999? Does the Government intend to invoke the Statute of Limitations? The Minister should tell us, spell the matter out and share with the House this evening the full story of the Government’s intent.
The tragedy in all of this is that the State’s shabby treatment of older people under successive Governments has caused a great deal of distress. The Minister’s actions have caused enormous confusion and worry, especially among elderly people in residential care and their families. The matter must be resolved as speedily as possible and proper, adequate information made public to ensure the confusion is ended. Repayment of moneys owed should proceed with minimum bureaucracy and without thousands of people having to go through the courts. The issue has raised many questions about the way the State supports or fails to support elderly people in long-term residential care. For example, how does the Minister justify the wide variation in subventions among various regions? The question has never been satisfactorily answered, let alone addressed.
What of property rights? I will share with the Minister for Health and Children and her immediate predecessor, both of whom are present, an example from my constituency. I dealt recently with the case of an elderly constituent who had devoted her life to rearing her family and looking after their modest home. In her twilight years she was widowed while her children had either emigrated or lived in other parts of Ireland. She suffered ill health and underwent a long hospital stay. She faced the prospect of being unable to return to the home in which she had been self-dependent for many years and required long-term residential care. The State deemed that she did not qualify for a place in a State-run home or subvention as she owned her small, terraced house which was valued at approximately €150,000. Her children had to sell the family home and dispose of their mother’s remaining possessions to pay for her long-term private residential care. It was for that family as if their mother had died. The case is characteristic of what is a savage system over which to preside. In such cases, there is a bounden duty to address every element of care for the elderly in our society.
Dr. Cowley: The referral of the Bill to the Supreme Court by President McAleese proves the value of an independent Presidency. She acted independently despite the embarrassment of the Government which it was obvious would result. It is certainly obvious in the Chamber this evening. The President has done well by referring the Bill to the court and the result will give all of us a renewed confidence in the legal system.
For a long time, lip service has been paid to older people and the need to support care in the community, but the confounding factor has always been a lack of funds. As has been borne out today, it has been a case of being penny wise and pound foolish. While the Tánaiste speaks fine words, which I know she means, about the value of community care, the road to hell is paved with good intentions. Many others have spoken such words and meant them but older people have suffered. Today’s ruling provides a very good example. There have been many major problems in trying to get money to run health services. The funds provided for home help have always been severely restricted resulting in the severe restriction in hours of service provided. Home help is the most obvious way to support older people within their communities. The fund to provide aids and appliances has always been seriously depleted also. Services in this area have always constituted a poor relation.
The Department of Health and Children contends the problem was that health boards reallocated moneys intended to provide services for older people, but wherever the fault lies people have suffered. It must come back to the Department and central government which has failed to provide sufficient resources for services for older people. I hope the Government learns from this experience although it has yet to learn from the last one. Political opportunism meant an arm and a leg was spent providing medical cards to the over-70s. While the Government says in its defence of the Bill under discussion that addressing the issue would divert money from services for those who are currently ill, I do not see why it should blame older people. The fault does not belong to older people, but to the Government which has failed to look after the people it should. There is money for everything else, including electronic voting and all sorts of queer shenanigans, but not for the people experiencing real need.
We have seen too much convenience legislation introduced to save the skins of the Government parties and rushed through the Dáil in the absence of any element of consensus. It is time certainty was reintroduced in the system and the Government practised what it preached. Resources must be provided to support the community alternatives which can return people from institutional care.
Mr. Connolly: It was established today in the Supreme Court that the policy which obtained was illegal. The phrase “to get law, not justice” comes to mind. While there are many families who are willing to pay for care, the graver issue involves the number of people who cannot even get a bed or make a contribution from their pensions. A great deal of money of the order of €800 million to €1 billion is at stake. Where people have owed a health board money in the past, a system of compound interest has been used to determine the charge to be imposed. Given that £1 in 1976 is now worth in excess of €9, the potential level of claims may have been undervalued. If the same system is used to pay money back to people as is used to obtain money from them, the sums involved may be significant. There are many examples of people from whom money was taken who had to leave work because of the marriage bar. When they attempt to purchase years for superannuation, they are charged a phenomenal sum of money. While pensions were pretty low in 1976, at approximately £11 per year, if one imposes compound interest the sums involved will be very expensive to pay back.
I have no doubt that when people spend money, the lawyers will be delighted. Attempts to retrieve the money involved will lead to family wrangles and disputes. A quick solution which is acceptable to the people is therefore necessary. It is also urgent to address the circumstances of people who are still alive and paying for beds. While pension rates have increased incrementally, the value of a 1976 pension has almost been maintained. That implies that there is a difficult time ahead for the families involved and the lawyers will be the winners. Where families fight for a few euro, lawyers will put their arms in and encourage them to go all the way. It is incumbent on the Tánaiste to provide a formula in this context.
The €2,000 provision constituted a drop in the ocean and failed to match to any degree the sums owed. If it were provided as some form of recompense for those families still paying for nursing home care for their loved ones, it would soften the blow to an extent. A formula must be designed and a decision come to as to how the sums owed will be calculated. Will we use the 7% up to 84% rate or the 6% per annum rate used by the Health Service Executive? The service is tight with money and slow to act. I ask the Minister to ensure that some form of special funding is made available.
Mr. Gormley: Today’s Supreme Court judgment makes this a bad day for the Tánaiste and the Government of which she is a member. It is a good day, however, for the elderly people on whom the Tánaiste dumped with the Health (Amendment) Bill 2004. The judgment demonstrates that the Government is arrogant and does not listen. We told the Tánaiste repeatedly in the House that the legislation rode roughshod over the constitutional rights of what I called “the most vulnerable people in Irish society”.
Mr. Gormley: The Supreme Court used the same phrase in its judgment. That is the phrase I used, and it is a phrase also used by the Supreme Court. The most vulnerable people in Irish society are not at the top of the Progressive Democrats’ agenda. There are times when the party does not even believe in society. Instead, like Margaret Thatcher, it believes in individuals. The Tánaiste’s speech is disingenuous because this legislation was not designed to help these people; it was designed to minimise the State’s liability. The Tánaiste knows that. She rushed it through in the same way as her parliamentary colleague, the Minister for Justice, Equality and Law Reform, has rushed legislation through here time and again. I once referred to him as a binge legislator, and the Tánaiste could also be called one. That is not the way this House should do business, and the Tánaiste has come a cropper as a result, rightly so. I referred to this on Committee Stage when we were considering the role of the Health Service Executive. That legislation was also rushed through. I have no doubt the flaws in it will eventually come to light.
The sum of €500 million going back to 1999 is quite small in the overall context of the situation, especially when considered by comparison with the amount of money spent on spin doctors by the Minister for Transport, Deputy Cullen, or the amount spent to store electronic voting machines. Will the Tánaiste invoke the Statute of Limitations? Many of us remember the manner in which victims of Dr. Michael Neary were treated, as well as victims of episiotomy and infected blood products. They have all been put to one side, and the Department of Health and Children has dragged out the situations. It has not given a single thought to the victims. It has always been about minimising liability to the State.
The message is clear today: the honeymoon is over. The Tánaiste has enjoyed a honeymoon. She has enjoyed a very good relationship with the media and many on this side of the House have given her the benefit of the doubt. However, the record is clear——
Mr. Gormley: The Tánaiste deserves it. She has presided over the worst accident and emergency crisis ever, worse than during the tenure of her predecessors, Deputies Martin and Cowen. Approximately 422 people were on trolleys while she was on holidays. If it was a Fianna Fáil Minister, he or she would have been excoriated for doing that. The primary care strategy is in tatters and MRSA is rampant.
Mr. Gormley: The Tánaiste could not retain the chief executive of the Health Service Executive. The health strategy has been forgotten, the Hanly report has been ditched to one side and everything is gone. Where are the 3,000 beds? They will not materialise.
Mr. Gormley: What about medical cards? Where are the cheap doctor-only medical cards? They have not materialised. Where is the legislation? We were told none was required, but now we are told it is. The Tánaiste is presiding over a complete mess. She should get her act together, and she can do so by listening to the Opposition.
Minister of State at the Department of Health and Children (Mr. S. Power): It is very important that charges for long stay care are put on a sound legal basis and this is what we are endeavouring to do. In this regard it is good to note that the Supreme Court has not found the approach to the proposed charges in the Bill repugnant to the Constitution.
This judgment only deals with the charges issue in long stay. It does not deal with the overall issue of eligibility and entitlement which was previously raised by the Ombudsman and which must be the subject of further consideration as a separate issue. The Department is committed to an overall review of eligibility generally with regard to the health services and this can be tied in with the key programme of reform being implemented at present to produce a much more effective and efficient health service in the future underpinned by a sound legal basis. The Supreme Court judgment will help us in that regard.
It has been the policy of successive governments to endeavour to help older people maintain themselves in the community while at the same time providing for residential care which is not prohibitively expensive. The policy of the Government, in terms of development and delivery of services for older people, is to maintain them in dignity and independence at home for as long as possible in accordance with their wishes, as expressed in many research studies; to restore to independence at home those older people who become ill or dependent; and to encourage and support the care of older people in their own community by family, neighbours and voluntary bodies. It is clear, therefore, that the roles of all community care services are vital to the implementation of this policy.
Long stay charges represent approximately 10% of the total cost of medical care and maintenance in the public residential homes involved. However, it still remains important that some contribution is made by patients to the cost of maintenance as this can help free funds towards services and initiatives that will also serve the key objective of helping older people remain at home in their communities wherever possible.
As with investment in health services in recent years, there have been very significant investments in the services for older people generally. Additional revenue funding of €17.228 million was provided in 2005 for these services, including palliative care. Between 1997 and 2004, total additional funding allocated was approximately €287 million. This includes nursing home subvention spending, which increased from £28 million in 1997 to over €115 million in 2004. A further €5.7 million was allocated in 2005, targeted at increased service provision. Over €126 million was provided in 2004 to develop the home help service and train home helps. A further €5 million was allocated in 2005 to relieve service pressures. Since 1997, additional consultant geriatricians have been appointed with appropriate staff support. There are now 57 approved geriatrician posts, nine of which were approved in 2004. The working group on elder abuse presented its report in November 2002. A national implementation group has been established and a further €0.9 million was allocated in 2005 to continue with the implementation of the recommendations in the report.
The Health Service Executive, HSE, areas have been piloting home care grant schemes as an alternative to long-term residential care to assist older people living at home in the community. Older people who are being discharged from the acute hospital system and those living in the community are being targeted under these schemes. People have been discharged from acute hospitals under the Slán Abhaile and Home First pilot projects in the HSE eastern regional area. The Department has been working with the HSE to develop a national home care grant scheme. A draft of the scheme is being finalised by the HSE for presentation to the Department. Funding of €2 million has been allocated to the HSE in 2005 to introduce the scheme.
The national implementation group to monitor the implementation of the recommendations in the elder abuse report has commenced its work. The working group to review nursing home subvention has been established and the group has received a number of written submissions and heard a number of oral submissions on this topic. Funding was provided in 2004 to develop models of good practice in the care of older people and the HSE has undertaken a number of pilot projects. The HSE has introduced personal care packages for older people as an alternative to long-stay residential care. Personal care packages, including home care grants for older people, are specifically designed for the individual concerned and could possibly include the provision of a home help service, home subvention payments, arrangement for attendance at a day centre or day hospital and other services such as twilight nursing. Personal care packages allow older persons the option of remaining living in their own home rather than going into long-stay residential care.
In November 2004, the Tánaiste announced additional funding of €70 million to implement a ten point action plan to improve the delivery of emergency services. The Tánaiste has met senior management of the HSE and the Department of Health and Children is working closely with the HSE to ensure early implementation of these measures. Theses include the transfer of 100 high dependency patients to suitable private nursing home care, negotiating with the private sector to meet the needs of 500 people annually for intermediate care of up to six weeks and an expansion of home care packages to support 500 additional older people at home.
Funding of €16.8 million was made available to the former Eastern Regional Health Authority which will result in over 600 patients being discharged to more appropriate settings. A total of €5 million was also provided for the Southern Health Board under the delayed discharges initiative in 2003-04 to facilitate the discharge of patients from the acute hospital system. Total funding of €21.8 million has been provided under the delayed discharges initiative to assist with the discharge of older people from the acute hospital sector.
This is the context in which the issue of long stay charges must be seen. The principle that people should contribute to the costs of their maintenance when in long stay care has operated over the lifetime of 11 Governments and nothing in the Supreme Court judgment is at variance with that principle. Charges in this regard can only help in the provision of services for older people.
I have listened to the contributions to this debate. When the Tánaiste took office and following the legal advice of the Attorney General, we acted swiftly and took the best legal advice available in introducing the legislation. We must accept the decision of the Supreme Court. We will act immediately to introduce new legislation and to provide compensation to the people from whom money was illegally taken.
Mr. Perry: I am delighted to speak on this important ruling. Democracy has worked well to deal with an illegal charge. With regard to the retrospective legislation, the Supreme Court has stated categorically that the State is liable to make a refund.
Only this week I tabled a parliamentary question to the Tánaiste with regard to the eligibility criteria for the refund of €2,000 for hospital charges for the elderly and the avenues open to families or next of kin to seek payment in respect of persons who were deceased. I was disappointed with the reply I received. It stated that the scheme does not apply in the case of persons who are in long stay care in the institutions in question who died before 9 December 2004. If, however, individuals died on or after this date, payment would be made to the executor or person who had taken out the grant of administration.
Mr. Perry: This is the caring and sharing Government. The reply referred to people who died before 9 December and said that no payment would be made in those cases. If the individuals concerned died on or after this date, a payment would be made. If somebody died on 8 December, the €2,000 would not be paid. A number of people contacted my office about not getting the €2,000 due to the death occurring on 8 December.
The Minister referred to the statute bar. If this is the opinion when dealing with the €2,000 compensation, I am most concerned. I hope the 500 beds allocated to nursing homes to alleviate the crisis in accident and emergency services under the intermediate health plan are being allocated on a geographical basis. Is this the case or are the 500 beds being allocated to Dublin and Cork and not to the areas of most need? This issue has been discussed over the last few weeks so perhaps the Tánaiste would clarify that point.
According to the Supreme Court ruling, the Health (Miscellaneous Provisions) Act 2001, amending section 45 of the Health Act 1970, had the effect of placing beyond doubt any question of the legality of charging for the relevant services. It provided that a person who is not less than 70 years of age and is ordinarily resident in the State shall have full eligibility for the service. This was accepted by the then Attorney General and current Minister for Justice, Equality and Law Reform, Deputy McDowell. On 1 July 2001, there was no possible room for doubt that the health boards were not entitled to impose any charge for inpatient services on persons aged 70 years or over.
While many in this category would not previously have qualified for full eligibility, a significant number obviously did. Thus, from the entry into force of that provision, all persons aged 70 years or more were automatically and by that fact alone deemed to be fully eligible. Therefore, any charge imposed on such person was indisputably imposed in direct contravention of the Act, yet it was confirmed to the court that the practice continued. It is, of course, the admitted purpose of the Bill to render lawful what was thus unlawful.
There was ambiguity about it until 2001 but the 2001 Act conferred an entitlement on everybody over the age of 70 years. It is astonishing that the Attorney General’s advice was so wrong. This was brought to the attention of the then Minister, Deputy Martin. Mr. Travers will show this in his report.
Ms Harney: The Supreme Court held that it was not unconstitutional under Article 15.5, which was the point raised in this House and which the Deputy is raising now. It was held unconstitutional under the property rights provisions, which are different. In other words, it was not the retrospective nature of the Bill that was a problem but taking property without compensation. It is important to make that point.
Mr. Perry: I accept that. The point was made that the introduction of the entitlement to a medical card for people over 70 years took place prior to the last general election. That is when the floodgates opened on this. When it was brought to the Department’s attention, it was concealed. There was a major cover-up. This came into the public domain in October but according to my information, and I hope Mr. Travers will verify it, it was known to the previous Ministers since 2001 that the Department was on shaky ground. They were not entitled to impose these charges but nothing was done about it. That is the issue.
Furthermore, if somebody died before 9 December, the Tánaiste was not prepared to give him or her the €2,000 in compensation. People have come to my office with regard to people who died on 5 December and whose estate is entitled to nothing. This is the caring, sharing Government. If the persons had died after 9 December, their estate would get €2,000. I sincerely hope the Tánaiste will not introduce a statute bar on this and that people will get their entitlements. It would be outrageous to introduce a statute bar. We are delighted with the Supreme Court’s decision but last week the Government was unwilling to give a mere €2,000 for somebody who had died on 8 December whereas the estate of somebody who died on 9 December would get it. I hope that will not continue.
I also hope Mr. Travers will produce a detailed report. This was a cover up. The Government has been in power since 1997. The interpretation here is that it involved all Governments and includes the 1956 Act, the 1970 Act and the 1987 Act. The Ombudsman also brought this into the public domain. This was known by the Government. The Tánaiste might suggest that it was unknown but it was known to the most senior people in the Department. The Accounting Officer in the Department was well aware of it. The problem is that it was concealed.
We welcome the Supreme Court decision. However, if this matter had not been brought into the public domain people would continue to be illegally charged today. It is clearly a case of being caught with the hand in the till and that is the difficulty. It is regrettable that retrospective legislation was debated in the House. It was questioned everywhere but it was rushed through the House. The President would not sign the Bill, which was important. I give her full credit for not doing so. She called in her advisory commission to give its opinion and then she referred it to the Supreme Court.
The facts must be put on the record. Yes, there is ambiguity which dates from 1970 but there is no ambiguity since 2001. The Department knew about it and the Ministers since 1997 were well aware of it but they concealed it.
The Tánaiste must remember that when the scheme began in 2001, it introduced full eligibility for medical care for everybody over the age of 70. The Department assumed there were 35,000 people aged over 70, whereas there were 80,000 such people. Since inaccurate figures were used, the Department assumed it would cost €19 million but it cost €80 million. When the flood-gates opened, the Department realised the charges were going beyond the predicted levels. If full entitlement was provided for those in long-term care, the €80 million estimate could have risen to €200 million.
The blame for this situation rests firmly on the shoulders of the Government that concealed it. There has been a major cover-up by the State which has reimbursed those affected with a miserly €2,000 in a so-called generous gesture without any liability. The Supreme Court has now clearly established the fact that the State is liable. I am putting down a marker that if the Government places a statute bar on this, Fine Gael will oppose it all the way because the charge was illegal.
I am aware of certain cases involving people in nursing homes who did not have enough money to pay for their funeral arrangements, including the erection of a proper headstone. That is how much was taken from some elderly people by the Government. While the liability goes back over successive Administrations, it was brought to the attention of this Government which concealed it for two and a half years, although the facts were known by Ministers at the highest level. They are responsible. I sincerely hope, therefore, they will not introduce a statute bar and state that they will not pay beyond a seven-year limit. Everybody who makes a claim should be paid in full.
Dr. Devins: The Supreme Court’s decision in the matter of Article 26 of the Constitution and the Health (Amendment) (No. 2) Bill 2004 brings clarity to the matter of the provisions of the Bill. Clearly, the decision is a complex one that will have to be examined in detail in order to ensure that there is a clear understanding of the full implications involved which will, in turn, inform an appropriate response. In considering the background to this matter, it is important to note that what is at issue is the legal basis for the imposition of charges for those receiving inpatient services in public long-stay institutions. The principle of imposing charges is not at issue.
As has been noted by previous Governments going back over 30 years, it is fair and reasonable that all those in receipt of publicly provided, residential, long-term care should make some payment towards accommodation and daily living costs, if they can afford to do so, just as they would if they were living in the community. For example, those living in the community in receipt of the non-contributory old age pension are obliged to meet all their living costs — food, heating and other household costs — from the payment, whereas, in the case of such individuals in public nursing homes, all such requirements are provided.
This principle was most recently underlined in the health strategy entitled Quality and Fairness — a Health System for You. It supports the aim to provide as high quality a service as possible, making the most equitable use of resources and thus helping to maximise the availability of these services. It is recognised that quality care is expensive and that the bulk of the cost of providing a high standard of quality care should be borne by the Exchequer. It is estimated that the charges imposed on those in public nursing homes represent approximately 10% of the overall cost of care. It therefore represents a modest contribution towards the total cost of treatment and maintenance.
The services provided to people in long-stay care are a valuable part of the health services. It is essential that these services are protected and maintained. The charges in question are embraced by the concept of what is in effect a co-payment, which is common throughout the health service. This is based on the principle that where individuals are in a position to contribute a modest amount to the cost of their care, it is reasonable that they do so. Other examples include the in-patient overnight hospital levy. In the latter case, the charge is currently at the rate of €55 per night, subject to a maximum of €550 in any 12 consecutive months. Those availing of private or semi-private accommodation in public hospitals are also charged.
In bringing forward the Health (Amendment) (No. 2) Bill 2004, the provisions were informed by the policy that it is reasonable that charges should be made and that they should be on a sound legal basis. The Bill provided, among other matters, for a legal basis for the imposition of charges on persons to whom long-stay, inpatient services are provided, irrespective of their eligibility status. In this general area it is significant that the Supreme Court found today that:
This will allow for the introduction of a new Bill to provide the legal basis for charges for inpatient services in long-stay institutions. It is the position currently that charges are not being imposed. Following receipt of further advice from the Office of the Attorney General on 8 December 2004, the Department of Health and Children instructed the former health boards to cease imposing any financial charges on fully eligible people in receipt of in-patient services in public long-stay care institutions, with effect from 9 December 2004. Additionally, by way of a goodwill gesture, the Government agreed to have ex-gratia payments of up to €2,000 made to those with full eligibility who have paid charges and who were alive on 9 December 2004.
Where persons have been charged anything less than €2,000, they will be refunded the amount they have paid. The Health Service Executive, which has assumed responsibility for the delivery of health and personal social services since 1 January 2005, is making the necessary arrangements with regard to the ex-gratia scheme, and payments to those currently in public long-stay care commenced some weeks ago.
Today’s judgment clarifies the legal position on a situation that has obtained for nearly 30 years. The principle of those in long-term care under the auspices of the State having to pay a proportion of the cost of their care and maintenance, if they can afford to do so, has been maintained by this judgment. I commend the Tánaiste for the speed with which she has moved to bring clarity to what was, in effect, a confused situation.
I would also like to mention my constituency colleague, Deputy Perry, who, in his previous role as Chairman of the Committee of Public Accounts, first highlighted this issue. I welcome the Tánaiste’s comments that she will move to speedily resolve this problem and put it on a sound legal basis as soon as she has all the relevant reports.
Mr. Neville: I welcome the judgment of the Supreme Court, which means that tens of thousands of pensioners have been illegally charged by the Government and have a justifiable claim for compensation. One of the issues that now arises concerns how the procedure will be undertaken. The Supreme Court has decided that the people affected have a right to compensation and that the Government has a duty to pay them. The matter should not be delayed by procedural matters, including claim forms. The information concerning those who are eligible is in the domain of the Health Service Executive. The names are available and those people should be compensated. In his reply to the debate, I hope the Minister of State will clarify that those who have a justifiable claim will be compensated and there will not be delays over claim forms or who is eligible to claim. People are entitled to receive their money.
Last year, this issue was highlighted by Fine Gael. Were it not for the efforts of Fine Gael, and Deputy Perry, people would still be subject to illegal charges in nursing homes. It is clear that legislation introduced by the Government in 2001 created a major legal doubt about the legality of those charges. The Government and especially the previous Minister for Health and Children, were given repeated warnings but ignored them.
The Department was informed by at least one health board in 2002 that the imposition of nursing home charges was legally questionable. The South Eastern Health Board had obtained legal advice on the issue and submitted an 80 page report to the then Minister for Health and Children which did not arouse concern. I wonder why. The charges ceased for patients who queried them in at least one health board area but continued for those who did not. How could this be equitable? Ministers were briefed in December 2003 by senior health board officials on the problem but did nothing. Why not?
The Government has handled this issue badly from the moment it was raised in the House by Deputies Perry and Kenny. The Taoiseach stated in early December 2004 that legislation was being drafted to deal with the problem which would not be retrospective. He stated, “There is no retrospective factor in the legislation, which is never the case. Anyway, we do not have retrospective legislation.” One week later the Tánaiste and Minister for Health and Children published a Bill which attempted to retrospectively apply charges.
Following questions surrounding the legality of the legislation, the President referred the Bill to the Supreme Court. While it is not politically correct to congratulate the President, her independent role in ensuring this issue was addressed should be recognised. The judgment must be studied but it means anybody charged has a right to recover payment and the Government has a duty to repay. Tens of thousands of pensioners should not be put in a position where they will have to go to the courts to vindicate their rights. The Minister must clarify how she intends to repay the moneys owed.
The charges imposed on those with medical cards and who were resident in private nursing homes are also an issue. The Minister should clarify this issue which has been raised since the Supreme Court decision was announced earlier. The people concerned may also be entitled to refunds.
I refer to enhanced nursing home subvention. The maximum subvention in the north western Health Service Executive area is €38.09; in the eastern region it is €680; in the mid-western region, it is €50; in the north eastern area, it is €413; and in the southern area, it is €360. There is no logic to the differences between regions. The lack of equity in enhanced nursing home subvention is unfair. The Health Service Executive and the Minister must examine this issue to ensure equitable and realistic payments are made.
Mr. Ring: This is another fine mess the Government has got us into but the sad thing about it is the taxpayer will have to clean up the mess. The Tánaiste and Minister for Health and Children, the former Minister for Health and Children, Deputy Martin, and the Minister for Transport, Deputy Cullen — the three greatest disasters that have ever hit this country — should resign. They are robbing the taxpayer because money will have to paid back as a result of this decision. The Minister for Transport, Deputy Cullen, will also cost the taxpayer because of the way he dealt with e-voting.
I congratulate the President and the Council of State on referring the legislation to the Supreme Court. The people know the Government is a disaster. Eight Supreme Court judges have said it is a disaster because it bullied the legislation through the Houses during Christmas week. Fianna Fáil and Progressive Democrats backbenchers voted with the Government, even when they knew there was a doubt about the Bill. Who advised the Government and what advice was given? How much were the advisers paid by the taxpayer?
I raised this issue on many occasions with the Ombudsman whom I congratulated at various meetings of the Oireachtas Joint Committee on Health and Children because it was pointed out that every person in the State who had a medical card was entitled to a State bed. What will happen? The next court challenge will involve the relatives of medical card holders who had to provide the money to place them in nursing homes because the State did not have a bed for them. They will also have to be compensated.
The Minister outlined how much she would repay. When people had offshore accounts, the State charged them four times more than they should have paid. The Minister will repay €2,000 to those affected, regardless of what they are owed. We cannot have two laws in this land. If the three Ministers I mentioned were in office in Britain, they would be out the door this evening. The Prime Minister would not ask them as they would go themselves. They would put their heads down because they would know they had done wrong and would resign but in this country one would nearly have to shoot them to get rid of them. It does not matter because the Government is arrogant.
Will the Travers report be published before the by-elections? When will it be placed before the House? The Government has handled this issue badly in recent weeks. The Minister for the Environment, Heritage and Local Government is in my constituency on a sitting day. The Taoiseach and his Ministers are more interested in public relations and spinning themselves around the country than in attending the House to examine legislation.
The Minister for Health and Children and her predecessor should have done what they were told by legal advisers instead of robbing people but it was concealed. When the offshore accounts were concealed, people had to pay a price. The Government must pay a price. The Tánaiste and Minister for Health and Children and her predecessor, Deputy Martin, should resign immediately because they have made a mess of this. They were told they had made a mess of it. The Supreme Court told them earlier they had done so. It is time for them to go. The Travis report should outline all the facts and the legal advice given to the Department.
Please do not bring the old people of this country down to the Four Courts because legal people have got enough money from the Government and we do not want to see any of these cases settled in the courts. An injustice has been done. The State robbed the elderly and the poor. The Government should pay back what it owes immediately. Let us not have the people going before the courts.
The Minister of State, Deputy Seán Power, is new to the Department. He should do the right thing for the people. What is happening is terrible and the people are outraged. The Government parties took a belting at the polls in the recent local elections. They better hold on for the next three years because the people are angry and waiting for them. The opinions polls did not show this before the local elections but the same will happen when the general election is held. The Government Members are like the kings and queens of England. They think they will never be put out of power. They are so long in power they have become stale, arrogant and aggressive and it is time to get rid of them.
I recall when I entered the House that the Tánaiste and Minister for Health and Children used to lecture Fine Gael when we were in government. She was nearly crying every morning on the Order of Business. She was telling us how it should be done and the way it should be done. She has had an opportunity, not for two months or two years, but for more than seven years, even though she has only been in the Department of Health and Children for a short time. However, she is part of a Government which has made a mess of this issue. It is time the people responsible moved out.
Mr. Moloney: I am glad to have the opportunity to contribute to the debate. The issue has been of concern not only to Members but also the public. As many hospitals and nursing homes in my constituency provide beds for the elderly, I am naturally concerned about the use of subventions.
I again wish to refer to the Supreme Court decision because the findings have not been clearly and properly dealt with. It is important to reflect on one particular point. The provisions of the Health (Amendment) (No. 2) Bill 2004 that provide for prospective charging of inpatients are constitutional. There is no constitutional prohibition on implementing a charge in the future for inpatient services. We must be very honest with the public. Contending there is a likelihood that people can attend as inpatients in hospitals free of charge is nonsense. There is no point in pretending or wishing that was the case. Clearly, that is not the issue. We must welcome the fact that the Government, through the Tánaiste, recognised that the Bill would be tested in the Supreme Court and welcomed that process which has brought clarity to an issue of concern for years.
Another point lost in the spin is that it has been made out that it was the Government which created the problem. We must be honest on this issue and with the people about whom the Opposition is, allegedly, so concerned. I resent the accusation that we have been stealing from the elderly. The reality is that previous Ministers, in all Administrations, did not recognise the gap.
Mr. Moloney: I am aware of that and will come to that matter shortly. The people who now take upon themselves the responsibility of being the only saviours of the elderly should have held this position all along and recognised what resulted from the Supreme Court judgment on nursing home subventions in 1976. There have been 11 Ministers and 40 different health boards since.
Mr. Moloney: That is four years ago. I did not dare butt in a few minutes ago when Deputy Ring was expressing his concerns. I was going to suggest that it was the by-election that was driving this new-found care. The Deputy mentioned the by-election and hoped the Travers report would be out before it was held.
The Government has acted responsibly since the Attorney General provided legal advice last November. Therefore, I do not see the issues as the source of embarrassment. I welcome that there is now clarity and have no difficulty in congratulating the President. Referral to the President was never an issue. When the Bill was referred to her, it was referred on the supposition that the issue would be cleared up once and for all. We are now in a position to move on.
I have visited hospitals for the elderly in my constituency. The Tánaiste visited one of them last Friday when I saw her genuine concern for the elderly. I have heard it said this evening that the Progressive Democrats have no interest in individuals. I spent three hours with the Tánaiste in the hospital. I have often watched dignitaries and Ministers visit hospitals. I saw the Tánaiste take time out to visit people in moving from ward to ward. She did not have bags of votes behind her but met elderly people on their own. That can certainly not be considered a window-dressing exercise.
The Tánaiste recognises there is an issue. Let us have it cleared up. It is not a matter of providing care for the elderly free of charge, as if the Government was against it and everybody else in favour. We must recognise that hospitals for the elderly are providing a vital and necessary service. In that regard, there is an issue of payment. We are not dissatisfied but very satisfied with the Supreme Court judgment and recognise that we must now move on to regularise the position. We must also remember that the issue did not first arise in 2001. It should have been dealt with back in 1976. Many Administrations had the opportunity to deal with it.
I heard somebody refer to the Tánaiste as being pig-headed. The comment was also made that the Department of Health and Children was going nowhere fast. I attended a meeting last week at which people were quite satisfied with the level of health spending, although we can never be fully satisfied. However, we recognise the favourable OECD report, increased capital expenditure and improved care of the elderly which I have seen in the midlands. The elderly are being recognised through increased funding as can be seen on the ground in the funding of care centres for the elderly and those suffering from Alzheimer’s disease. It is not good enough to say not enough money is going to the health service. I recognise that many areas are supported.
Mr. Moloney: I know there are problems. I have been a member of a health board for years. I was a member back in the 1980s and early 1990s when there was not only no subvention but very few places available for the elderly. I have seen the number of placements increase steadily over the years. In my county where there are three hospitals for the elderly, facilities second to none have been provided and capital expenditure has increased year on year. That is what I see happening on the ground.
There was a day when care for the elderly simply meant a bed and meals in a hospital. There are now day care centres and backup services such as chiropody, hairdressing and leisure facilities. Nobody should tell me I am not aware of what is happening; I am. I am also delighted there is somebody in charge of the Department of Health and Children who is aware of the issues. Subvention has been increased. The Deputy may not be aware that it was increased just four years ago, in 2001.
I am pleased with all the areas being funded under the health programme. This issue has been made a little more thorny because we are heading into a by-election. We cannot be accused of robbing the elderly when the facts suggest otherwise. Many of our hospitals have been modernised. I often wonder how the Opposition can close its eyes to this. The level of demand for health services has changed. Many working couples have sought care for their elderly relatives. As lifestyles have changed, people are not at home to provide care as much as they used to be. This does not mean the budget for health has not increased.
I welcome the investment of €11 billion in the health service this year. The capital investment programme is worth €585 million. The success of the economic strategy means we are able to increase resources in the health service. Suggesting otherwise makes one think the health budget has been reduced but the opposite is the case. The latest comparable OECD data which relate to 2002 show that the level of public health expenditure in Ireland as a percentage of GDP increased from 4.8% in 1997 to 5.5% in 2002, an increase of 14.6%. In comparison, the average percentage increase for the rest of the OECD was 8.6%.
Mr. Sherlock: How is it that the leaders and members of the Government parties are not ashamed with what we have heard from the Supreme Court about the way vulnerable and elderly people have been treated? Yesterday evening in north Cork a public community hospital told a family to take home a 90-year old man whose wife was ill at home. No other family member resides in his house, yet his family were told to take him home because there was no bed for him in a public hospital. When they asked if he could be cared for in a private hospital, they were told the maximum subvention they could get was €190. Let us think about how far that would go. Elderly people are being badly treated. This has been the case for years.
Today’s rejection by the Supreme Court of the Tánaiste’s attempt to retrospectively validate an unlawful charging regime is especially welcome. The plight of public patients in private nursing homes is an issue I have highlighted on numerous occasions in this House since I was first elected in the 1980s. I am, therefore, particularly happy that the Supreme Court has made this ruling today.
The decision also points to the dangers of rushing legislation through the Dáil without giving Members time to fully assess the implications. All Stages of the Bill were guillotined, despite the protests of the Labour Party.
The meagre offer from the Tánaiste of a payment of up to €2,000 to compensate for a gross breach of constitutional rights was an insult to elderly and vulnerable citizens who deserved a great deal better from the Government. The Attorney General’s ruling vindicates the view I stated often in this House during the years, that older people with medical cards were entitled to free nursing home care under the terms of the 1970 Health Act.
Due to the shortage of beds in public nursing homes many elderly people were referred to private nursing homes. Families were advised to accept this option on the basis that a subvention of €190 was available. I was told today that no moneys were available for an enhanced subvention in the southern area. I am aware of a number of cases where families were forced to sell their homes in order to pay for private nursing home care for loved ones in need of long-stay care, even though they met the eligibility criteria for public care.
This issue could and should have been dealt with in October 2001 when the Government was made aware of it, or in early 2003 when, as was pointed out by other speakers, the South Eastern Health Board provided an 80 page legal opinion, of which the Tánaiste is well aware. There is growing evidence that the illegality of the charges was well known long before that date. The pattern appears to have been that where elderly residents were compliant, the money was taken from them but if they resisted, if was not. When nursing home residents complained to the Ombudsman, their money was inevitably returned to them.
I am delighted with the Supreme Court ruling. Today’s decision is a stinging rebuke from the highest court in the land to the approach of the Tánaiste to this entire issue. She must now outline the steps she will take to address the serious injustice done to nursing home residents.
I have never heard a speech as passionless as that of the Minister of State, Deputy Seán Power. He clearly did not believe what he said. He just rattled off a departmental script. At this stage, instead of hanging their heads in shame and admitting they were wrong, Government speakers have come in to spin the usual lies. The level of investment in the health service has been trotted out while reference has been made to how many nursing home places there are for the elderly without once dealing with the kernel of the problem, that there are not enough places for the number of elderly in need of full-time care and attention. That is the difficulty.
As Deputy Sherlock stated, today’s Supreme Court decision — thank God for it — only deals with a small portion of those who have been forced to die as paupers as a result of the State’s inaction. In one case, a geriatrician employed by a health board who was a prominent adviser to the previous Minister for Health and Children advised that a female patient was in need of full-time care and attention but as no space was available, she had to go to a private nursing home for a few years at a cost of between €500 and €700 per week. Her house was sold, as a result of which her family were impoverished, yet the State insists that the only people for whom it has responsibility retrospectively in regard to money, according to the Supreme Court, are those cared for in State nursing homes.
The Government has a responsibility to those who needed full-time care and attention, to whom the State refused to supply public places and who, accordingly, had to go to private nursing homes when the burden was financially greater. In spite of this, we have to listen to the old spin — how much the Government is investing in the health service and how many nursing home places were provided. The Government should take a look at Cork city and county where there are very few public places available but a booming private sector nursing home industry, of which 99% are doing an excellent job which the State should be doing. We should look at this aspect of the problem.
Deputy Sherlock, the Ombudsman and a plethora of others had told the Government that what it was doing was wrong. It is similar to institutional abuse with children; everyone appeared to know it in hindsight but nobody did anything about it. The next big investigation will be into how we treated the elderly.
This is just another one of the land mines the former Minister, Deputy Martin, left behind. If I were the Minister, I would tread very carefully because he has left an entire Department full of them. He did nothing but publish reports. He did absolutely nothing else. This is the consequence of one of them. He knew it better than anyone else.
Ms O’Donnell: I welcome the opportunity to say a few words in the time available. There has been a degree of unwarranted criticism of the Tánaiste and the Government’s handling of this issue. We should be grateful that the Tánaiste, in characteristic form, took upon herself the responsibility of seeking clarity on the issue. When the matter was brought to her attention, she immediately sought clarity and brought forward reforming legislation in the House. Questions had quite rightly been asked by the Opposition. As I understand it, she was made aware of the matter when she took office, as was her predecessor. Information was available in the Department on the legality or otherwise of the deductions. The Tánaiste decided to confront the matter head-on and bring forward reforming legislation, about which she was very open in the House. She set up an inquiry in her Department as to how the matter had continued for so long and why it had not been dealt with at departmental level. She has stated the inquiry headed by Mr. John Travers has yet to report. Quite apart from all of the emotive issues which have been raised today about the care of our elderly in long-term care and the legality or otherwise of the deductions, no political party opposed the making of these charges over the years. Some 11 successive Governments found no fault in these charges, although individual Deputies have raised questions, including Deputy Sherlock, who stated that he has been doing so for 15 years. Given that the Labour Party was in Government with Fine Gael and others between 1992 and 1997, why did the party not take action then?
The kernel of tonight’s debate is to be found in the Tánaiste’s statement. Perhaps no one noticed that the Tánaiste, when she made her statements to the House last December when this legislation was initiated, stated that the charges had been levied in good faith and on the basis of information available to us at that time. The Taoiseach also made similar statements. The Tánaiste is now stating that she could not characterise those statements in the same way. In other words, the Tánaiste is saying that she could not say now that the charges were legally defensible and that the Department of Health and Children acted on the basis that they were. These are serious matters of public accountability which fall to this House to examine in due course, following on Mr.
Members who have been in this House for any length of time will recall that on previous occasions tribunals have been established by this House because of a failure to give Ministers correct information to account to this House for questions which were raised.
Ms O’Donnell: This is true in the case of the Department of Agriculture and Food in regard to the establishment of the beef tribunal. It was stated in the beef tribunal report that had questions in the Dáil to the relevant Ministers and Departments been properly replied to, there would have been no cause for the tribunal.
The Tánaiste must be commended for seeking clarity on this issue, for being straightforward in characteristic fashion and for being honest with the House in so far as she was made aware of the truth of the situation. In her speech tonight, she has indicated that she was not aware that legal advice was provided in 1978 by senior counsels Keane and McCann to the effect that the basis of the charges was not sound. In other words, legal opinion had been given the Department of Health and Children over the years but the information was not given to successive Ministers. Therein lies the kernel in terms of public accountability and good governance. There are serious issues of bad administration or maladministration and it is in the public interest that the Travers report should come forward with its recommendations and clarity. I hope the House will in due course be made fully aware of what has happened in respect of this matter.
It now transpires that the court has in its wisdom decided that these charges were not legally justifiable. They will be so in the future if the Government decides to legislate to make such charges, which have never been imposed by any political party, and that will be acceptable to the Supreme Court. The Supreme Court has adjudicated that it is acceptable for the State to seek a contribution, where it is appropriate, from elderly people in long-term care. However, it found that these charges were not defensible and cannot be made lawful retrospectively. At long last we have clarity but serious questions arise for the Government and the House in terms of maladministration in the Department of Health and Children.
Tánaiste and Minister for Health and Children (Ms Harney): The principle of what was involved in this case, namely, the charging for shelter and maintenance in public institutions, was held by the Supreme Court to be constitutional. The issue which is not constitutional is the taking away of someone’s property rights without adequate compensation. When the debate took place before Christmas, I told the House that I believed the charges were levied in good faith. In other words, those who levied the charge felt it was legally defensible. As I said in my earlier statement, I would not now stand over those comments.
This issue goes back to 1976. On the one hand Deputy Twomey states that this goes back to 2001 and, on the other, asks if I intend to use the Statute of Limitations which covers the past six years. In the McInerney case in 1976, the Supreme Court upheld that it was unconstitutional to levy these charges without legislation. The manner in which it was sought to get around that was the use of a circular. Whatever about the good faith of doing so in 1978, we now know, as a result of the discovery during the preparation for this case, that the former Chief Justice, Mr. Ronan Keane, and a counsel called Mr. McCann, gave legal advice to the contrary.
Since then there have been 11 Governments and at least 12 or 13 Ministers for Health and 40 health boards. I took legal advice when the issue was raised by Deputies Kenny and Perry and I acted immediately on that legal advice. However, according to Deputy Ring I am supposed to resign. I am further accused of not listening to the Opposition. However, Deputy McManus, an Opposition Deputy, stated in her letter to the President that this was unconstitutional under Article 15.5, but the Supreme Court ruled that it was constitutional under Article 15.5 but that it was unconstitutional under property rights provisions. Even if the debate in this House had gone on for months——
Ms Harney: I am obliged to take the advice given to me. That advice was given to me not just by the Office of the Attorney General but also by outside counsel. I told the House that this issue would be tested in the Supreme Court. When the President called a meeting of the Council of State, as the Taoiseach stated this morning, it was his and my view that the sooner there was legal clarity, the better. That is a fact. It was better that it was done by an Article 26 reference than to force an individual, an old person or someone in a long-term place, to take legal action.
Ms Harney: We acted as quickly as we could. Nonetheless, I am not satisfied that this practice continued for 28 or 29 years because it shows systemic maladministration. That is why in December I asked John Travers to carry out an inquiry to report to me by 1 March as to why, with so many Administrations and Ministers, we could have acted illegally since 1976. I await his report.
Ms McManus: It is on the record. The Tánaiste gave us the minutes of that meeting and the Minister of State, Deputy Tim O’Malley, was at it. The then Minister for Health and Children, Deputy Martin, was out of the room, but the Minister of State was in attendance. The Tánaiste gave us the record.
Ms Harney: I also stated that legal advice was to be sought as a result of that meeting and I do not know why it was not sought. These are among the reasons I have asked a person to carry out the inquiry because I want to know who knew what and when.
Ms Harney: We are all entitled to know because the taxpayers will be paying back at least €500 million. If we could have had this issue dealt with five years ago, the amount would have been much less because we could have legally raised the charges. For every week we cannot raise these charges, it costs the health service €2.5 million.
We have serious issues in regard to long-term care. Every year, 12,000 more people are reaching the age of 65 and 1,500 more reach the age of 80. The demographics of our population are such that we will have to think strategically about a whole host of issues. How do we support people, particularly in their own homes and communities, and how do we support older people in our society?
Ms Harney: I have to take advice about the best way to do it. I do not know whether the State Claims Agency or the HSE is the appropriate body but I will put in place as quickly as I can a mechanism to ensure we identify the individuals, their personal representatives or families and make these payments. I will do this as conscientiously and as quickly as I can.
I am happy we have had this debate in the House as at one level it shows the institutions work. This matter was raised by the Opposition and I checked it out with the Attorney General. We acted in good faith at the time to bring forward legislation to give legal status to what had been happening illegally for nearly 29 years. The Supreme Court has now brought clarity to it. While we can charge in the future, we cannot take people’s property rights away without a legal basis and consultation.
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