Dr. Ambrose McLoughlin:

The Ombudsman refers to the 1993 subvention regulations and the assessment of the means of adult children. At the end of her remarks, she acknowledges that the wrong had been put right and that compensation was paid to those affected. In the context of the Travers report on wrongful charging, she gave an outline of the report and the history of the wrongful charging of public patients in long stay care. Once again, she acknowledges the steps taken to address the situation, notably the establishment of the health repayment scheme. On both issues, I agree the State erred and mechanisms were put in place to right the wrongs of the past. These issues are historical and have been well aired at this stage. People are well aware of them.

The third issue is the report, entitled Who Cares?, published in 2010. I do not agree with the fundamental position advanced by the Ombudsman. She stated that, since 1970, health boards had an obligation to provide long stay care for older people. The Department of Health and the many Ministers who have served in the Department since then have never agreed with that position. The essential argument made in the Ombudsman's report is that statutory duties imposed on health boards and the HSE under the Health Act 1970 in respect of inpatient services including nursing home services, are not subject to resource limitation. Adequate resources have never been provided to honour these obligations in a transparent and accountable way. The Government is not aware of any country in the world where health and personal social services are provided without some form of prioritisation, which reflects the reality of resource limitations. The reality is that access to health services has always been determined by a combination of clinical and other professional judgments within an overall resource availability envelope. Although people may be eligible to receive inpatient services under section 52 of the Health Act 1970, any entitlement to receive the services in a particular case has always been subject to, inter alia, the availability of adequate resources. The obligation to provide services prescribed in legislation enacted by the Oireachtas is clearly subject to the resources made available by the Oireachtas to provide those services. The Ombudsman has clearly misunderstood and mischaracterised the position of my Department and the requirements of legislation enacted by the Oireachtas in this regard. The Ombudsman has also failed to recognise that it is a matter for the Government to determine the manner in which resources are to be prioritised and allocated.

The Department has also expressed serious concern about the Who Cares? report and the manner in which it was undertaken. One of the most seriously and fundamentally untrue allegations in the report is that the Department refused to co-operate with the investigation by the Ombudsman. As shown conclusively by the correspondence published by the Ombudsman and by the Department, we always made it clear we were fully willing to co-operate with any investigation by the Ombudsman conducted within the parameters of the Ombudsman Act 1980. I think I have answered the Senator's questions.