Health (Amendment) Bill 2005: Second Stage.

Wednesday, 9 March 2005

Seanad Eireann Debate
Vol. 179 No. 15

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Question proposed: “That the Bill be now read a Second Time.”

Minister of State at the Department of Health and Children (Mr. S. Power): Information on Seán Power  Zoom on Seán Power  I am pleased, on behalf of the Tánaiste and Minister for Health and Children, to introduce Second Stage of the Health (Amendment) Bill 2005 to the House. This Bill provides for the amendment of the Health Act 1970 to address two substantive matters, namely, to provide a legal framework for the charging of patients for the maintenance element of inpatient services in publicly funded long-term care residential units and for the introduction of doctor-visit medical cards.

All Governments and all parties in Government have supported and implemented the policy of requiring some contribution towards shelter and maintenance of people with full eligibility in long-term stay institutions. The Supreme Court recently confirmed that it is constitutionally sound for the Oireachtas to legislate for this policy. The issue is finally being put beyond legal doubt after nearly 29 years.

The Bill will also provide for the introduction of a doctor-visit medical card as announced at the publication of the 2005 Estimates. This fulfils a key commitment of the Government to ensure that people on low incomes should have access to GP services and advice. It is most efficient to address both issues in the same Bill.

There is close to all-party consensus that it is reasonable that people in public long-term stay places should make some contribution, where possible, to living costs, or “shelter and maintenance”. The consensus on the issue is clear, given that the policy was implemented by successive Governments and Ministers for Health, albeit on a legally flawed basis, for at least 29 years. It is also clear from public debate and debates in this House over the past three months, that most people accept it is fair to require a reasonable amount to be contributed, particularly considering that older people living at home must meet their living expenses from their pensions.

On foot of advice sought by the Tánaiste from the Office of the Attorney General, the Department of Health and Children issued a letter on 9 December 2004 to the chief executive officers of the health boards and the Eastern Regional Health Authority asking them to immediately stop making such charges, pending the introduction of amending legislation.

Accordingly, a statutory framework that puts the long-standing policy on a sound and statutory legal footing and safeguards the income generated from this source is vital. Let us remember [1220]that this income is spent exclusively on health services and does not revert to the general Exchequer. It is part and parcel of health funding and has been for decades.

The constitutionality of legislating for these charges in the future was fully tested in the Supreme Court and was found by the court to be constitutional. For example, the court stated:

The court also pointed out:

It was useful that the court recognised the importance of this source of funding for health services, in the order now of €2 million to €2.5 million per week.

The clarity provided by the Supreme Court has paved the way for the introduction of the Health (Amendment) Bill 2005, which provides the legal basis for charging for inpatient services in publicly funded long-stay institutions.

Quality care is expensive and 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. This represents a modest, though very important, contribution towards the total cost of treatment and maintenance.

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 consistent with the overall 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 inpatient 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.

What we are concerned with today, therefore, is the implementation of policy for the future. In debating this Bill now, we should focus on its provisions and look forward to the clarity and benefits they will bring rather than debating how the issue of charges has been dealt with over a period of many years. I am conscious of the fact that the Travers report has been published today [1221]and I am sure the House will have ample opportunity to discuss the report in the future. The Government’s policy on the development and delivery of services for older people is to maintain these people in dignity and independence at home for as long as possible in accordance with their wishes, 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. All the studies we have undertaken show that people are far happier in their own homes and want to remain there as long as possible. It is important that we make every effort to ensure that those wishes are granted.

It is obvious, therefore, that the roles of all community care services are vital to the implementation of this policy. The charges which can be raised under the provisions proposed in this Bill will assist in providing funds to help in the implementation of these overall policy objectives in the future. I am very pleased also to propose to the House those sections of the Bill providing for new medical cards to make GP services free for many thousands of people.

On 18 November 2004, in conjunction with the publication of the 2005 Estimates, the Tánaiste announced the Government’s intention to introduce a doctor-only medical card for some 200,000 people. This was the most efficient way to help most people to access primary care and is in line with the commitment contained in the health strategy to ensure that the allocation of medical cards is on the basis of prioritising groups most in need.

This is one of a package of developments we have announced regarding the medical card scheme. The others involve adjustments to the income guidelines in respect of standard medical cards which will enable some 30,000 additional people to obtain a standard medical card in the current year.

These new income guidelines have been in force since January 2005. They reflect a 7.5% increase on the 2004 figures, as announced in November 2004, and also include substantial increases in respect of dependent children. Parents of children with very serious illnesses that persist from year to year can also be assured they will not have to reapply for a medical card each year, thus alleviating the anxiety of wondering if their medical card will continue. The introduction of doctor-visit medical cards is an innovation for social justice and for the effective use of public resources.

For many years, we have all shared a concern that people on low incomes should not be deterred from visiting their GP on cost grounds. In particular, we have agreed that parents should not be deterred on cost grounds from bringing their children to the GP. The Government is now acting to address these concerns.

The doctor-visit card will take away for individuals and families any concern about the cost of [1222]bringing their child to a doctor or, indeed, attending themselves. People will be able to get the advice and reassurance they need from their GPs and, if necessary, be referred on to other health services in either the community or the acute sector, as necessary. It is often the case that when a child is sick, he or she is taken to the doctor when medication might not be necessary. Although medication might be unnecessary, the parent can be reassured by the doctor’s advice and we are now going to make that possible. The traditional medical card will continue to be held by some 85% of medical card holders. With this policy innovation, the same budget allows us to provide four times as many people with free access to their GP as with the traditional medical card.

It is important to remember that not all concerns or medical conditions with which people present to their doctor necessitate the prescription of medication, so in many cases no cost need arise in that regard. For those who require prescription medication, under the drugs payment scheme, no one need pay in excess of €85 in prescription drug costs in a calendar month. I am pleased that the Irish Medical Organisation has welcomed this initiative and I look forward to its co-operation in the introduction of these new medical cards, in the interests of the families and individuals concerned.

The Health Service Executive is preparing for the introduction of the doctor-visit medical cards and is drawing up appropriate operational guidelines to enable applications to be assessed on a standardised basis across the country. Once this legislation has been enacted, the HSE will be in a position to begin promoting the scheme and inviting formal applications, with a view to the first doctor-visit medical cards being issued during April.

The Government wants it to make it easy for people to apply for and use these cards. The Health Service Executive will do all it can to ensure this, including holding constructive discussions with the Irish Medical Organisation on implementation. The policy of the Government is absolutely clear. It is providing the resources to fund these new cards and is introducing the legislation underpinning them. The Government wants people to take up the new cards and visit their doctors as often as needed.

Income guidelines are set for the Health Service Executive for eligibility for medical cards on the basis of the best and latest income and expenditure information available for the population. The Health Service Executive intends initially to set the income threshold for the doctor-visit cards at 25% higher than applies for the standard medical card. The Department will monitor the uptake of the new cards closely to ensure that the many thousands of people whom we wish to have the cards actually apply for and receive them. If it is found that significantly fewer people than expected take up the cards because incomes are growing quickly, the 25% threshold [1223]will be reviewed to ensure that the desired numbers of cards are being issued. An allocation of €60 million has been provided for this initiative and must be spent as intended, as it will give assistance and reassurance to many families.

I should add that there is no question of the Government seeking overtime to reduce the number of standard medical cards in favour of issuing increased numbers of doctor-visit cards. This initiative is intended to complement the existing medical card arrangements, which have been in force for many years.

I now propose to outline the scope and principal provisions of the Bill. For the purpose of clarity I will deal with the long-stay charges first and then doctor-visit medical cards. The Bill is designed to eliminate the anomalies that have arisen under the current legislation for raising charges for long-term care in public-funded long-term care institutions. The Bill and regulations will promote consistency in the application of charges, with greater clarity for those receiving services and the public generally as well as promoting administrative efficiency and transparency throughout the system.

Section 4 provides for an amendment to section 53 of the Health Act 1970, which deals with the legal basis for the imposition of charges. It will replace the existing enabling provision in subsection (2) which provides the Minister with discretionary power to make regulations by a provision which requires the Minister to make regulations in order to impose charges regarding all persons, such as those with full and limited eligibility. Currently, section 53 of the Health Act 1970 provides power to make regulations to impose charges only on those who have limited eligibility.

Subsection (3) specifies the categories of persons exempt from charges imposed under subsection (2). Such categories include all persons under 18 years of age, those detained involuntarily under the Mental Health Acts, those in receipt of acute care in hospitals and those who, in the opinion of the HSE and pursuant to section 2 of the Health (Amendment) Act 1996, have contracted hepatitis C directly or indirectly from the use of human immunoglobulin anti-D or the receipt within the State of another blood product or a blood transfusion. We will introduce subsection (4) to empower the Health Service Executive to reduce or waive a charge on financial hardship grounds.

Subsection (5) clarifies that any current regulations currently in force under section 53 will remain so. The regulations in question are those that impose a hospital levy of €55 per day subject to a maximum payment in any 12 months of €550. These charges will continue to be inapplicable to people with full eligibility, medical cardholders, including all over 70s, and a series of other exemptions such as women in respect of motherhood.

[1224]Subsection (6) provides that the charges shall only apply for inpatient services after a period of 30 days or periods aggregating 30 days within the previous 12 months. It also limits the weekly charge to an amount that does not exceed 80% of the maximum of the weekly rate of old age non-contributory pension. Subsection (7) clarifies that the period of 30 days referred to in subsection (6) begins immediately upon the provision of inpatient services to the person concerned. Subsection (8) provides that the charge shall be in respect of the maintenance aspect of inpatient services.

Section 6 repeals section 140 of the Social Welfare (Consolidation) Act 1993 in order to remove a conflict with the provisions of the Bill which exempt persons detained involuntarily under the Mental Health Acts 1945 to 2001 from charges for the maintenance element of inpatient charges in long-stay residential institutions.

I will now outline the Bill’s provisions on doctor-visit medical cards. Section 1 amends section 45 of the Health Act 1970 in two respects. In both cases the amendment aims to ensure an alignment of the legal principles governing the award of the standard medical card and those contained in the provision to be included in section 58 of the Act in respect of the doctor-visit card. Section 1(a) makes it explicit that the judgment as to whether a person meets the criterion of “undue hardship” specified in section 45(1)(a) of the Health Act 1970 is made by the Health Service Executive. Section 1(b) substitutes the existing section 45(2) of the Health Act 1970 with a wording that makes it clear that decisions on eligibility by the Health Service Executive must not be made by reference to a person’s means alone, but also to what constitutes reasonable expenditure on the person’s behalf. This is in line with existing practice in the Health Service Executive, whereby costs associated with such matters as a person’s employment, reasonable housing provision and the care needs of children or dependants, including nutrition and clothing needs, are taken into account in determining whether a person faces undue hardship in meeting the costs of GP services.

By amending the law in this way we are making it a legal requirement that a person’s reasonable expenditure needs are taken into account in the application of section 45(1)(a) of the Health Act 1970. In both cases these provisions reflect the HSE’s current practices with regard to the assessment of individuals for medical cards. These amendments will not, therefore, affect the processes and practices already in place as regards the award of the standard medical card.

Section 2 amends section 47 of the Health Act 1970 by adding a reference to section 58 along with the existing reference to sections 45 and 46. This is to ensure that the relevant appeals provisions extend to the scheme for doctor-visit medical cards. Section 3 amends section 47(1) of the Health Act 1970 to include the doctor-visit medical card scheme in respect of the Minister’s [1225]power to issue guidelines to assist in decisions on whether or not a person is ordinarily resident in the State. Guidelines were issued to the health boards in this regard in 1992 and remain in force.

Section 5 replaces the existing section 58 of the Health Act 1970, which deals with the making available of general practitioner services without charge, with a new provision. Subsection (1) will require the Health Service Executive to make available general practitioner services without charge to persons with full eligibility and those with limited eligibility for whom, in the opinion of the HSE, it would be an undue burden to arrange these services for themselves and their dependants. This provides the legal basis for the granting of medical cards, the scope of which is confined to patients’ attendance at a general practitioner.

Subsection (2) of the new section 58 specifies the same general requirement with regard to the making of decisions by the Health Service Executive in respect of doctor-visit medical cards as is being inserted regarding decisions on eligibility, that is, they must be made not just by reference to a person’s means, but also to what constitutes reasonable expenditure on the person’s behalf. Subsection (3) maintains the existing requirement that there be a choice of doctor for persons obtaining general practitioner services under section 58 and ensures that this applies to holders of doctor-visit medical cards as well as holders of the standard medical card.

With regard to charges for long-stay care, this legislation will bring clarity to an area which, as is now clear, has not been operating on a sound basis going back almost 30 years. This is a genuine move to provide that imposed charges for long-term care have a sound legal basis. The legislation will also ensure that the income flow from charges imposed to date is secured for the future and that it will continue to support the provision of quality services to those in long-term care. It has been accepted that these charges, as contributions to the cost of care, are fair and reasonable.

With regard to new medical cards, providing general practitioner cover to up to 200,000 additional people from lower income households in the way provided for in this Bill is effective social justice. We are providing graduated benefits according to income. It is much better that State benefits are not all or nothing. We know from our experience of reducing unemployment how important it is, for social justice reasons as much as anything else, to avoid poverty traps. Graduated benefits are a fair and effective way to help people at different levels of income. Government policy is based on a coherent and integrated view of economic and social progress. The new medical card is one innovation within that strategy and will stand the test of time for many thousands of people in the years ahead. I commend the Bill to the House.

[1226]Mr. Browne: Information on Feargal Browne  Zoom on Feargal Browne  I welcome the Minister of State and his officials. I am not sure what the Minister of State’s job was before he became a Deputy. However, I suspect after listening to him that he was involved in the building industry. He would certainly have a future as a plasterer because he has plastered over huge cracks in the Government’s health policy as if they did not exist and as if all the problems have been solved.

The Government has been dragged kicking and screaming back into this Chamber with the Health (Amendment) Bill 2005. When we had the previous Bill before us in December, the Opposition warned the Government there were problems with it. The Government did not listen, but insisted on pursuing the matter and rushing the Bill through both Houses of the Oireachtas. Not alone that, it had the audacity to request the President to sign it into law sooner than the normal five days. The Leader of this House passed the motion for earlier signature. Fortunately, in her wisdom, President McAleese refused to sign the Bill into law early. She called a meeting of the Council of State and referred it to the Supreme Court where it was found wanting, as was the Government. This forced the Government to return to the House with this replacement Bill today. It is deeply regrettable that it took the President and the Supreme Court to make the Government aware of the seriousness of the situation and the fundamental flaws in its original Bill.

The Minister of State’s speech was quite comprehensive, but I must raise some issues. He pretends that the Government welcomed the Supreme Court decision, but in reality it would have preferred that no case took place. It did not expect the court to find against the legislation. The Government had egg on its face in that regard. I must point out that while the investigative work of Fine Gael on this matter has resulted in a bill for the taxpayer, it has, no doubt, saved the taxpayer from a future massive bill. Had it not sought clarity on the issue, the illegal deduction of money would have continued for years until, perhaps, in 30 years time somebody caught the mistake. We can only imagine the size of the bill then. At least we have clarity on the issue now.

Fianna Fáil comes out badly from this issue. The Tánaiste admitted today that a former Fine Gael Minister, John Boland, when he was interim Minister for Health, noticed the difficulty with the charging of patients in nursing homes. He brought the issue to the Cabinet, but that Government fell and a new Government came in under the leadership of Charles Haughey with the Ceann Comhairle, Deputy O’Hanlon, as the Minister for Health. That Government should have introduced legislation to correct the problem but it was not done.

Senator Glynn referred to 1976. However, I believe the two main dates of relevance are 1987, when the Fianna Fáil Government came into power and failed to take action on the issue dis[1227]cussed by the previous Cabinet, and 2001, when the then Minister for Health and Children, Deputy Martin, introduced medical cards for all over-70 year olds, without consultation with the appropriate agencies or consideration of the long-term implications. The blame for this problem lies firmly with Fianna Fáil.

The Minister of State uses a word in his speech that reflects the Government’s uncaring attitude towards the elderly. He speaks about the cost of treatment and “maintenance”. He speaks about old people as if they were objects. In future, the Department should refrain from the use of the word “maintenance” when speaking about human beings. It is a cold and dispassionate word.

The Minister of State referred to the Government’s policy on development and delivery of services for older people. This does not match the reality. I visited his constituency recently where I met a lady involved in the home help service. She gave out to me because as a home help her travel allowance had been cut. I presume this has happened around the country. She also complained that patients were assigned a maximum of ten hours help per week, irrespective of their needs, and that the home help situation has been radically changed by the Government. The Minister of State’s words do not match the reality while the funding provided for the elderly is dismal.

The Minister of State also mentioned the new medical card scheme and that he hopes the new Health Service Executive will ensure a smooth transition. I understand there are major difficulties in this regard. Will the Minister of State clarify what talks have taken place so far in this area? Many general practitioners who have spoken privately to me have indicated that they foresee problems with the general practitioner-only medical card. They expect difficulties down the line. We must try to ensure that we avoid a repeat of the current debacle.

I am disappointed that the much publicised Bill on eligibility, about which the Tánaiste spoke here, does not appear to be any closer. I agreed with the Tánaiste when she stated there was a need for an eligibility Bill that would specify to what people were entitled. However, that Bill is not making any progress and we have a disjointed approach that will land us in more difficulty. It is important that the people know to what they are entitled. If this information had been provided years ago, we would have avoided the mess we are in today.

I understand that the two main differences between this Bill and the previous one are that the retrospective element and the medical card inclusion have been removed from it. The Government is being disingenuous on the medical card scheme. It gave a clear commitment in the most recent general election that it would increase the number of medical card holders. It has failed in that area and there are approximately 200,000 fewer people on medical cards. It [1228]is now introducing this “yellow pack” type medical card for general practitioner services only.

Fine Gael suggested this approach and the use of general practitioner-only medical cards, mainly to benefit parents who could not afford to bring their children to a doctor. If a child comes out in spots, parents need to know whether it is meningitis or a minor rash. The benefit of these cards is such that they will eliminate that worry by allowing such parents the freedom to visit their general practitioner. Unfortunately, the Government has hijacked this scheme.

Some people have said that these cards are only half a medical card. Significant benefits attach to medical cards such as free drugs, or exemption from exam fees for children doing leaving or junior certificate. A person on a general practitioner-only medical card will only get about one eighth of the value of a full medical card. The Minister of State’s words do not reflect the reality. It is shocking that the Government’s mishandling of the issue could account for almost one seventh of the Department of Health and Children’s budget this year which, in turn, accounts for one quarter of State expenditure.

Fine Gael has serious concerns about the legislation. It is amazing that only one amendment was discussed in the Dáil yesterday. One wonders whether the Government learned anything following the debacle prior to Christmas when legislation was rushed through the Oireachtas. Everybody agrees that rushed legislation is bad legislation, yet a short, important Bill has been introduced and sufficient time has not been allocated to debate it properly. Committee, Report and Final Stages will be taken together tomorrow even though the Leader is on record as saying that is a bad way to do business.

The consideration of undue hardship for entitlement to a medical card for those aged under 70 will be decided by the Health Service Executive under section 1(a). That will introduce a new layer of bureaucracy. Section 1(b) refers to the means test for medical cards and Fine Gael is concerned this provision might discriminate against married couples because a spouse’s income will be considered, which contradicts the Health Act 1970. Section 5 deals with traditional medical cards and doctor only cards.

If Deputies Perry and Kenny had not ruthlessly pursued this issue, we would not have reached this point. While the taxpayer might take a hit initially because of Fine Gael’s work, we have saved the taxpayer money in the long term. The worst aspect of this sorry saga is that the patients who could speak up for themselves were not levied charges but those who could not were. The Secretary General of the Department of Health and Children has been scapegoated in the Travers report but there should be greater political fallout because Ministers must be accountable.

Ms Feeney: Information on Geraldine Feeney  Zoom on Geraldine Feeney  The Senator should read the report because then he would know the facts. Nobody was scapegoated.

[1229]Mr. Browne: Information on Feargal Browne  Zoom on Feargal Browne  I read the report. Earlier on Leaders’ Questions in the Dáil, Deputy Rabbitte quoted the comments of Fianna Fáil Front Bench members, most of whom are now Ministers, in 1996 during a debate on a missing letter in the Department of Justice, Equality and Law Reform. Fianna Fáil firmly believed the then Minister was responsible but, according to the Travers report, that is not so in this instance.

The Tánaiste and Minister for Health and Children’s comments when she appeared before the Oireachtas Joint Committee on Health and Children were amusing. She stated the contradictory evidence given by Mr. Kelly, the Secretary General, and her predecessor, Deputy Martin, was of grave concern. However, she would not say who will adjudicate on it.

Ms Feeney: Information on Geraldine Feeney  Zoom on Geraldine Feeney  If the Senator read the report, he would have a better understanding.

Mr. Browne: Information on Feargal Browne  Zoom on Feargal Browne  Somebody is not telling the truth. When the Minister was questioned about whether she trusted Mr. Kelly and whether she had full confidence in her predecessor, she would not give a clear answer. That version of events will not wash with the public.

Ms Feeney: Information on Geraldine Feeney  Zoom on Geraldine Feeney  She gave a clear answer. She said she would not reply to a politician and that she would take it up with the Taoiseach.

Mr. Glynn: Information on Camillus Glynn  Zoom on Camillus Glynn  She did not give the answer the Senator wanted.

An Leas-Chathaoirleach: Information on Paddy Burke  Zoom on Paddy Burke  Senator Browne, without interruption.

Ms Feeney: Information on Geraldine Feeney  Zoom on Geraldine Feeney  He is misleading the House.

Mr. Browne: Information on Feargal Browne  Zoom on Feargal Browne  I am not misleading the House. When Deputy McManus asked the Minister whether she had trust in Mr. Kelly, she would not answer the question. She would not tell the committee who will adjudicate on the recommendations in the report.

Ms Feeney: Information on Geraldine Feeney  Zoom on Geraldine Feeney  It was not the arena in which to answer. Surely the Senator understands that.

An Leas-Chathaoirleach: Information on Paddy Burke  Zoom on Paddy Burke  Senator Browne, without interruption.

Mr. Browne: Information on Feargal Browne  Zoom on Feargal Browne  I look forward to tabling amendments on Committee Stage but I doubt they will be accepted. The Dáil will take a five-week break, unlike this House, which will resume the week after next. The manner in which the Government has rushed the legislation does politics no service, particularly by not allowing amendments to be debated fully on Committee Stage, not to mind Report Stage.

Mr. Glynn: Information on Camillus Glynn  Zoom on Camillus Glynn  I welcome the opportunity to contribute to the debate. The Bill provides for the amendment of the Health Act 1970 to address [1230]two substantive matters, namely, to provide a legal framework for the charging of patients for the maintenance element of in-patient services in publicly funded long-term care residential units and for the introduction of doctor-visit medical cards. The Government has introduced the legislation to establish a sound legal basis for the policy of requiring a contribution towards shelter and maintenance of people with full eligibility in long-stay institutions. All Governments and all parties in Government have supported and implemented this policy. The Supreme Court recently confirmed that it is constitutionally sound for the Oireachtas to legislate for this policy. The issue is finally being put beyond legal doubt after almost 29 years.

I welcome the Supreme Court decision, which found sections of the previous Bill unconstitutional in the context of people’s property rights. I do not agree with the approach taken by a small number of members of the medical profession. I have worked with the elderly for a long number of years. Many old people want to stay in the homes and communities in which they were born and reared. When they need care, the approach of a number of practitioners is that there are pills for all but that is not, nor should it be, the case.

The best community care service should be provided together with social supports, including support by families so that people are not consigned to care institutions and forgotten about. Regrettably, that has been the case too often over the years. The popular misconception is that care in the community involves private nursing homes, geriatric hospitals or welfare homes but I do not accept that because many community care models can cater for the elderly. However, that is a matter for another day.

  4 o’clock

Senator Browne referred to the uncaring attitude of Fianna Fáil but that is amusing when one considers that a few short years ago when Fine Gael was in Government it made Ebenezer Scrooge look like a benevolent Santa Claus with gleaming robes in terms of what it did not do for the elderly. It was a joke. I admire the Senator’s tenacity and hard neck to criticise a government that has been a flagship for the elderly.

Mr. Browne: Information on Feargal Browne  Zoom on Feargal Browne  Why is the Government cutting home help?

Ms O’Meara: Information on Kathleen O'Meara  Zoom on Kathleen O'Meara  The Government took money out of the pockets of the elderly. Is the Senator proud of that?

Ms Feeney: Information on Geraldine Feeney  Zoom on Geraldine Feeney  As did the Opposition parties.

Mr. Glynn: Information on Camillus Glynn  Zoom on Camillus Glynn  A Minister who went through several stages of political metamorphosis and wound up in the Labour Party presided over that debacle.

Senator Browne objected to the word “maintenance” but that has been around since Adam was a boy. He asked us to go back to 1976. As [1231]Senator Feeney stated, this issue is not all about what happened since 2001. A coalition Government was in power from 1973 to 1977. Fianna Fáil took over until 1981. A mixed gathering of parties and Independents took up office in June 1981. That Government fell in February 1982 and Fianna Fáil returned to power, subsequently losing power in November 1982. Senator Browne’s party was in Government from 1982 to 1987; then Fianna Fáil came back until 1992, and from that point until 1997 the Senator’s party was in power. Several Governments have presided over this, and something should have been done about it. To the credit of the incumbent Minister for Health and Children she has attempted to do something about it.

Mr. Browne: Information on Feargal Browne  Zoom on Feargal Browne  Unlike her predecessor, Deputy Martin.

Mr. Glynn: Information on Camillus Glynn  Zoom on Camillus Glynn  The Senator carped about the Independents, but if his colleagues in the Lower House had not indulged in speeches on Second Stage, which amounted to mere filibuster, the Senator would have reached the salient point in the amendment. If the Senator wants to do the same in this House, and waste his own time, that is his prerogative.

A medical card is a very important facility as it has many ancillary benefits. The Minister has been criticised for the medical card approach. Everyone in public life is aware of what it costs to go to a general practitioner. GPs have their own overheads and the cost of their service is expensive. A significant step forward has been taken in terms of the people who want to benefit from medical services. Medical cards are entirely dependent on income. In the case of terminal illness, if medical evidence can prove a consequent financial hardship, a person may be entitled to a medical card but income is still pertinent.

The Minister has given a clear statement on the Bill’s contents. The decision of the Supreme Court on 16 February 2005 in the matter of Article 26 of the Constitution on the Health (Amendment) (No. 2) Bill 2004 has brought clarity and finality. It paved the way for this Bill to provide the legal basis for charging for inpatient services in publicly-funded, long-stay institutions. The community as a whole will benefit from that decision. That was not the first Bill that passed through these Houses and was then deemed unconstitutional and it is unlikely to be the last. We had a full debate on the Supreme Court decision two weeks ago. The Supreme Court found that the provisions of the Bill that provided for prospective charging for inpatients was not repugnant to the Constitution. There is no Constitutional prohibition on the implementing of a charge for public long-stay inpatient services. The Government also accepts that the Supreme Court found the retrospective provisions of that Bill, making lawful the imposition of such payments in the past, to be unconstitutional because it con[1232]cerned the property rights of the citizens. The Tánaiste said she could not stand over this position and I agree with her.

Today, our focus is on the implementation of future policy. If one learns the lessons of history, one is less likely to repeat mistakes. A significant feature of our system of publicly-funded, long-term care is the principle that people should make some contribution to the cost of their care. This reminds me of the Army deafness claims, with which former Minister for Defence, Deputy Michael Smith, dealt. Similarly, this issue must be dealt with. All past Governments have failed to do so to a greater or lesser extent. I welcome this Bill. Some politicians and solicitors have begun chasing ambulances. In my Mullingar constituency I meet people, who never visited their elderly relatives, who ask me how much they will get. On the record of this House I have warned that such people will come out of the woodwork seeking money, although they never took time to visit people in those institutions. I commend the Bill to the House.

Mr. Quinn: Information on Fergal Quinn  Zoom on Fergal Quinn  A good measurement of a democracy is how a State looks after those who are unable to look after themselves. This is most evident in the area of health. I am aware that one hospital in Ireland has asked the public to stay away, due to the third outbreak of the winter vomiting bug in three months. I contrast this with hospitals in Britain; they have league tables for hospitals and this has reduced the instances of MRSA infection dramatically. Compare this to Denmark, which has no instances of infection because hospital beds are washed after each patient. This is a reminder that the way we care for the health of our citizens should be a priority. It is a measure of whether we deserve the term “democracy”. I have no problem with this Bill but am more concerned with its background and the way it is being rushed through the Oireachtas.

I would have thought that the bad experience we had with the Bill’s predecessor would have given the Government pause before again trying to rush through another measure. There may be no doubt about the constitutionality of what is before us now, but a Bill can be fully constitutional and still be bad law. It is all the more likely to be bad law if it is rushed. I accept that delay costs the State approximately €2 million for every week that the Bill is not enacted, but that is not a sufficient excuse for rushing it through.

I have no problem with the idea of charging people for nursing home accommodation. The State hands out old age pensions on the basis that the people receiving them have to provide a roof over their heads. When the State takes over this responsibility it is fair that some of the pension should be clawed back. Very few reasonable people would disagree with this, even those whose money was wrongly taken over the past 30 years.

What was wrong about those charges was not that they were unfair or unreasonable but that [1233]they were illegal. They were imposed in flagrant defiance of the law, which has until now specifically proscribed such charges. It is important to bear in mind who was breaking the law. Many laws are broken every day by citizens who, for the most part, are brought to book. The law is not called into question because some people break it and still less is our democracy threatened by such actions. However, it is very different when the law-breaker is the State.

What defines a democracy is not having elections, or elected representatives, or even having a legislature. Beneath those trappings is something more fundamental, and that is the very thing we have spoken about today, namely, the rule of law. We speak of it because of the statement from P. O’Neill yesterday and we realised how important the rule of law is. In a democracy, people do not rule, the law rules and everybody, without exception, is subject to it. All of us must be bound by the law, whether we are citizens, legislators, administrators, Ministers or members of the Judiciary. Even those of us who have the privilege to make laws, as we have in this House, are bound in what we do by a more fundamental law, namely, our Constitution. We found that out within the past month. It is simply not open for us to say, as if we were Humpty Dumpty, that the law is what we say it shall be. If lawmakers break the fundamental rules that bind us, we are quite rightly held to account.

The law is supreme. I am sorry if I am going on about this but, above all, this supremacy applies to the State itself. If the State can be above and beyond the law, we have no democracy worth talking about. It is nothing but an empty sham. If the law does not protect us from arbitrary actions by the State then we do not live in a democracy, no matter how many elections we might have or political parties to contest them or however free our media may be. A democracy is a state where everybody, including the state, is obliged to conform to the law.

Apart altogether from that consideration, it is surely in the State’s own interest to uphold the law. If it expects its citizens to be law abiding, then it should set a good example. It should uphold the rights of citizens, not trample them under foot. This is why we must take the question of the nursing home charges with the utmost seriousness. We must do so not because they were unfair or unreasonable but because they were illegal and this illegality was perpetrated by the State.

This issue is made all the more serious because this was not a once-off happening. It was not a temporary aberration that was quickly noticed and immediately corrected. This was something that went on for nearly 30 years without anybody putting a stop to it. That length of time makes the whole situation worse purely in terms of size. With each passing year the sum of money involved became significantly greater. The problem of doing something about it quite soon turned into a vista that was appalling in its magni[1234]tude alone. No doubt this will be argued in mitigation.

Surely the most appalling aspect of the entire affair was that this was not something that happened in secret. This was not a sinister plot that was hatched in the depths of the Department of Health and Children, however culpable some of that Department’s administrators may have been along the way. It now becomes clear that the legal basis of these charges was something that was known about right from the beginning.

Everybody is now rushing to cover themselves, to argue that they knew nothing about what was going on. Everybody today is busy scanning the 160 pages of the Travers report, looking for convenient scapegoats. I cannot join in that witchhunt because I am as guilty as everybody else in this matter. I suggest this guilt is shared by every other Member of this House and of the Lower House as well. We can argue about how difficult it is to hold Ministers to account. No doubt Ministers, in turn, will argue that they cannot know everything that their civil servants do. To make such arguments is beside the point. We can all read and, despite the amount of paperwork that descends on all of us all of the time, there are certain things we have a duty to read. They include the reports of the Ombudsman. When we look back over the reports of every Ombudsman who has held office, we see this malpractice held up before our eyes in the clearest possible terms.

There was no secret. It was a public scandal that was repeatedly publicised by each Ombudsman. We cannot claim that it happened out of our view or that these events were beyond any possible oversight that we as legislators could be expected to exercise. Ombudsman after Ombudsman cried out to us but, as legislators and as citizens, we chose not to hear.

In giving the nod to this legislation, let us not think that we are disposing of the matter. Let us not fool ourselves into paying out €2 billion in compensation and think that will undo the damage that has been done. Long after this Bill is enacted, long after the last pensioners, or their descendants, have got their money back, I suspect this question will be around to haunt us. How could we let this threat to democracy happen right before our eyes and not do something about it?

We are doing something about it now and obviously it is better late than never. I am not sure that it is right that we have been dragged into doing it on a second attempt. We have nobody to blame but ourselves and therefore I am not looking for scapegoats. I am accepting responsibility, as I believe each one of us should do.

Ms Feeney: Information on Geraldine Feeney  Zoom on Geraldine Feeney  I welcome Minister of State at the Department of Health and Children, Deputy Brian Lenihan. I am delighted to speak on the Health (Amendment) Bill 2005. It is a short Bill with two purposes. First, to put reasonable charges for long-stay care on a legal basis and, [1235]second, to provide hundreds of thousands of people on low incomes with the opportunity to visit their GPs without worrying about costs. These two issues are most welcome and I am delighted that we, as a Government, have brought forward proposals today in this regard. Now we, as a Parliament, must ensure there is legal clarity regarding important public services and charges.

While many people have ranted and raved about this issue since it first came to light last year, I commend the Tánaiste and Minister for Health and Children, Deputy Harney, the Ministers of State, Deputies Brian Lenihan, Seán Power and Tim O’Malley, and the entire Government for bringing these proposals to us. I will say again that I welcome the decision of the Supreme Court. Senator Browne would see that differently. He thinks we on this side of the House pay lip service and say we welcome it when, in fact, we do not. It has certainly given us clarity on where we are today.

This Bill, as the Tánaiste and Minister for Health and Children, Deputy Harney, stated in the Dáil last week, stems from the Government’s determination to provide legal clarity in the interest of patients, their families, taxpayers and better public administration.

It goes without saying that I support the proposed changes outlined in the Bill. This sets about creating legal clarity regarding public services and charges. Everyone concerned, and that includes patients, their families and members of the public, deserves to know exactly what the legal situation is. That is why I believe this debate should be calm and reasoned. As politicians, we need to reassure the families of current and deceased patients. This will not be done by scaremongering and trying to score cheap political shots. Every Government in office within the past 30 years is involved in this issue. I am proud that at last it is this Government that is taking the bull by the horns and trying to address the matter.

On the repayment of past charges, the Government is working on a scheme of repayments that will be effective, user friendly and as automatic as possible. Only last week, I spoke in the House on the high level sub-committee the Minister has put in place to examine this issue. This cannot be done overnight, but it is everyone’s wish, and the wish of the Government, that it is done as quickly and effectively as possible. The practicalities and legal issues surrounding the repayments are currently being worked out by the sub-committee. I am glad the Supreme Court covered this issue in its decision and stated there is no need for it to go to another court.

I laugh when I hear members of the Opposition talk about money being robbed from the people involved.

Ms O’Meara: Information on Kathleen O'Meara  Zoom on Kathleen O'Meara  I would not be laughing.

[1236]Ms Feeney: Information on Geraldine Feeney  Zoom on Geraldine Feeney  It might suit the Senator to shout at us to go back to 1976. Of course we go back to 1976——

Ms O’Meara: Information on Kathleen O'Meara  Zoom on Kathleen O'Meara  Did the Senator read the report?

Ms Feeney: Information on Geraldine Feeney  Zoom on Geraldine Feeney  The Opposition is as responsible as any other Government for what happened in those days.

Ms O’Meara: Information on Kathleen O'Meara  Zoom on Kathleen O'Meara  Muck-spreading will get the Senator nowhere.

Ms Feeney: Information on Geraldine Feeney  Zoom on Geraldine Feeney  Yes, they were. If they read the Travers report——

Ms O’Meara: Information on Kathleen O'Meara  Zoom on Kathleen O'Meara  I have done so.

An Leas-Chathaoirleach: Information on Paddy Burke  Zoom on Paddy Burke  Senator Feeney, without interruption.

Ms Feeney: Information on Geraldine Feeney  Zoom on Geraldine Feeney  They are only going through the Travers report now. We read it this morning.

Ms O’Meara: Information on Kathleen O'Meara  Zoom on Kathleen O'Meara  Good for them. I have a great deal to quote from it.

Ms Feeney: Information on Geraldine Feeney  Zoom on Geraldine Feeney  They will see that section 4.25 points that out. It brings us all back to 1976 when it states that the practice did not derive from the Health Insurance (Amendment) Act 2001.

Mr. Bannon: Information on James Bannon  Zoom on James Bannon  How many incompetent Ministers have we had over the last seven years who ignored the problem? Had it not been for Deputies Perry and Kenny, this would never have been brought to public knowledge.

An Leas-Chathaoirleach: Information on Paddy Burke  Zoom on Paddy Burke  Senator Feeney, without interruption.

Ms Feeney: Information on Geraldine Feeney  Zoom on Geraldine Feeney  Lord, where would we be without Fine Gael?

Senator O’Meara can turn to section 4.25 of the report now and see where Mr. Travers has asked us to bear in mind that the practice did not occur only after the passing of the Health Insurance (Amendment) Act 2001. It had been in place since 1976. I do not say that, it is said by Mr. Travers, the consultant.

Ms O’Meara: Information on Kathleen O'Meara  Zoom on Kathleen O'Meara  How very convenient.

Ms Feeney: Information on Geraldine Feeney  Zoom on Geraldine Feeney  Senators will either accept his report or not. This is not AIB. There is no one making money and there was nothing to be gained for anyone here. That point must also be borne in mind.

Ms O’Meara: Information on Kathleen O'Meara  Zoom on Kathleen O'Meara  There is a great deal to be lost.

Ms Feeney: Information on Geraldine Feeney  Zoom on Geraldine Feeney  On the overall issue, there is no doubt that it is reasonable for people in long-term care to make a personal contribution. As Senator Quinn has rightly pointed out, no reasonable person would disagree with that.

[1237]Section 4 provides for new medical cards that will make GP services free for thousands of people. I heard members of the Opposition as late as half an hour or 20 minutes ago making snide remarks and sneering at the cards, which they dubbed “yellow-pack cards”. I believe that it is not only wrong on their part but an insult to the thousands of people who will be entitled to one. I also heard Senator Browne saying that it was their initiative and that the Government had hijacked it. I briefly left the Chamber to get someone in my office to look for what was either a Fine Gael or Labour Party Private Members’ motion before Christmas. I think that it might have been a Labour Party one. During the debate, we discussed medical cards.

Mr. Bannon: Information on James Bannon  Zoom on James Bannon  The Senator should get her facts right before she puts matters on the record.

Ms Feeney: Information on Geraldine Feeney  Zoom on Geraldine Feeney  I took part in the debate and I remember asking the Tánaiste whether she could examine a system whereby families might be entitled to medical cards for either GP or pharmacy services only. A week later, I heard the Fine Gael spokesperson, Deputy Twomey, come out with it. I say to Senators Browne and Bannon that the Government did not hijack anything. On the contrary, they hijacked my idea but I have been modest enough not to have said so hitherto. I bring it up merely because they are the fellows——

Mr. Bannon: Information on James Bannon  Zoom on James Bannon  Let us sack the Minister and bring in the young Senator.

An Leas-Chathaoirleach: Information on Paddy Burke  Zoom on Paddy Burke  Senator Feeney, without interruption.

Ms Feeney: Information on Geraldine Feeney  Zoom on Geraldine Feeney  ——banging the drum on the other side of the House. At present, there are families who cannot afford to bring their children to the local GP because of the high cost. People on low incomes, as we have said in this House, must prioritise what money they have. I am happy to see that these proposals will allow them access to their GPs without worrying about costs.

I look forward to the Bill’s next Stage and wish the Government and the Tánaiste well. I welcome the Travers report, which is extremely interesting for those of us who have taken the time to debate and read it today.

Ms O’Meara: Information on Kathleen O'Meara  Zoom on Kathleen O'Meara  I welcome the Minister of State to the House to debate this very important legislation. We are here again with this Bill on the thorny subject of charges levied on long-stay patients in public institutions. Let us not forget that we are talking about elderly people who were charged — illegally, as it now turns out. We now know from the Travers report that it had been known about since 1976. I agree that the report states that the Department had been aware from that year that such charges were illegal.

[1238]I wish to return to the Travers report and make remarks in that regard in the context of a Second Stage speech on this Bill, as it refers to the specific issue. Let us remember that we are talking about elderly people with eligibility and let us consider the situation before the extension of medical cards to the over 70s. Even before then, eligible people were being charged for staying in institutions.

Another Senator referred to people recently crossing the threshold of his office in Mullingar who had not been paying much attention to their elderly relatives and now wondered whether they might get a few bob out of them. The Senator might be interested to hear that I can recall a woman who came to me several years ago in sheer desperation. She was separated and had a teenager doing his leaving certificate, circumstances that, one might have thought, put enough pressure on her. She was on a low income and her elderly father, who was in need of care, was in a public institution. She was not only getting bills from the institution; she was receiving sharp and threatening letters that caused her deep distress and upset.

When she came to see me she was distraught because she was constantly getting letters from the health board demanding payments for the care of her father which, it now transpires, were illegal. There was clearly no question of his being able to pay and she simply could not pay. I do not think that any compensation could make up for the distress caused to that woman and she is only one example of the situation that obtained and the pressure under which families were put by what we now know was an illegal approach emanating from the Department of Health and Children.

The Travers report makes for extraordinarily grim reading. Unlike Senator Feeney, I have not had the privilege of spending hours listening to the Tánaiste and Minister for Health and Children, Deputy Harney, or perusing the report from beginning to end. However, from what I have read of it, I am extremely disturbed at what has been revealed. As Senator Feeney said, and as the Travers report makes clear, the Department of Health and Children was aware of a serious question mark over the legality of such charges.

However, the issue came to a head around 2001, when the South Eastern Health Board brought to the attention of the Department — because it had to — its extensive legal advice regarding patients in public nursing homes. It then became a major issue in the Department. Then we heard one extraordinary series of events set out by the Secretary General of the Department and a completely different series set out by the former Minister for Health and Children, Deputy Martin. It effectively amounted to a conflict of evidence.

I do not think that we will ever know what happened, but the core issue is that the file disappeared following the famous management meet[1239]ing at which, it would appear, a decision was made. It is interesting to note that the then Minister of State, Deputy Callely, undertook to brief the Minister and the Taoiseach on the serious issues arising from the meeting regarding that discussion in the absence of the former Minister. It is, therefore, extraordinary to discover that the former Minister, Deputy Martin, said at the very end of his statement that it had not been drawn to his attention, either formally or informally, at any time.

One wonders how business was being done in the Department of Health and Children and how, within a short time of her arrival in the Department, the Tánaiste, this having been brought to her attention on the floor of the House by Deputies Perry and Kenny, was able to get a grip on it very quickly, seeing that action needed to be taken. How was it that there was such inability to communicate properly with the former Minister for Health and Children, Deputy Martin, on such an important issue? It is impossible to understand the reason the Department did not appear to be able to get it through to the Minister, if that was what was required, that this issue needed to be dealt with. The situation was that the Minister was not informed of it, yet according to the notes made at the famous management meeting held in the Gresham Hotel, the Minister of State, Deputy Callely, undertook to brief the Taoiseach and the Minister. I wonder what happened in regard to that briefing, when it took place or to what it amounted.

Another issue of major concern in the report that must be highlighted is the way the Department of Health and Children handled this issue. From my experience as a public representative I am aware that people who refused to pay the charges — the Ombudsman’s report notes this also — did not have to pay them despite being sent threatening letters and so on. Page 88 of the report states:

What kind of practice are being referred to here? It appears to be one of when challenged, settle and under no circumstances be accountable or responsible. That way of operating in a Department is appalling. Are other Departments using a similar stratagem?

Mr. B. Lenihan: Information on Brian Joseph Lenihan  Zoom on Brian Joseph Lenihan  Or local authorities.

[1240]Ms O’Meara: Information on Kathleen O'Meara  Zoom on Kathleen O'Meara  Or local authorities indeed. Is this practice endemic? Do they just chance their arm and if they are challenged settle but under no circumstances do they stand up and take responsibility because they know they will be found out? Where else is this practice operating?

The Minister of State mentioned local authorities. We must ask if this practice is endemic in Irish public life. Those of us who were members of local authorities and who have encounters with Departments know that certain informal practices have built up over the years and here, in black and white in this report, is one of them which, as Senator Feeney rightly pointed out, is appalling.

Mr. Dardis: Information on John Dardis  Zoom on John Dardis  The Senator does not want to include the South Eastern Health Board in those categories.

Ms O’Meara: Information on Kathleen O'Meara  Zoom on Kathleen O'Meara  I thank Senator Dardis for that remark.

I draw attention to page 89 of the report which deals with findings. I refer again to the inability to communicate effectively with the Minister for Health and Children at the time. The report states:

Clearly, some decision was made to draw up heads of a Bill. From my limited experience of having worked with a Minister, I thought that when heads of a Bill were drawn up it was usually with the agreement of the Minister. I do not have direct experience of the Department of Health and Children but it appears that practices in the Department were extraordinary if this report is anything to go by.

We are not discussing the Health Service Executive in this legislation but the framework of legislation now required on foot of the Supreme Court judgment and everything that has been revealed. What will now happen, given that,effectively, the entire administration of the Department of Health and Children has been transferred to the Health Service Executive? The reference in the report to the speed at which decisions were being made is notable. Pages 51 and 52 refer to the wanderings of the famous folder around the Department and the various desks on which it ended up. The Secretary General, in his statement, states: “My view then and now is that this was a period of corporate and personal overload where the Department attempted to get through too much in too little time”. That is some admission. He further states:

If the Department attempted to get through too much in too little time there was a system failure. Effectively, a system overload resulted in system failure, one of the consequences of which is the disappearance of a file.

The statement by the then Minister in the report refers to the period when the famous management meeting took place in the Gresham Hotel. In his statement he provides a backdrop — page 53, third paragraph — and refers to the——

Mr. Dardis: Information on John Dardis  Zoom on John Dardis  This is all very relevant to the Bill.

Ms O’Meara: Information on Kathleen O'Meara  Zoom on Kathleen O'Meara  I said at the outset — perhaps it was before Senator Dardis came into the House — that this is all the same area. Unfortunately, I will not be in a position to attend the House tomorrow to contribute to the debate on the Travers report so I hope the Senator will bear with me.

Mr. Dardis: Information on John Dardis  Zoom on John Dardis  The Senator is getting her retaliation in first.

Ms O’Meara: Information on Kathleen O'Meara  Zoom on Kathleen O'Meara  Exactly. I am sorry that is the case but c’est la vie. In his statement the Minister talks about the backdrop to the 16 December 2003 meeting. He states:

The Minister of State, Deputy de Valera, who is now in the Chamber and very welcome, will recall that in October and November 2003, big marches took place on the streets of both Ennis and Nenagh. It is clear that the Hanly report was the major political issue then and this other issue was a smaller one.

This also raises the matter of attempting to get through too much in too little time. It was a major point of political pressure in terms of the health reform programme but my concern is that we rushed through legislation to set up the Health Service Executive without members of a board and a five year business plan being in place. In light of this report, it appears the establishment of the executive was at the very least premature. We will have to examine how issues such as corporate responsibility and accountability are now managed by a board which is not in the Department of Health and Children. I would like to hear the Government’s response on that. To give a roundabout answer to the comment made by Senator Dardis, the Travers report and the set of [1242]issues it raises are very relevant to the legislation before the House.

On the doctor-only medical card, which is not a bad idea, speaking as a public representative I hope it works. I hope it will give relief to those who need it most because I know, and I am sure others know also, that there are people who do not visit their general practitioner because they cannot afford it. There are those without medical cards who do not bring their children to the GP for that same reason. I hope we are going far enough in this legislation to ensure that aspect is covered.

It is to be hoped that the impact of the scheme will be to generate some relief on the pressures facing the hospitals’ accident and emergency units. If people feel they have greater access to their GPs they will be less likely to attend an accident and emergency unit or to wait until such time as they need to do so rather than having it dealt with early and effectively by a GP in a primary care capacity. I will wait to see how it will work in practice.

Our provision, through the public system, for care of the elderly is woefully inadequate. In light of the fact that the Hospital of the Assumption in Thurles is being upgraded at one level, which is welcome, but that, at another, the number of public beds is being reduced from over 100 to 70, one must ask serious questions about the Government’s commitment in respect of care of the elderly.

Mr. Dardis: Information on John Dardis  Zoom on John Dardis  I welcome the Minister of State, Deputy de Valera. I also welcome the Bill which, at one level, is essential, particularly as it rectifies the deficiency that has existed in the system for 30 years. An attempt was made to rectify this deficiency before Christmas and it is important to state that the Supreme Court did not find the practice of charging unconstitutional. The court did, however, find the retrospective aspect unconstitutional. The latter is an important point because there seems to be some suggestion in certain quarters that the practice was unconstitutional but that is not the case.

The Bill is also essential in terms of giving legislative effect to a decision to provide GP-only medical cards. This, however, was not imperative in the same way as rectifying the original defect in the system. That is why the Bill is important and why it must be passed by the Houses.

I accept that it is impossible to consider the Bill in isolation to the Travers report because it derives from the subject matter thereof. It underlines an important principle which is dealt with in the opening pages of the report, namely, that of perceived fairness. The report refers to the “perceived fairness of requiring a reasonable financial contribution to the costs of public health services on the part of those persons receiving such services taking account of their ability to make such persons”. That principle has been outlined on several occasions, particularly in the health strategy published by the Government in 2001 [1243]which states, “It is fair 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”. I do not believe there is any dispute between various political perspectives on that matter. Most reasonable people accept that those who are in a position to subvent their care should do so.

A legal defect existed and it is to the credit of the Tánaiste and Minister for Health and Children and others, including Deputies Perry and Kenny, that this was identified and, more importantly, that action was taken to rectify it. It is not as if the identification of the defect is something new. That had happened as long ago as the mid-1970s. Section 1 of the Bill deals with full eligibility. Part of the difficulty that arose related to the concepts of full and limited eligibility and how they apply.

The Tánaiste is to be commended for acting quickly to rectify the defect. We have had one attempt at doing so which was struck down by the courts, the independence of which we accept, and we have now been presented with a second one which, I hope, will prove successful. A certain determination and an acceptance that things had been done incorrectly was required in order to do what the Tánaiste has done. The Travers report, which apportions blame, represents a manifestation to get to the bottom of this matter. The report is unusual in that it is concise, explicit, makes findings and, perhaps, will teach us some lessons about tribunals and their inadequacies.

Ms O’Meara: Information on Kathleen O'Meara  Zoom on Kathleen O'Meara  It is extremely well written.

Mr. Dardis: Information on John Dardis  Zoom on John Dardis  Yes. For one person to undertake to compile the report and to complete it within such a short period is a monumental achievement, particularly in light of the number of years that were the subject of investigation and the amount of documents to be examined. Mr. Travers is to be congratulated for what he has done.

The constitutional imperative means that we are obliged to provide resources and to ensure there will be reasonable expenditure in respect of people. There is an important aspect of the Bill which dates back to what was originally intended to be dealt with by the chief executive officers of the health boards and which is now being dealt with by the Health Service Executive. Section 4(4) states:

[1244]It is vital, particularly in the area of health, that people who are independent should have discretion to adjudicate as to whether someone should be liable for payments or whether they should be exempt. This is an important part of the Bill and I welcome it.

On the basis of the figures furnished to the Joint Committee on Health and Children earlier today, I understand that some 315,800 people, or their families or estates, will be eligible for repayments as a result of what has happened. This will expose the State to a potentially huge financial bill of between €500 million and €2 billion. I cannot understand how, as the report appears to indicate, people knowingly allowed this matter to drift to the point where the State could be exposed to such a massive extent.

If I understood what was said earlier today correctly, several political points were made as to culpability in respect of this matter. It is worth pointing out that six of the 16 Ministers who held office during the period of 30 years in question represented parties other than Fianna Fáil. Of these, only one, the late John Boland, who served in the interregnum between Governments as an interim Minister for Health, brought this matter to the attention of the then Cabinet. The report is explicit in terms of apportioning culpability. It states:

That is quite an explicit statement. The report proceeds to state that long-term systemic corporate failure occurred.

Senator Quinn made an important point regarding the supremacy of the law. We are all subject to the law and it is impossible for the Houses, the Government or local authorities to act ultra vires. Apart from the late John Boland, the legal advisers within the Department come out of this matter with considerable credit. It is obvious that over a sustained period, they were concerned about this matter to the point where they wanted action taken in respect of it. It is obvious that the South Eastern Health Board, as well as some of the other health boards, had similar concerns. Where did the blockage come from? When it reached a certain level, it just seemed to remain static. That was wrong and now we are paying the penalty. The Bill is important as it rectifies a situation that should have been cleared up a long time ago.

[1245]Some 200,000 people are eligible for free GP services. I hope that the free service will have a positive effect on the number of people presenting at accident and emergency departments. It is undoubtedly the case that some people are going to accident and emergency who could be treated by their GP. It would be preferable for them to visit the GP before presenting at accident and emergency, so that the doctor could make the referral. Many of these patients would be discharged rather than block up the system. Approximately 29,000 people presented to the accident and emergency department in Naas General Hospital last year. Kildare has a population of 160,000 people, so such a statistic represents a huge proportion of the population. One has to wonder why that happens.

This Bill also rectifies the deficiency regarding nursing homes. It fulfils the commitment of the Government to provide free GP services to those who are eligible. It deserves a quick passage through the House and should be enacted as soon as possible.

Mr. Bannon: Information on James Bannon  Zoom on James Bannon  I welcome the Minister of State, Deputy de Valera, to the House. When this Bill was debated in the Dáil this morning, the Tánaiste and Minister for Health and Children did not turn up. I am disappointed that she has not turned up to this debate this evening either.

Mr. Dardis: Information on John Dardis  Zoom on John Dardis  The Senator is not entitled to refer to someone who is not in the House. He has no knowledge of why the Tánaiste is not here.

An Cathaoirleach: Information on Rory Kiely  Zoom on Rory Kiely  Senator Bannon’s remarks are out of order. A Minister is present and there should be no reference to anyone who is absent.

Ms Feeney: Information on Geraldine Feeney  Zoom on Geraldine Feeney  The Senator should withdraw his remarks about the Tánaiste.

Mr. Bannon: Information on James Bannon  Zoom on James Bannon  I acknowledge the presence of the Minister of State. Since the current Minister for Health and Children took up her portfolio, the inadequacies in the health service have become more obvious. Cutbacks, nursing home nightmares, medical card disasters and waiting lists are all more prevalent. I support the comments of my colleague, Senator Browne, on this Bill. It is a desperate attempt by the Tánaiste to cover her tracks and gain legislative respectability, which the original rushed Bill failed to provide. This is evident everywhere and I acknowledge the President’s contribution in referring this legislation to the Supreme Court. I also acknowledge the efforts made by Deputy Perry and my party leader, Deputy Kenny, in chasing this up. These two men continually pursued this issue. I acknowledge the compliments paid to both men by Senator Dardis.

Mr. Dardis: Information on John Dardis  Zoom on John Dardis  The Senator will naturally reciprocate such compliments to the Tánaiste.

[1246]Mr. Bannon: Information on James Bannon  Zoom on James Bannon  There are critical questions to be asked about the former Minister for Health and Children, Deputy Martin, and his knowledge of the legality of charges on public nursing home patients. On several occasions, Senator Dardis stated that the issue was brought to the notice of the Minister’s civil servants. He acknowledged the statements by the late John Boland at an early stage.

Mr. Dardis: Information on John Dardis  Zoom on John Dardis  I never mentioned Deputy Martin, good, bad or indifferent.

Mr. Bannon: Information on James Bannon  Zoom on James Bannon  From the report, it is clear that on a number of occasions, the former Minister for Health and Children, Deputy Martin, might have been briefed on the legal doubts about these charges. In December 2000, a political decision was made to introduce automatic medical cards for people over 70. According to the Comptroller and Auditor General, a decision was communicated to the Department of Health and Children by the Department of Finance only a few days before the budget. The legislation to enact this decision was then the responsibility of the Department of Health and Children. Did the Department signal to the Minister the implications of this decision on levying charges on patients in long-stay facilities? In March 2003, an extract from legal advice obtained from the South Eastern Health Board on the legality of these charges was given to the Department. Given the gravity of that advice, was the issue brought to the attention of the Minister? I presume it was, but it was not acted upon.

Action should have been taken on several occasions to save taxpayers money. This seems to have been overlooked for short-term gains by the Government parties of the past eight years.

Ms Feeney: Information on Geraldine Feeney  Zoom on Geraldine Feeney  Fine Gael formed part of some of those Governments over the past 30 years.

Mr. Bannon: Information on James Bannon  Zoom on James Bannon  Rather than dwell on this ground which was comprehensively covered by Senator Browne, I would like to look at the broader ills of the health service which the Tánaiste has failed to address. In my own area of Longford-Westmeath——

An Cathaoirleach: Information on Rory Kiely  Zoom on Rory Kiely  The Senator should only speak to the Bill.

Mr. Bannon: Information on James Bannon  Zoom on James Bannon  This is relevant to the Bill and I will explain why. The official announcement of the closure of the ear, nose and throat clinic for the Longford-Westmeath area was made only three days ago. This was flagged in the Hanly report and in several statements by the Minister.

Ms Feeney: Information on Geraldine Feeney  Zoom on Geraldine Feeney  The Senator must stick to the Bill.

An Cathaoirleach: Information on Rory Kiely  Zoom on Rory Kiely  Parochial matters are not relevant to this Bill. I ask the Senator to address the Bill.

[1247]Mr. Bannon: Information on James Bannon  Zoom on James Bannon  Provision is made in this Bill for the reduction in travelling costs for carers and home help. This is particularly evident in one section of this Bill. No Member has highlighted this so I would like to do so. The current Minister has run around the country delivering whitewash, yet has done very little for the health services in the midland region.

Mr. Dardis: Information on John Dardis  Zoom on John Dardis  If the Minister can deliver whitewash, then the Senator can deliver slurry.

Mr. Bannon: Information on James Bannon  Zoom on James Bannon  She can mop it up any way she likes.

An Cathaoirleach: Information on Rory Kiely  Zoom on Rory Kiely  The Senator must speak to the Bill.

Mr. Bannon: Information on James Bannon  Zoom on James Bannon  Senator Dardis can package it any way he likes for the Minister, but she has failed to deliver. That we have a new Bill before us today represents negligence on the part of the Minister. I would like Senators to acknowledge that. On several occasions the Minister was told——

Mr. Dardis: Information on John Dardis  Zoom on John Dardis  The Senator should not get excited or he might wind up in accident and emergency.

Mr. Bannon: Information on James Bannon  Zoom on James Bannon  In November 2001, the then Minister for Health and Children published his long awaited health strategy amid great fanfare. I was a member of the Midland Health Board and I refused to attend the launch because of the waste of money the event represented.

Mr. Dardis: Information on John Dardis  Zoom on John Dardis  I am sure the Senator never went to a conference in his entire career.

Mr. Bannon: Information on James Bannon  Zoom on James Bannon  The strategy promised new legislation to provide for clear statutory provisions on entitlements. The promised legislation was supposed to provide a clear framework for the financing of long-stay care for older people. In preparing that health strategy, was the issue raised of the legality of charges for long-stay patients? The 2002 annual report of the Ombudsman stated clearly that a patient with a medical card was not liable for charges because he had full eligibility. The implication of this decision on the legality of charges was significant.

An Cathaoirleach: Information on Rory Kiely  Zoom on Rory Kiely  I must interrupt the Senator as Private Members’ business is to be taken now in accordance with today’s Order of Business. I ask the Senator to move the adjournment of the debate, which will be resumed at the conclusion of Private Members’ business. Senator Bannon will have two minutes left when he resumes, if he comes back.

Mr. Bannon: Information on James Bannon  Zoom on James Bannon  Two minutes?

An Cathaoirleach: Information on Rory Kiely  Zoom on Rory Kiely  Yes, you have spoken for eight minutes.

[1248]Mr. Bannon: Information on James Bannon  Zoom on James Bannon  I will be back.

Debate adjourned.


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