Oireachtas Joint and Select Committees
Wednesday, 29 May 2013
Joint Oireachtas Committee on Public Service Oversight and Petitions
Ombudsman's Report on Nursing Home Care: Discussion with Department of Health
I ask for mobile telephones to be switched off for the duration of the meeting as they interfere with broadcasting equipment even when in silent mode. I welcome Dr. Ambrose McLoughlin, Secretary General at the Department of Health. He is accompanied by Ms Geraldine Fitzpatrick, assistant secretary in social care, Ms Gráinne Duffy, principal officer in the disabilities unit, Mr. Chris Costello, principal officer in the long-stay charges unit, and Ms Alison Keogh, assistant principal officer. Dr. McLoughlin joins us to deal with questions related to the 2010 Ombudsman's report entitled "Who Cares? An Investigation into the Right to Nursing Home Care in Ireland". At a committee meeting in February, Dr. McLoughlin contested the position that health boards had an obligation since 1970 to provide long-stay care for older people. He argued that adequate resources had never been provided to honour such obligations. As a committee with a formal relationship with the Ombudsman, we look forward to exploring some of the legacy issues arising from the 2010 report.
By virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of the evidence they are to give this committee. If they are directed by the committee to cease giving evidence on a particular matter and they continue to so do, they are entitled thereafter only to a qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and they are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise nor make charges against any person, persons or entity by name or in such a way as to make him, her, them or it identifiable. I invite Dr. McLoughlin to make his opening statement.
Dr. Ambrose McLoughlin:
I thank the Chairman and the committee for the invitation to appear before it again today. This is the third occasion this year on which we have had the opportunity to discuss issues relating to the mobility allowance and the motorised transport grant, and I am happy to update members as far as I can on the significant amount of work undertaken over the weeks since I last appeared before the committee on 6 March. I am aware the committee wishes to address, in a general way, additional issues regarding the Department, and the Ombudsman and I will endeavour to address any matters in this area for the committee. As before, I will be happy to answer questions members may have.
With respect to members who have had an opportunity to discuss the history of the issue before, I do not propose to go through in detail the context of the decision of Government earlier this year regarding the future of the mobility allowance and motorised transport grant schemes. However, for the record, I should say that the Government decided, on foot of a report from the Ombudsman, that it was no longer possible to continue the schemes in their existing format and that they should be closed.
I am happy to tell members that in the ensuing weeks a huge amount of work has been done by the group established to review the schemes and to recommend alternative solutions to the Government.
The Minister for Health, Deputy Reilly, and the Minister of State, Deputy Kathleen Lynch, established the review group, whose membership includes representatives of people with disabilities and service providers, several Departments and State agencies and others with relevant expertise and experience. The group is chaired by Ms Sylda Langford, who is a person held in high respect by all who deal with her and who has a wealth of experience in this field. I am also happy to confirm that following our meeting on 6 March last, and on foot of this committee’s request, the Minister of State, Deputy Kathleen Lynch, invited the Centres for Independent Living to nominate a member for the group. The group has benefited considerably from the wide experience and contributions of all of the varied and dedicated stakeholders. Each and every one has contributed significantly to the group’s research, preparations and deliberations.
While we await the outcome of the Government’s decision on what will happen next, I understand some of the many tasks which have been undertaken by the group on a collaborative basis include an analysis of the circumstances of those who have benefited from the schemes; an analysis of how mobility supports for people with disabilities are provided in other countries; and the collation of significant detail on the range of transport supports and developments across the wider State-funded sector. A large amount of consultation has also taken place, including a broad public consultation, several in-depth focus groups and a detailed survey of a significant percentage of existing recipients.
Given the short time available to the group, it is important to acknowledge the contributions made by all to this work. This has not only involved those who are directly members of the group, but was also supported by those in organisations such as the Irish Wheelchair Association, the Centres for Independent Living and the Disability Federation, which have provided invaluable assistance, particularly with focus groups; staff of the National Disability Authority, NDA, who have done research, helped with consultations and facilitated the focus groups; and those in Departments and other agencies such as Pobal, the Citizens' Information Board and the Health Service Executive, HSE, which have dedicated time and resources to bringing all of this together. I am confident the data gathered will aid the Government significantly in coming to conclusions on what it should do next to address these mobility and transport needs as well as looking at wider longer-term issues of transport for people with disabilities.
It is important to reiterate that the funding allocated to the two schemes remains committed to whatever solution the Government may decide to implement following consideration of the review group’s report. The Minister for Health and the Minister of State are very conscious, as is my Department, that the payment of the mobility allowance to current recipients will continue until the end of June and that many people are concerned about what will happen after that. It will be a matter for the Government to make decisions in its own time but, should the Government decide to assign any tasks to my Department or the HSE, I will ensure they are prioritised and implemented as soon as possible.
I will now address the wider context referred to in the committee’s invitation to attend today. I am aware that the Ombudsman raised a number of issues with this committee at a presentation on 6 December which were not related to the mobility allowance scheme and the motorised transport grant. In doing so, the Ombudsman made a number of points about the Department and the Minister for Health relating to the overall state of relations between the Ombudsman and the Department and the Minister. Many of the issues referred to by the Ombudsman are now dealt with and in the past. However, as with many matters, I feel the important thing now is that we, as the Department of Health, reflect on these experiences and draw meaningful lessons from them. I hope to demonstrate that we have, to the best of our ability, tried to use the Ombudsman’s reports and our experiences in dealing with her office to put in place a better system for dealing with the clients who, after all, are the reason we are all working in this Department.
At a hearing before this committee on 6 February, I disputed the Ombudsman’s points and briefly addressed the three examples given by her. Now, with the benefit of additional time, I will provide further detail on the issues. The Ombudsman had raised the matter of the 1993 subvention regulations and the assessment of the means of adult children to contribute towards their parents' care. This matter had already been corrected and compensation paid to those affected. I note that the Ombudsman has acknowledged this. The Ombudsman also outlined the history of the wrongful charging of public patients in long-stay care but acknowledged that steps to address this matter had been taken - notably, the establishment of the health repayment scheme. The State has already acknowledged the error in assessing adult children with regard to the 1993 subvention regulations as well as the wrongful charging of public patients in long-stay care and has already taken steps to correct the wrongs of the past.
The third issue raised by the Ombudsman during her appearance last December was the Who Cares? report. As I have previously informed this committee, there is a fundamental difference between my Department and the Ombudsman with regard to the interpretation of the 1970 Health Act. I do not agree with the position advanced by her. Her position is that since 1970, health boards have had an obligation to provide long-stay care for older people without limit. The Department of Health, and the many Ministers who have served in the Department since that time, have never agreed with that position. The essential argument made in the Ombudsman’s report is that the statutory duties imposed on the HSE, and its predecessor health boards, under the 1970 Health Act regarding inpatient services, including nursing home services, are not subject to any resource limitation. She stated that adequate resources had never been provided to honour these obligations in a transparent and accountable way.
The Government is not aware of any other country 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 those 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. I appreciate that the Ombudsman has formed a completely different view of the requirements of the legislation enacted by the Oireachtas. However, this is the genuine view of this Department and of the Government. I do not believe anyone could argue with the principle that it is a matter for the Government to determine the manner in which resources are to be prioritised and allocated.
It is only fair to also point out that this investigation was based on complaints received over 25 years, with 48 complaints a year on average. This must be seen in the context of an average nursing home population of more than 20,000 people in recent years. While we all accept that on principle even one complaint is one too many, I would argue that for the majority we do, in spite of very constrained resources at times, manage to provide a high level of service.
Regarding the Ombudsman’s views concerning the non-co-operation of the Department, it is true that the Department expressed serious concerns about the Who Cares? report and the manner in which it was undertaken. However, I must in all honesty take issue with one of the most serious allegations in the report - namely, that the Department refused to co-operate with this investigation by the Ombudsman. The correspondence published by the Ombudsman and by the Department shows conclusively that we always made it clear that we were willing to fully co-operate with any investigation by the Ombudsman that was conducted within the parameters of the Ombudsman Act 1980. However, we did have concerns about the Ombudsman’s jurisdiction in certain matters in light of the provisions of the Ombudsman Act 1980, as amended. Once we expressed concern about the Ombudsman's jurisdiction in dealing with the issues raised, there was no subsequent meaningful engagement by the Ombudsman with the Department on the investigation. The Department at all times sought to balance co-operation with the Ombudsman with the limitations of the jurisdiction assigned to her by the Oireachtas under the Ombudsman Act 1980. We were particularly concerned that this should not affect the right of the State to defend itself in any litigation.
In response to the issue of litigation facing the Department, and the Ombudsman’s repeated requests for information on how this litigation is being managed, I wish to make the following points. In defending litigation, a Minister is not discharging administrative powers but rather exercising the Executive power of the State and the inherent constitutional right that every litigant enjoys to defend litigation commenced against him or her. The Ombudsman’s jurisdiction is confined, very clearly, by the Ombudsman Act 1980 to the investigation of “any action taken ... in the performance of administrative function”, not an executive function. It is our firm view that the Ombudsman has no jurisdiction to investigate or seek or demand information in the litigation being managed by or on behalf of the State. Quite apart from the fact that these matters are outside the remit of the Ombudsman’s jurisdiction, it would be fundamentally unfair if a defendant in any litigation were compelled to make his or her legal advice freely available to third parties and to openly discuss the management of his or her litigation in public forums. To do so could fundamentally undermine the defence of his or her litigation.
A relatively small number of legal actions have been taken by people seeking compensation for private nursing home costs incurred by them or their deceased relatives. These cases are being vigorously defended. We have always acknowledged that there have been a number of settlements based on legal advice which had regard to the particular circumstances of the individual cases. There is nothing unusual or untoward about this.
I would not wish for this particular matter to forever colour the relationship between my Department and the Ombudsman. I acknowledge that the very nature of any process where an organisation is scrutinised by an outside agency can lead to its own tensions. However, I assure the committee that my Department fully appreciates the invaluable role of the Ombudsman in the overall structure of accountability for this State.
In that context, I highlight the many advances we have made in the area of long stay care for older people and wish to take a few moments to talk about the introduction of fair deal and the very significant improvements we have made in recent years. Indeed, the interventions of all three holders of the office of Ombudsman over the years have had a part to play in the shaping of where we are today.
The nursing homes support scheme commenced on 27 October 2009. Prior to its commencement, there were four stated objectives: to put in place an infrastructure of high quality and sustainable long-term residential care services for older people; to equalise State support for public and private long-term residential care recipients; to render private long-term residential care affordable and anxiety-free and ensure that no-one had to sell their home during their lifetime to pay for their care; and to remove the incentive to avail of public rather than private long-term residential care. The legislation underpinning the scheme includes a principle of resident choice. Individuals can choose to enter any nursing home, subject to it being able to meet their particular care needs and having an available bed. Importantly, individuals contribute on the same basis, irrespective of whether they choose a public, private or voluntary nursing home. Consequently, any financial incentive for people to avail of public nursing home care has been removed. The scheme has also eliminated the financial uncertainty that older people and their families faced. No longer do people have to worry about how they will fund their nursing home care. The scheme is very clear about the basis upon which people contribute towards the cost of their care. This makes it possible for people to plan ahead, safe in the knowledge that their nursing home care will be affordable.
Entering long-term nursing home is a hugely significant decision for any person. It is one thing to know that one will be able to afford the care. Equally important is the quality of that care. We have to ensure the highest standards of care are provided to residents in a safe and secure environment and that we meet the needs of those who require our services in the very best way possible. Residents, their families and the public need to be reassured that the care people receive is monitored.
On 1 July 2009, statutory responsibility for inspecting and registering nursing homes was given to the Health Information and Quality Authority's chief inspector of social services. This is underpinned by a comprehensive quality framework comprising the Health Act 2007, care and welfare regulations and the national quality standards for residential care settings for older people in Ireland. All nursing homes, whether public, private or voluntary, are subject to the same core standards in respect of quality and safety. HIQA carries out inspections across the nursing home sector to ensure these standards are being met and that residents are receiving the best possible care. Inspection reports for every nursing home are available on the Health Information and Quality Authority website.
To go back to the nursing homes support scheme, a commitment was made that it would be reviewed after it had been in operation for three years. This process commenced last year. The Department of Health called for submissions to inform the review. A summary report of the submissions received was published on the Department's website in December. The review will examine the sustainability of the scheme and the effectiveness of the current methods of negotiating and setting prices. It will also consider the balance of funding between long-term residential care and community-based services and the extension of the scheme to patients with disabilities and mental health disorders. It is expected that the review will be completed in 2013.
In short, under successive Governments, the landscape for nursing home care in Ireland has been reshaped and redefined over the past five years. We now have a national legislative framework for access and financial support for nursing home care together with an independent quality assurance and inspection function residing in the Health Information and Quality Authority. We in the Department are very proud of the advances we have made in this area and acknowledge the many stakeholders who assisted us along the way, including the Ombudsman through the many complaints and reports over the years.
I am very conscious that this committee, and indeed others, have expressed in public concerns about the overall nature of the relationship between the Ombudsman and my Department. I hope that I have in some way allayed those fears today. However, since I took over as Secretary General, I have also decided to proactively foster a better working relationship with the Ombudsman. I have undertaken a series of practical measures, including the appointment of a senior official in my Department to act as Ombudsman liaison, and this official will also report regularly to my management advisory committee on any issues of concern or trends emerging with the Ombudsman in order that they can be dealt with at a very early stage.
I will never shy away from placing and accepting blame where needs be. I must ask that everyone acknowledges that for a large number of people, we do get it right and meet the needs of our population. There is still work to be done but we cannot allow the past to overshadow our ongoing work and our plans for the future. Where mistakes have been made, they have been acknowledged and it is time to move on and focus on the future.
My Department is now in the middle of the most radical and far-reaching health reform initiative since the foundation of the State. At the centre of this reform will be each and every citizen who deserves to live the healthiest life possible. I know that the same citizen is at the centre of the Ombudsman's concerns and I know that if we both work together, the citizens of Ireland will benefit.
I believe the Ombudsman carries out an important and valuable function. It is regrettable that the relationship between her office and the Department of Health has deteriorated in recent years, and I want to assure the committee that my officials and I are committed to rebuilding that relationship and ensuring we can all work together in a productive and respectful manner.
I welcome the Secretary General and his officials. We appreciate them being here. I also commend the fact that they are in the process of restructuring the Department and have made that appointment as a liaison point for the Office of the Ombudsman. All of us present would agree that improving relationships between the Department and the Office of the Ombudsman is key and is, in effect, why we are here. No one on this committee chooses to pull out anything here, as it were.
As a committee, we are responsible for responding to the observations made by the Ombudsman when she appeared here in December. I am sure the Secretary General will have read very clearly the statement the Ombudsman made that day. She was not disputing the progress that has been made in respect of the care given and the reforms the Department may be making. Her concern was the lack of care she felt the Department showed towards the law. As Dr. McLoughlin will recall, she went through three examples of she believed was the Department's tradition of care that was not so good. I know Dr. McLoughlin noted the three things in his response today and has given us the good side of that. If one reads the Ombudsman's explanations and observations, one can see an entirely different picture. She talks about legal advice being reiterated by the Minister's legal advisers and how the Department gambled for six years that it would get away with something it knew was illegal. In respect of the Travers report, the Ombudsman makes it very clear that the breach that occurred cost the State €500 million. I accept that is in the past and Dr. McLoughlin said his ambition is to improve that, which is good.
In respect of the Who Cares? report, the Ombudsman said this was a continuing case and while there may have been 48 complaints per year, they had accumulated to more than 1,000. That adds up to a lot of people who complained because they did not receive the care they believed should have been provided to them by the health boards or the HSE. In her investigation, the Ombudsman decided that this was the case but she did not say that they should all be compensated. As I understand it, she recommended a much smaller form of redress. In her statement, she said that this was ignored or not responded to, which I thought rather odd because Dr. McLoughlin repeatedly made the point that the Ombudsman does not seem to understand the cost of this to the State.
She stated clearly that she understands the larger compensation matter would cost the State an enormous amount of money but when she offered a form of redress she did not receive a response. The witnesses may be able to clarify that.
I refer now to a point which appears to have caused a particular problem in respect of the litigants. Dr. McLoughlin indicated that he was reluctant to discuss this issue. I do not know who is right or wrong but the Ombudsman stated clearly to this committee that she inquired specifically about the various cases. She wanted to know how many cases are awaiting settlement and how many were settled out of court, how much they cost and why they were settled. She stated that the Department was obliged to disclose this information to the Ombudsman. That is her interpretation but I doubt she would have come here just to have a go at the Secretary General. The Ombudsman is a serious office, as Dr. McLoughlin has acknowledged. We are still in the dark on these questions. I understand that 30 cases have been settled at an estimated cost of approximately €3 million. A footnote to one of the Department's documents suggests that 347 cases are awaiting settlement. That is not a small number and these cases are serious matters for those who are waiting to fight for what they believe they should have been given. The Ombudsman offered them an opportunity for redress but that was not followed through and they are now bogged down in a legal system which we all know is exhausting and lengthy. If the Department is not obliged to disclose this information to the Ombudsman, to whom is it obliged to disclose it? As far as I am aware, it is not the Comptroller and Auditor General. Who is aware of the amount of money spent on this matter and how much we may spend on it? After all, this is taxpayers' money.
The Ombudsman went further to ask whether the Department was being obstructive in its approach. She suggested this in her 2010 report but by 2012 she became more clear about it, stating that the approach appeared to involve intentional tactics to delay cases coming to a hearing. She also stated that when a particular case reaches the point where an order of discovery is made, the State side offers a settlement which is subject to a confidentiality clause. On the one hand, we know nothing about these cases in terms of their quantity, quality or amount of money involved and, on the other, the Ombudsman accuses the Department of Health of obstructive tactics. That is a serious allegation and this committee is obliged to ask Dr. McLoughlin and his officials what on earth is going on.
Ultimately, they need to improve their relationship with the Ombudsman. However, the Department appears to be calling into question her role and her right to investigate. She received more than 1,000 complaints, but the Department argues she does not have the right to go about her business in this way. They cannot both be right. She argues that she is obliged under her statutory remit to ask those questions and to investigate, but the Department disagrees. That is the crux of the matter. The position is untenable into the future but I do not know how it can be resolved. It would be more appropriate for the Ombudsman to fold her tent and leave if she cannot ask those questions. I am sure she has taken serious legal advice on the nature of her remit and is not acting on a whim. Clearly, she believes she is acting within her statutory remit. While all of us would wish this to be part of the past, for those who are still awaiting a settlement it is very much in the present. The matter is still on the Ombudsman's desk and she saw fit to raise it with this committee on 6 December 2012. I am afraid it is very much a live matter.
I would like to know the number of cases involved. If Dr. McLoughlin cannot give us the figures, is he providing them to the Taoiseach, the Minister for Health or the HSE? Who knows about the number of cases? Given the broken relationship between the Department and the Ombudsman, what is he going to do to repair it? The committee is responsible for investigating that relationship.
Dr. Ambrose McLoughlin:
I want to be clear that my immediate predecessor and I have at all times acted on the advice of the Attorney General in dealing with this issue. We report to the Minister on it and I am sure the Ombudsman would recognise my duty of care for the resources of the State. These are the taxpayers' resources and I cannot and will not create precedents which would subsequently expose the State to high levels of payments that could not be justified.
To the best of my knowledge, approximately 240 cases relate to fees paid on private nursing homes. I understand we are predominantly dealing with the estates of individuals rather than actual clients. The clients or their estates are entitled under the Constitution to pursue cases and once they do so, we are in an adversarial system. My Department must act prudently and properly in line with the advice of the Attorney General. Before engaging in such litigation, we brief our Ministers fully and both the Minister for Health, Deputy Reilly, and the Minister of State at the Department of Health, Deputy Kathleen Lynch, are fully aware of these matters from a legal perspective.
We are dealing with different cases and expectations differ on the part of the various litigants. We have to consider each case on its merits to decide on the best defence. In the current economic climate, if we were to open the floodgates the consequences for the basic operation of our health service could be serious. The Department is funded by the Exchequer and the Oireachtas funds the health system. Whenever we are faced with legal challenges that have financial consequences, we are required to exercise a duty of care in respect of the State. We do that through the Attorney General's office. It is a matter for the committee and the Oireachtas to decide how much to spend on the health service and I am accountable as Secretary General for ensuring these matters are dealt with in accordance with the best evidence-based governance practices.
We have, however, provided a considerable amount of information in response to parliamentary questions. Since the litigation commenced in 2005, for example, we have already reported on a total of 33 cases involving fees paid to private nursing homes which were settled at a cost of €1.2 million. I face serious constraints when it comes to discussing legal fees. I cannot provide details on legal costs, but we are represented in the usual way by the Office of the Chief State Solicitor and the Attorney General. The Department fully complies with all financial and accounting procedures, including those required by the Comptroller and Auditor General. There is a proper accounting and reporting structure.
In the Secretary General's opening statement he says it is a case of the views of the Department on one side and that of the Ombudsman on the other. Has a case ever been taken where it has gone to court and a ruling been made as to what the law is as opposed to a view from either side?
Dr. Ambrose McLoughlin:
All these cases primarily centre on the question of compensation. Certain people look for different reliefs in certain declarations so I am not in a position to go into the details of any individual case. It would not be in the interest of the taxpayer that I go into the details here because we have other cases pending and they have to be dealt with.
Dr. Ambrose McLoughlin:
To be clear, the fact that we have settled some cases does not mean one can conclude that the Department's position is not correct. The position is clear to me and to the Minister for Health, Deputy Reilly, and the Minister of State, Deputy Kathleen Lynch. We stand over the advice we have received from the Attorney General.
I thank Dr. McLoughlin for appearing before us again. He is very busy, but it is a matter of grave importance that we tease these issues out. I am returning to the Ombudsman's statement to us. She felt she should inform the committee that:
She is not the only one who said that. She and her predecessor as Ombudsman have seen this at close quarters and she recalled a number of different issues. She also said, and I will tie these up together:
The Department of Health has a long history of, to put it mildly, carelessness with regard to the law. This has been the case irrespective of which political party or coalition has been in government.
It seems clear that the Department is involved in a careful strategy of risk management. This risk would not exist if the Department had had proper regard to the legal obligation on health boards to provide long-stay care. If, by any chance, one or more of these cases comes to a hearing and judgment in the High Court and if ... that judgment goes against the State parties, the financial implications would be truly horrendous in terms of the amount of compensation likely to be payable to thousands of claimants.In her final comment she said:
As the Department represents it, the recommendations I have made are almost reckless from the perspective of the public finances ... What I am pointing out is that the Department of Health - because of what appears to be a culture of prevarication, disregard for the law and an inability to take hard decisions - has already caused the State to incur enormous costs and looks set to continue on that path.We have had a number of Ombudsmen in here and they are very careful with their words. My understanding of this Ombudsman is that she is very careful and would not say something like that very lightly. It is very hard to match what the Department of Health and the Ombudsman are saying, but it is clear, and Dr. McLoughlin said this, that there were fundamental differences of opinion and because of resource limitations the Department could not implement what the Ombudsman said.
The specific cases alluded to and talked about do not affect this committee. This committee's role is to examine systemic issues. We are asking what are the powers and role of the Ombudsman vis-à-vis the Government and the Departments under it. That is the fundamental issue here. There has been a similar situation with An Coimisinéir Teanga, with whom we have had hearings, and the Department of Social Protection, where it has said it is not going to follow the Ombudsman's advice because its legal advice says differently. We need clarity on that.
Under the Ombudsman Act, what is Dr. McLoughlin's understanding of the Department of Health's situation if it does not agree with the Ombudsman's ruling? Can the Department challenge that in the High Court? Under the Official Languages Act, if a Department does not agree with the ruling of An Coimisinéir Teanga, who is an ombudsman, the next step to take is to challenge it in the High Court. No Department has ever challenged that. What is the situation with the Department of Health and the Ombudsman if the Department does not agree with a ruling? Under the Act what is the next step of redress? Is it non-engagement, choosing not to agree, and making statements to committees like ourselves that the Department does not agree with it and non-implementation the Ombudsman's findings?
Some of the cases go back 20 or 30 years and I understand the view of the Department and the Government is totally different from that of the Ombudsman. This is a wider situation. The Attorney General and Government have been involved. Decisions have been made by numerous Governments. Did officials in the Department in any of the cases the Ombudsman cited suggest changes to the legislation so they would be in compliance with the Ombudsman's rulings? Have officials suggested changes to each of the three different schemes so the Department would be in compliance?
I was going to ask about the cost of settlements but that has been addressed. I appreciate that Dr. McLoughlin said he wants to move forward. Can he outline the mechanisms that have been put in place so that this cannot happen again? Most of the issues raised relate to the Equal Status Acts and equality. What equality-proofing measures has the Department in place that were not in place that will ensure this does not happen again? When a piece of legislation comes before the Department is it being equality-proofed? If so, who is doing that? What measures is the Department using? Is it the nine grounds of equality? From what I read, the Ombudsman's advice is that a piece of legislation that was brought forward created a potential liability on the State. She outlined what she saw as flaws in that legislation, which were not addressed. How can we ensure that does not happen again? What mechanisms does the Department have, or what changes have been put in place, to ensure that does not happen in the future?
Ms Geraldine Fitzpatrick:
In the Who Cares? report there were no formal recommendations. The Ombudsman just came to conclusions at the end of that report, from my recollection. I do not have it in front of me. She deliberately chose not to make recommendations in view of that issue around what she saw as the potential cost to the State should she do so. "Conclusions and reflections" is the headline she used. I worked for many years in the Office of the Ombudsman so my understanding still is that her recommendations are not binding, and that is one of the issues in the legislation. In the Secretary General's opening statement we referred to how this will not happen again. We have put in place the mechanism through the nursing home support scheme for access on an equal basis to long-stay care, whether private, public or voluntary. Everybody accesses it through that legislation and generally everybody is very happy that the legislation works very well.
I might not have explained what I was saying. If a new piece of legislation comes in regarding any area of health, what mechanisms are in place to equality-proof it so it will not be in contravention of the Equal Status Acts? The previous question on the Ombudsman's office was what is the next step after a recommendation, which the Department said it does not have to accept. Is there a legal step from when the recommendation is made?
Ms Geraldine Fitzpatrick:
Not to my understanding, sorry. We have in-house legal advisers. After all our experiences with the Ombudsman we go through things with a fine tooth comb. Our recent experience with the mobility allowance and motorised transport grant is evidence of the seriousness with which the Department takes the law.
We explained clearly to this committee the last time that we found it difficult knowing there were 4,700 people at issue but there was an issue with the equality legislation. It took us a while to come to a resolution about that. We will draft a great deal of legislation over the next few years because of the health reform programme, including bringing in universal health insurance. We will have to put the provision of community services on a new legal basis. All of that will be done carefully with reference to all the lessons we have learned from previous experience with the Ombudsman.
Dr. Ambrose McLoughlin:
I reassure the Senator that we will examine new legislation carefully through many prisms to ensure we avoid what happened in the past. I would like to clarify something. The Department clearly has executive functions and administrative functions. I want to draw the distinction between both because they are hugely important. Fundamentally, we have a duty of care to the resources of the State and we cannot, no matter what are the pressures, treat litigation from any source without having proper regard to the systems laid down for dealing with such matters. It is an adversarial process. If, at some time in the future, the Oireachtas wants to develop other systems for dealing with such litigation, that is entirely a matter for it but right now these matters come into the legal field, they go into court and we have to take the advice of the Chief State Solicitor's office and the Attorney General. If we did not, we would be in dereliction of our duty.
I welcome Dr. McLoughlin and his team. Is legislation being prepared to amend the Health Act 1970 to resolve this issue? He mentioned that there were 33 settlements. The Ombudsman made the point that they were settled at the point of the orders of discovery. It seems the advice from Chief State Solicitor's office or the Attorney General was to settle at that stage. Have all cases that have come to litigation been settled at that point? I acknowledge the difference of opinion between the Ombudsman and the Department but we can only take each opinion in good faith. There are strongly held views, which is healthy. We have witnessed what happens, when regulators, for example, are comfortable with Departments. It is not bad that there is friction between the Ombudsman and Departments. However, there are two opinions and we cannot judge or be the arbiters of them. As Deputy Nolan said, in settling cases, one would be human to think somebody is deciding who is right and who is wrong. Is there an inevitability coming down the tracks that we need to deal with? When the Department settles cases, there is no liability but the perception remains that there was in these 33 cases. What is Mr. McLoughlin's opinion on that?
Dr. Ambrose McLoughlin:
Let me be absolutely clear. I will not discuss any of the 33 cases and I will not draw one conclusion or another from them. These cases are settled and they are all separate matters. The new fair deal scheme is in place. The legislation was passed by the Oireachtas in 2009 and it deals with most of the issues.
Ms Geraldine Fitzpatrick:
The Deputy asked about amending legislation. The Nursing Homes Support Scheme Act 2009 amended all the relevant sections of the Health Act 1970 and it supersedes that legislation now. Legislation cannot be retrospective and, therefore, the cases are where they are. As Senator Ó Clochartaigh said, we manage them, like class actions, in a particular way but we have a legal strategy and a legal team. We manage them on a case by case basis. The cases have been settled at different stages of the process.
There are two different opinions from two State bodies on this and we cannot be the arbiters of this. Has the Department made an effort to seek a clarifying opinion through the courts on who has the correct interpretation of the 1970 Act?
Dr. Ambrose McLoughlin:
The position is that the Ombudsman has made her conclusions and reflections. I have examined them carefully. I have taken advice from the Chief State Solicitor's office and the Attorney General, as I am obliged to as Secretary General. That is where it is. Litigation has been taken against the State and it will be dealt with on a case by case basis. The Chairman will understand that I cannot go beyond that. I am satisfied that the position of the State is robust in this matter.
With regard to redress, the Ombudsman said she was not recommending compensation and she proposed a limited redress scheme. Why was it not taken up? That might have avoided litigation.
The Ombudsman clearly said the settlement of these cases is obstruction on the part of the Department. As Senator Ó Clochartaigh said, the committee has dealt with other ombudsmen and the language in her statement of 6 December was strong. What is Dr. McLoughlin's view on that?
I asked him earlier to address the future relationship between the Department and the Ombudsman. I acknowledge an official has been put in place but the Ombudsman stated: "Important as these schemes are for the people who should benefit from them, of far greater importance is the challenge thrown down by a Minister and his Department who, it would seem, refuse to respect the law of the land." Essentially, her entire statement on 6 December was about that and we have not addressed her point that the Department is not respecting the law of the land. It seems that the relationship is broken and cannot be repaired. Should the Ombudsman fold her tent because she can have no input due to a lack of respect?
Dr. Ambrose McLoughlin:
I assure the Senator I have huge respect and regard for the Office of the Ombudsman. I refer not only to the current occupant but also to her predecessors with whom I also worked.
The Senator raised the issue of redress schemes. They are extraordinarily difficult to design because of legal constraints. Once litigation is initiated, everybody is effectively asked to withdraw from it to buy into such a scheme. This litigation is complicated because we are dealing with estates and not necessarily individuals. People are seeking different reliefs and it is difficult to get a consensus because people are, ultimately, looking for monetary compensation. The Secretary General has to take advice on how to deal with that. However, I do not exclude the possibility of considering redress schemes to address future issues in other circumstances. Where litigation has commenced, it is difficult to-----
Mr. Ambrose McLoughlin:
She did in her conclusions and reflections but my advice was that I had to deal with it in the context of litigation and that is clearly the advice of the Attorney General's office. I have to act on that advice. Please respect my position on that because if I were to ignore the Attorney General's advice, there could be serious consequences for the taxpayer and the health system.
I will do my utmost to ensure the relationship is improved and is positive and constructive, but in administrative matters there will always be tension between the various elements of the State administering various schemes and the Ombudsman, and this is how the legislation is designed. I assure the committee we will work very hard on this relationship and do everything we can to address matters where they can be addressed.
In these circumstances the challenge has been made that I, the Minister, Deputy Reilly, and the Minister of State, Deputy Lynch, are ignoring the law of the land. I assure the committee we are doing everything we can within the law and we are people of integrity attempting to deal with very complex issues throughout the Department of Health. We have made significant progress, particularly in recent years in reforming the health system. The fair deal scheme is a good example of the progress that has been made. Throughout the health system we are dealing with issues such as hospital groups. We are examining new ways of managing the health system and holding it to account. The governance legislation is almost through the House which will give us a new structure for the HSE. We have better financial controls in the health system. Generally the reform programme is working and it is successful. We are in a very difficult time financially and must get more for less. We must do the very best we can in a very difficult time and I am very grateful to all of the front-line staff throughout the health system for their dedication and commitment. I assure the committee that we are anxious to provide the highest quality of service in caring for older people with the resources available.
Ms Geraldine Fitzpatrick:
I understand where the Ombudsman is coming from, but with the benefit of having worked in the Department for the past eight years and prior to that in the Ombudsman's office, the Department has every respect for the law of the land. The position in which everybody has found themselves is very unfortunate. At the centre of it are those we are still trying to help. We have worked very hard to move on from the era when this happened. I appreciate the conclusions and reflections in Who Cares' and we have tried to use it to learn as best we can, but it is very difficult in an era when giving something to one person means taking it from someone else. Trying to keep the show on the road means we examine everything we do. The legacy issues we are dealing with are estate issues. Without prejudice, is any form of redress scheme the right thing to do in an era when we had to cut €10 million from the home help service last year? We all find it very difficult in the climate we are in. The Department of Health deals with nothing but hard cases. Nobody on our books does not require assistance of a very personal type. The Department has every respect for the law of the land in these circumstances, but we must manage our risks and challenges in the best interests of the State and our existing client base.