Oireachtas Joint and Select Committees
Wednesday, 15 February 2023
Joint Oireachtas Committee on Health
Nursing Home Charges: Department of Health
Seán Crowe (Dublin South West, Sinn Fein)
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The purpose of the meeting today is for the Joint Committee on Health to meet with the Department of Health to discuss issues relating to nursing home charges. To commence the committee's consideration of this matter, I am pleased to welcome from the Department of Health Mr. Robert Watt, Secretary General; Ms Siobhán McArdle, assistant secretary, social care, mental health and drugs policy; Ms Laura Casey, older persons' policy unit; and Ms Audrey Hagerty, social care integration unit-disabilities services.
All those present in the committee room are asked to exercise their personal responsibility to protect themselves and others from the risk of contracting Covid-19. In relation to privilege, witnesses are reminded of the long-standing parliamentary practice that they should not criticise or make charges against any person or entity by name, or in such a way as to make him, her or it identifiable, or otherwise engage in speech that might be regarded as damaging to the good name of the person or entity. Therefore, if their statements are potentially defamatory in relation to an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative that they comply with any such direction.
Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official, either by name or in such a way as to make him, her or it identifiable. I remind members of the constitutional requirement that members must be physically present within the confines of the Leinster House complex, in order to participate in public meetings. I will not permit a member to participate where they are not adhering to this constitutional requirement. Therefore, any member who attempts to participate from outside the precincts will be asked to leave the meeting. In this regard, I would ask any member participating via Microsoft Teams that prior to making their contribution to the meeting, they confirm that they are on the grounds of the Leinster House campus.
To commence our discussion, I now invite Mr. Robert Watt to make his opening remarks on behalf of the Department of Health.
Mr. Robert Watt:
Good morning Chair. It is good to see you again. I thank you for the invitation to meet to discuss the issue in relation to nursing homes. I am joined by colleagues who you have mentioned.
The nursing homes support scheme currently supports more than 22,500 residents in approximately 550 nursing homes across the State. Funding of €1.1 billion has been provided for the scheme in 2023. The scheme aims to ensure that long-term nursing home care is accessible and affordable for everyone and that people are cared for in the most appropriate settings. It provides a universal and transparent system of support that is fair to all, irrespective of whether they are in a public, private or voluntary nursing home. Participants contribute to the cost of their care according to their means, while the State pays the balance of the cost.
As members are aware, prior to the introduction of this scheme in 2009, separate arrangements existed for funding public and private nursing home care. Up to 2009, people who were provided with publicly funded long-stay care in public facilities and in publicly contracted beds paid a contribution towards the cost of their maintenance through a charge. These charges were raised under regulations made in 1954 and 1976. The majority of the cost of public nursing home care was funded by the State through the health budget at that time.
The situation with private nursing homes, as members are aware, was different. People entered into contractual arrangements with these homes and were responsible themselves for meeting the costs of the fees. This included people who were assessed as fully eligible under the Health Act 1970 and had a medical card. The State provided financial assistance towards the cost of fees through a subvention scheme. It was accepted in 2004 that there was a flawed legal basis for raising charges on those with full eligibility in publicly funded care. This was regularised by the introduction of legislation in 2005 to provide for charges in publicly funded care and the establishment of a repayment scheme to refund charges that had been paid pre-2005. The scope of the repayment scheme was well publicised at the time.
It is a matter of public record that people who paid fees in private nursing homes have taken legal cases on the basis of claims that the State failed to provide nursing home care in private nursing homes free of charge to those who had full eligibility under the Health Act 1970. Cases have been managed by the Department of Health on a case-by-case basis in close consultation with the Office of the Attorney General. The consistent position has been that it was not the policy intent of Government at that time for public moneys to be used in this way, and that eligibility under the Health Act 1970 was and continues to be subject to the availability of resources. This matter has been the subject of significant discussion over the years. It is important to state that it is well accepted that the previous dual system of funding for public and private nursing home care was unfair. Thankfully, the nursing homes support scheme now provides for a fairer system of support for all.
I would like to address related issues that have arisen in relation to payment of contributions towards maintenance in residential disability services. Similar to the position on nursing homes, it has been the long-standing policy position that it is fair and reasonable that people should make some contribution to the cost of their long-term care, and that such contributions from residents’ income towards household expenses is in keeping with the mainstream policy of supporting people with disability to live ordinary lives in ordinary places.
In circumstances where long stay inpatient charges were not levied on residents in disability facilities, residents may have made contributions towards household expenses if they had means. These contributions were not raised under the 1954 or 1976 regulations, which were subsequently found to be ultra vires. They were therefore not comprehended within the 2006 health repayment scheme. Claims were made for repayment of these contributions by, or on behalf of, residents in some of these facilities under the health repayment scheme. These claims were rejected by the scheme administrator on the basis that they were not within the scope of the scheme. Appeals to this decision were taken, and the independent appeals officer determined that contributions made by residents of a number of institutions should be repaid under the provisions of the scheme. The rationale for this decision was related to the specific contract that these organisations had with the relevant health board for inpatient services.
The Department of Health and the HSE originally appealed these decisions to the High Court, but the appeal was subsequently withdrawn, and repayments did issue in respect of these cases. The decision to withdraw this appeal did not change the position of the Department that voluntary contributions did not come within the definition of recoverable changes set out in Health (Repayment Scheme) Act 2006.
This matter is complex, and Deputies on the Committee of Public Accounts have raised questions with me and colleagues in respect of this. I believe it requires further examination. It will require further engagement with the HSE to enable a better understanding of the situation, and I have written to the HSE in this regard this week. It will also require engagement with the Office of the Attorney General. This work will be comprehended within the broader examination of matters raised in recent weeks, with the agreement that the Minister for Health, Deputy Stephen Donnelly, will revert to Government in three months on any further steps required.
To conclude, the Minister for Health, Deputy Stephen Donnelly, and the Minister for Social Protection, Deputy Heather Humphreys, have undertaken to consider the report of the Attorney General in full and to revert to the Government in three months regarding any further steps that may be required. I am happy to take any questions from members of the committee.
Seán Crowe (Dublin South West, Sinn Fein)
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Thank you very much for your opening statement. I am going to move on to members, starting with Deputy Colm Burke.
Colm Burke (Cork North Central, Fine Gael)
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Before I start, I want to declare that I acted in a legal capacity - and the Secretary General is aware of this - against the Department of Health and the health boards starting in 2004 in relation to these nursing home cases, and, in fact, I acted in the settlement of both public and private cases. In fairness to the people before us, some of this goes back as far as 1956, if you go through all of the changes and everything else. We must fully accept that the people before use only recently become involved in this area, and we have to acknowledge that.
On the issue of nursing home charges, and the Department's delay in taking action, there was a case in 1976 in respect of Maud McInerney, which defined nursing home care. I understand a senior counsel opinion was sent to the Department of Health as far back as 1978, and still no action was taken throughout the following 28 years until 2004, when there was a legal challenge over those charges in public nursing homes.
I am concerned about the fact that when a Department became aware of an irregularity - and this was highlighted in the Ombudsman's report in 2000 - no action was taken. I wonder now, in relation to the other matters that are coming up in respect of private nursing home claims, about setting up a structure to deal with them, in particular private nursing home claims where there was clear evidence that there was a demand for a public bed at the time, that that demand could not be met by the health board or the HSE and that as a result the person went into a private nursing home.
Is there not now a need to look at the structure where there is clear evidence that there was such a demand for a public bed, it was not provided and, as a result, the person ended up having to pay full private nursing home charges?
Colm Burke (Cork North Central, Fine Gael)
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If there is clear evidence that someone had looked for a public bed in a public nursing home, could not get a public bed and ended up in a private nursing home, is there not now a need to set up a structure to allow that funding, the moneys such people paid over, to be refunded to them?
Colm Burke (Cork North Central, Fine Gael)
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Yes, but the legal cases have never been decided and, as I have openly declared, I am no longer involved in any of that.
Colm Burke (Cork North Central, Fine Gael)
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The issue still arises that there are quite a number of people who did not take cases but who feel aggrieved by the fact that they could not get a public bed and did not get any State support, even though they were technically entitled to State support. Has the Department looked at that issue? How does it propose to progress it?
Colm Burke (Cork North Central, Fine Gael)
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Does the Department intend to look at it?
Colm Burke (Cork North Central, Fine Gael)
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I will move on to the matter of the people who were in facilities and were not refunded. I am talking about public facilities where charges were deducted. Will the Department now look at that issue?
Colm Burke (Cork North Central, Fine Gael)
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Yes, but then there were other cases in which people were in facilities which were not covered by that scheme. Will the Department now look at that whole issue?
Mr. Robert Watt:
There is an issue in respect of individuals who were in disability centres. There were separate cases I think I mentioned in my opening statement. The Department is looking at this to see if there are other cases and other facilities that may have been covered in similar circumstances to those of the people who appealed and whose appeal was then challenged and where the Department at the time then ensured those people were encompassed within the scheme and were paid during the operation of the scheme. We are therefore looking to see if there are other facilities that encompass similar circumstances. I think there were three in Dublin and there is one in Limerick now. We are looking at that and we have said we will come back within three months.
Colm Burke (Cork North Central, Fine Gael)
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Mr. Watt is talking about coming back within-----
Mr. Robert Watt:
I discussed this last week. Deputies Cullinane and Carthy asked me about it last week. It is more detailed and more complex and we will have to come bac on it. We just do not have the information now. I apologise for that. We are engaging with the HSE and going through the files. The files, as the committee can imagine, since they relate to historical issues, are paper files. It is a matter of finding the files and going through them. We are doing that. I understand that the issue is with the definition of inpatient services and in respect of the Eastern Health Board. In the three cases in Dublin it was decided that the services were more of the nature of inpatient services and could be encompassed within the scheme. We do not know the extent to which that may have wider applicability outside of those cases that were encompassed in that appeal decision.
Colm Burke (Cork North Central, Fine Gael)
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What kind of numbers are we talking about if we are-----
Colm Burke (Cork North Central, Fine Gael)
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Are we talking about 1,000? Are we talking about 2,000?
Mr. Robert Watt:
Up to that period, for each of the years that would have been encompassed by this, between 2,500 and 3,000 people would have been availing of services. Whether they are exactly comparable to the services that were encompassed in those cases to which I referred, I do not know. It is therefore pure speculation at this stage to give-----
Colm Burke (Cork North Central, Fine Gael)
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My understanding is that, in fact, in respect of the nursing home refund scheme, which was set up in 2006, people who were in mental health facilities were refunded. Am I correct about that?
Mr. Robert Watt:
Circa 500 people were availing of various disability services. I think there are four places involved: three in Dublin and one in Limerick. They were ultimately encompassed within the scheme and the people affected received refunds under the 2006 redress scheme.
Colm Burke (Cork North Central, Fine Gael)
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My understanding is that, under the 2006 redress scheme, anyone who was in a mental health facility was refunded as well.
Colm Burke (Cork North Central, Fine Gael)
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My understanding is that, for instance, in Cork there certainly were cases where people were in a mental health facility and it was a public hospital or a public mental health facility.
Colm Burke (Cork North Central, Fine Gael)
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They were refunded, as I understand it.
Colm Burke (Cork North Central, Fine Gael)
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Is Mr. Watt saying he will have a full and detailed report back to us within three months on the other-----
Mr. Robert Watt:
I wrote to the HSE yesterday and we are committed to working with the HSE. I have to go back and establish the number of people who would have been in those institutions and whether the services they were in receipt of could be encompassed within the broad definition of inpatient services set out by the Act and, therefore, could be encompassed by the redress scheme. That work is ongoing, so we do not have an answer to the Deputy's question at this stage.
Colm Burke (Cork North Central, Fine Gael)
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Finally, as regards the issue of elderly care and health facilities, a lot of this started in 1976 with the Maud McInerney case. Then we had an Ombudsman's report and we ended up with litigation and a redress scheme. In the same way as we have a Ombudsman for Children, is there not now a need for an ombudsman or a commissioner for elderly care or that whole area? My understanding is that there has been one in Wales since 2006, I think, and one in Northern Ireland since 2011. If there were someone like that, some of the issues that have tended to carry on and drag on might come to the fore at a far earlier stage and, as a result, we might get good decisions earlier.
Mr. Robert Watt:
That is obviously a policy matter. The Ombudsman encompasses the whole issue of nursing homes. HIQA is very much involved, as the Deputy will know, in the regulation of the sector. The Government is committed to a commission on care to look at a whole variety of issues around the quality of care, the nature of care, the sustainability of the fair deal and so on. I am sure the commission on care could consider that issue.
Colm Burke (Cork North Central, Fine Gael)
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I am saying we should have a specific commissioner for older people. Mr. Watt referred to a figure of about €1 billion in respect of nursing home care. My understanding is that such an office would cost about €2 million, which is a very small amount of money in real terms. At the same time, we would have someone focusing on this particular area, which I think would be beneficial.
David Cullinane (Waterford, Sinn Fein)
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I welcome Mr. Watt. I want to speak about the issue of those people with disabilities in section 38 and section 39 organisations. I have discussed this privately with Mr. Watt as well and with the Minister for Health. The issue here is voluntary contributions that were paid in these homes and whether at the time they were recovered with charges under the Act. At the time when the repayment scheme was put in place, those people were told those payments were not recoverable. That is the first point. Is that the case?
David Cullinane (Waterford, Sinn Fein)
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Then, while we do not know exactly how many, we know that several hundred people applied anyway to the scheme. They were refused and then they appealed and the HSE or the Department's appeals officer upheld their assertion that, in fact, the voluntary contributions on their behalf were recoverable. That was the appeals officer's decision.
David Cullinane (Waterford, Sinn Fein)
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Yes, but the Department at that point was taking three cases to the High Court on a point of law and then got advice from senior counsel that, in fact, we could lose those cases. The 512 cases in which people appealed related to three homes, St. Michael's, Cheeverstown House and the Daughters of Charity. They were paid, so €20 million was made available for those 512 applicants who appealed the decision and they got paid. Is that correct?
David Cullinane (Waterford, Sinn Fein)
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What Mr. Watt was saying earlier then is that there may well be analogous residents as well who may be covered, that he does not know the full extent of that, and that a trawl is being done by the Department. In the 2011 memo that went to four senior Ministers at the time, it is very clear. There is no ambiguity in the memo that was sent. It states: “In addition, there are other institutions similar to St. Michael's, Cheeverstown and the Daughters of Charity with residents who would have similar potential claims." The memo does not say: "may have" or "might have", it says "would have". The Department knew that there were people who had similar potential claims and did nothing. In fact, it goes on to say that there was a potential liability of €360 million.
David Cullinane (Waterford, Sinn Fein)
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Mr. Watt is Secretary General in the Department of Health and he was in the Department of Public Expenditure and Reform before he came to the Department of Health. I am sure he would agree that when memos are being prepared for Government and figures like €360 million are put into these, those figures do not fall from the sky but are based on something. They are obviously based on an analysis and that analysis must be somewhere there. Mr. Watt says that he does not have the information, which at the very least that information should be there. On what premise was that €360 million based? Is Mr. Watt aware of any documentation he has seen which would indicate where that €360 million figure would have come from?
David Cullinane (Waterford, Sinn Fein)
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Mr. Watt said that the information was not there.
David Cullinane (Waterford, Sinn Fein)
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But the Department did not-----
David Cullinane (Waterford, Sinn Fein)
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With respect to Mr. Watt, the Department at the time did not agree with the basis of the claims that were made by St. Michael's, Cheeverstown or the Daughters of Charity but eventually did. The memo here is quite clear, which to read it again, states: "In addition, there are other institutions similar to St. Michael's, Cheeverstown and the Daughters of Charity with residents who would have similar potential claims."
At that point, in 2011, the Department was very clear that there were similar claims. Would Mr. Watt accept that and that that is what the wording is saying?
David Cullinane (Waterford, Sinn Fein)
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I am not sure that that is what the memo was referring to here, which is why we need to get the information from-----
Mr. Robert Watt:
My colleagues have shown me the basis of the estimate and the memo talks about a very rough estimate, which I believe the Deputy has in front of him. It is talked about as a “very rough estimate” which is a very accurate description of the estimate. It goes back to periods that we do not believe are encompassed by the cases and it applies uplifting for the consumer price index, CPI, and makes other assumptions. I will be happy to come back-----
David Cullinane (Waterford, Sinn Fein)
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It would be incredible for us to have to accept that only those three homes which lodged an appeal had their appeals upheld, that they hit the jackpot, just happened to be the people who were entitled and that they got paid.
The thinking being presented here is that anybody else who was analogous, who did not appeal or apply, were people who were thought of as not entitled to this redress. It strikes me that it just does not work like that. Would Mr. Watt accept that there is a very strong possibility that there are people in similar circumstances who would have qualified?
Mr. Robert Watt:
I believe there is a possibility and I do not know if it is a strong possibility. This issue was well flagged and discussed within the legal community who were involved in taking these cases. There were other cases taken outside of these institutions which went to the High Court and were not successful. If one thinks about this for a second, as I understand it - Deputy Colm Burke knows more about this than I do - there were a number of firms involved here who were looking at this issue, taking cases and exploring the possibility of taking cases. It is hard to see, if one stands back and looks at this relatively fresh now, how there would be thousands of potential cases out there which were missed during that period, given that a number of firms had quite an active litigation strategy. Perhaps, it was just that time elapsed and it is more complex-----
David Cullinane (Waterford, Sinn Fein)
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It is actually not that complex at all, Mr. Watt.
David Cullinane (Waterford, Sinn Fein)
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I will bring him back to what happened. It is complex in respect of trying to resolve it now, but was not complex at the time, which is my point. I ask Mr. Watt to bear with me, please?
David Cullinane (Waterford, Sinn Fein)
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There were people in similar institutions to these three homes, and it was the accepted HSE view and determination at the time that the repayment scheme was put in place, who did not qualify. These people did not make any applications, and if they did, they certainly did not appeal. The only three homes which appealed are the three homes I have mentioned. There were 512 applicants in those homes who were paid €20 million. That is fine. There was an estimate that there could be, and are, other institutions similar to those three homes with a potential liability of €360 million. The issue here is that there was no effort at that point to establish whether or not there was any liability. Is that not the case? There was no proactive effort by the Department at that time to establish whether or not others would have qualified for redress.
Again, in the memorandum, which I must repeat, it states: “who would have similar potential claims”. These words are in a memo. It is very strong in its statement regarding those “who would have similar potential claims”. No effort was made, however, to establish who those individuals were, or if it was, it was certainly kept secret and such individuals were certainly not notified of this.
David Cullinane (Waterford, Sinn Fein)
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It was not contested because the appeals officer’s decision was upheld.
Mr. Robert Watt:
There were many other appeals made - I believe 5,000 in number - to the appeals officer in respect of cases. Many of those appeals, 7,000, went to the High Court and many of those cases were lost. There was enormous discussion among the legal community, with people taking cases and challenging the State in respect of many of these matters.
David Cullinane (Waterford, Sinn Fein)
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There may well be other issues. I am not talking about them but I am talking specifically-----
David Cullinane (Waterford, Sinn Fein)
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I did not write the 2011 memo.
David Cullinane (Waterford, Sinn Fein)
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It was written by the Department. Mr. Watt was a Secretary General in the Department where the Minister was furnished with a copy of this memo, incidentally. Leaving that aside-----
David Cullinane (Waterford, Sinn Fein)
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The memo was not written by me and was very clear that there were residents who would have similar potential claims. There was an estimate, which Mr. Watt says is probably too high. It is reasonable for any person to look at this to say that there were certainly analogous residents would have had a similar claim, but that there was no proactive work done by the Department.
Rather, if we are going to go over and back on this and not resolve it-----
David Cullinane (Waterford, Sinn Fein)
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Does Mr. Watt accept that we need to resolve it and to establish whether or not there were people who would have qualified had they applied under the scheme or had appealed, that their appeal would have been upheld but, because they did not, they simply accepted the judgment of the HSE, which was that they did not qualify. They, therefore, did not make any application. It would be unfair if that did happen.
Mr. Watt is saying that a trawl is being done. Is that trawl being done to identify a cohort of residents would have a similar claim to those 512 residents in those three houses?
David Cullinane (Waterford, Sinn Fein)
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If there are, what will then happen?
David Cullinane (Waterford, Sinn Fein)
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There is a strong possibility that that is the case.
David Cullinane (Waterford, Sinn Fein)
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The memo was not conjecture. It says “would”, does it not?
David Cullinane (Waterford, Sinn Fein)
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Does Mr. Watt understand the point we are making-----
David Cullinane (Waterford, Sinn Fein)
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------in that there is a potential unfairness here which may need to be resolved. That trawl needs to be done and if there are people who, through no fault of their own may have ended up in that situation. These were people with disabilities who probably would not have had, or their families would not have had, the means to challenge this and just accepted what the HSE said. It would be very unfair that those homes which appealed on behalf of their members who, fair play to them, got their money and reward, but that those who did not are left behind, if there are such people. I suspect that there are and it certainly says in the memo that there were. I would hope that the Department would look at this from that perspective and not from a penny-pinching one in trying to avoid paying them. I hope that the Department will find out who they are.
David Cullinane (Waterford, Sinn Fein)
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Mr. Watt has a responsibility to do that, I would say.
Seán Crowe (Dublin South West, Sinn Fein)
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We will move on and I call Deputy Shortall now, please.
Róisín Shortall (Dublin North West, Social Democrats)
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I thank the witnesses for their presentation.
At the outset I want to ask about the repayment scheme. I must say that we are at something of a disadvantage here in not having some of the relevant documents. I understood that we had requested those, for example, the memos.
It would also be helpful if we had some detail on the public documentation associated with the repayment scheme in 2004. It is hard to know why the final outcome of the repayment scheme was so low given the fact there was illegal overcharging going back over so many years. It would be helpful to know what the constraints were on people making claims under that scheme. If there is documentation on that it would be helpful.
Róisín Shortall (Dublin North West, Social Democrats)
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Documentation associated with the repayment scheme in the period from 2004 to 2006.
Róisín Shortall (Dublin North West, Social Democrats)
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I am saying this now, 18 years after the event.
Seán Crowe (Dublin South West, Sinn Fein)
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Maybe I can help. We did ask as a committee for additional information. We requested that Mr. Watt's Department provide the committee with key documents outlining the Department's approach to the handling of the nursing home charges concerned, legal actions relating to them including particular memoranda, including one from 2011, and briefing documents for the Ministers and Ministers of State. We requested that for the meeting but, unfortunately, we did not get them.
Seán Crowe (Dublin South West, Sinn Fein)
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We did not-----
Seán Crowe (Dublin South West, Sinn Fein)
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Mr. Watt could ask.
Seán Crowe (Dublin South West, Sinn Fein)
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Those were some of the documents. Were they sent late last night?
Róisín Shortall (Dublin North West, Social Democrats)
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Okay. I am sorry; time is moving on.
Róisín Shortall (Dublin North West, Social Democrats)
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I will point out that this is not the first time this kind of thing has happened, where we received the requested documentation late the night before. I have not seen that today. It does put us at a disadvantage. It is not terribly considerate in terms of dealing with-----
Róisín Shortall (Dublin North West, Social Democrats)
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I am sorry; I do not want to have any further conversation in it.
Mr. Robert Watt:
-----has to have regard to the challenges we are under in looking back over events that happened 30 or 40 years ago and trying to put something together in the time period. With all due respect, the Deputy is being very unfair. I spent three and a half hours last week before the Committee of Public Accounts answering questions. We provided voluminous documentation. The Comptroller and Auditor General produced a report. There is an awful lot out there.
Róisín Shortall (Dublin North West, Social Democrats)
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I am sorry; time is moving on. I will make the point that this is the Joint Committee on Health; it is not the Committee of Public Accounts. We requested particular documentation and Mr. Watt did not provide all of that documentation. Moreover, the pieces he did provide were provided very late in the day.
Róisín Shortall (Dublin North West, Social Democrats)
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I am not saying that. I am saying that we have not seen that documentation yet, which puts us at a disadvantage. It is an unfair way of treating the committee.
Seán Crowe (Dublin South West, Sinn Fein)
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There is a briefing document but there are no contemporaneous notes from that period attached to it.
I accept that Mr. Watt has given it to other committees-----
Róisín Shortall (Dublin North West, Social Democrats)
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The Committee of Public Accounts.
Seán Crowe (Dublin South West, Sinn Fein)
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-----and we accept the challenges. However, we did ask Mr. Watt to try to be fulsome for the meeting and provide as much information as possible. The more information we have, the better position we would be in for asking questions and engaging with Mr. Watt. It is a huge area. I accept that perhaps we were too broad in the documentation we were looking for. Maybe we should have been looking for more specific documentation. We did request it, however.
Róisín Shortall (Dublin North West, Social Democrats)
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It was not given to this committee, that is the point.
Róisín Shortall (Dublin North West, Social Democrats)
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Okay, I have lost a lot of time; I am sure the Chairman will account for that. My point is that first of all, we do not know how far back residents or families of residents were allowed to claim in the 2004 repayment scheme. We do know, however, that the estimate at the time was approximately €1 billion. It subsequently transpired that only approximately half of that was repaid. Does Mr. Watt have an explanation? Is he aware of why the estimate was so out of line with what was subsequently claimed?
Mr. Robert Watt:
These charges go back to the 1970s. People were able to seek redress for charges that were levied from the 1970s. An estimate of €1 billion was the number that was set out in that regard. That was an estimate of the number of claims that would come forward and an estimate of the legal costs and actual settlements. Therefore, there were a number of different factors. There were at least three different factors. As I understand it, a calculation of the charges was made and then a calculation of the State support for those charges. Then, there was an uplift with regard to the consumer price index, CPI, and whether interest and penalties applied in this case. There were, therefore, many different moving parts. The significant element is that there was an estimate on the number of people who came forward. While a large number, almost 30,000 people, did come forward, 22,500 were ultimately in receipt of payments under the scheme. Then, €480 million was the total cost.
Róisín Shortall (Dublin North West, Social Democrats)
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I am making the point that the estimate seems very far out. Either the estimate was wrong or there was not sufficient awareness among people who were entitled to claim. It would be helpful then to have the documentation. I want to go back to that issue of-----
Mr. Robert Watt:
I will just make a point about people coming forward, which is something we discussed last week at the other committee. There was a large public campaign at the time. There were advertisements in the newspapers. There was a very significant campaign. The Government said if people fall into the categories, there was a now a scheme and if they were owed money, they should please come forward. As I understand it, there was a quite a significant campaign.
Róisín Shortall (Dublin North West, Social Democrats)
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Okay. I want to come back to that issue of the disability facilities and maintenance contributions. On the surface, it looks like those maintenance contributions are in a different category to the nursing home charges. As it turned out, we know that some residents in disability facilities did avail of the repayment scheme. I want to ask Mr. Watt about the statements he made today. He said, "Appeals to this decision were taken, and the independent appeals officer determined that contributions made by residents of a number of institutions should be repaid under the provisions of the scheme." He went on to say, "The rationale for this decision was ... the specific contract that these organisations had with the relevant health board for inpatient services." Was that a specific distinction in a contract that was given by particular health boards or was it a particular contract that was given to particular organisations?
Mr. Robert Watt:
These are parts of the questions we are trying to establish in the review at which we are looking. It is exactly like the Deputy asked about whether it was unique to the Eastern Health Board. We now know there is one other case in the mid-west, so it was not unique to the Eastern Health Board. The question is about whether it was in respect of all those services procured by the Eastern Health Board in respect of many of those analogous institutions in the area. There are two questions. Was that contract for other health boards? Did it relate to a subset of institutions or did it encompass all of them? Those are the questions with which we are grappling.
Róisín Shortall (Dublin North West, Social Democrats)
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Given that Mr. Watt made that statement, he must have some knowledge behind it, or does he?
Róisín Shortall (Dublin North West, Social Democrats)
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Okay, but what has Mr. Watt found out that enabled him to make that statement this morning?
Róisín Shortall (Dublin North West, Social Democrats)
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What was the specific contract then?
Róisín Shortall (Dublin North West, Social Democrats)
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Has Mr. Watt documentation supporting that?
Róisín Shortall (Dublin North West, Social Democrats)
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Mr. Watt is saying there were particular contracts that required people to qualify under the repayment scheme.
Róisín Shortall (Dublin North West, Social Democrats)
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Has he checked that those contracts were particular to those three or four organisations?
Róisín Shortall (Dublin North West, Social Democrats)
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Okay. Mr. Watt went on to say in the next paragraph of his statement, although the statement he read out is somewhat different to the one he provided to us, that:
The Department ... and the HSE originally appealed these decisions to the High Court, but the appeal was subsequently withdrawn ... The decision to withdraw this appeal did not change the position of the Department [and the HSE] that voluntary contributions did not come within the definition.
Why then was the decision taken to withdraw the appeals?
Róisín Shortall (Dublin North West, Social Democrats)
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Mr. Watt was categorical in his opening statement that the "decision to withdraw this appeal did not change the position of the Department [and the HSE] that voluntary contributions did not come within the definition".
Róisín Shortall (Dublin North West, Social Democrats)
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Why then were the appeals withdrawn?
Róisín Shortall (Dublin North West, Social Democrats)
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Then it may have changed the position of the Department and the HSE.
Róisín Shortall (Dublin North West, Social Democrats)
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The Department and HSE appeals to the High Court were withdrawn and Mr. Watt is saying that, notwithstanding that, the position of the Department and HSE remained the same.
Mr. Robert Watt:
Yes. That is because the cases were settled so the State did not concede the legal point that these were covered within the Act. I guess that is the point, which I think the Attorney General sets out in his report. The State did not ultimately admit to or concede the legal point on the basis on which the cases were made, though it subsequently decided not to appeal to the High Court and to allow them to be settled.
Róisín Shortall (Dublin North West, Social Democrats)
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How is this whole issue being dealt with in the Department at the moment? Who is working on it?
Róisín Shortall (Dublin North West, Social Democrats)
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The entire issue of the disability facilities and the potential of a substantial number of additional people being entitled to claim under the repayments scheme.
Róisín Shortall (Dublin North West, Social Democrats)
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It is conjecture based on a Government memo.
Róisín Shortall (Dublin North West, Social Democrats)
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Mr. Watt has not provided us with any ground for stating he does not believe the number is accurate. Why does he not believe it is accurate?
Mr. Robert Watt:
Because it was an estimate of the numbers of people in these facilities for a period we do not believe is encompassed by the legal case. It goes back to the early 1970s. We do not believe this particular case is encompassed in that time period. Because of the estimates used of the charges levied and the way in which the deflator was applied, we do not see how it could get to that number.
Róisín Shortall (Dublin North West, Social Democrats)
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Mr. Watt does not see it at the moment. That is the point. It is hard to know how he can make such definitive statements.
Róisín Shortall (Dublin North West, Social Democrats)
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Mr. Watt did that without providing evidence to the committee on the reasons for making those definitive statements.
Mr. Robert Watt:
I have outlined in response to previous questions that a number of cases were taken for other facilities, which were unsuccessful both at the appeals and High Court. There is a reason those cases were not successful and a reason others did not come forward, notwithstanding the publicity around the cases and the large number of legal firms active in identifying potential cases. That is the basis for it.
Róisín Shortall (Dublin North West, Social Democrats)
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Clearly we have to come back to this issue at a point when Mr. Watt has more information on it.
Creeping privatisation of the health service has been ongoing over the past 20 years or so and it has accelerated in recent times. Is this not at the root of why we find ourselves in this situation? If the State does not provide adequate public facilities, people had no choice but to try to get private facilities. Where does it lead us ultimately in respect of access to healthcare facilities if there is an increasing number of privatised services? That is combined with the lack of legal entitlement to healthcare in this country. We talk about eligibility rather than legal entitlement. Does Mr. Watt accept the issue of legal entitlement has to be addressed? Sláintecare calls for that to happen. Is there work going on in the Department on legislating for a legal entitlement to healthcare?
Róisín Shortall (Dublin North West, Social Democrats)
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Has the Department done anything on that aspect of Sláintecare to date?
Róisín Shortall (Dublin North West, Social Democrats)
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Okay. The Special Committee on Covid-19 Response recommended a review be undertaken into the privatisation of Ireland’s nursing homes and to ascertain its impact. Has any work been done on that?
Róisín Shortall (Dublin North West, Social Democrats)
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Yes, the fact that 80% of our nursing homes are now private.
Róisín Shortall (Dublin North West, Social Democrats)
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We can go into that. It is about profiteering in care. A properly functioning public health service provides the full range of public healthcare.
Róisín Shortall (Dublin North West, Social Democrats)
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I will not go down that rabbit hole at the moment. I am quoting a recommendation from the Special Committee on Covid-19 Response for a review to be undertaken into the impact of the privatisation of Ireland’s nursing homes. Is Mr. Watt saying nothing has been done about that recommendation?
Róisín Shortall (Dublin North West, Social Democrats)
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The Special Committee on Covid-19 Response.
Róisín Shortall (Dublin North West, Social Democrats)
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I will not go into the rationale now.
Róisín Shortall (Dublin North West, Social Democrats)
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There is not time to do that, as Mr. Watt well knows. This was a substantial report done by an expert group into the response to Covid. A key recommendation, recommendation 2, was to review the privatisation of care in this country. The Sage organisation, for example, is also calling for a review of care profiteering, which is going on across the board in nursing home care and home care. Is Mr. Watt saying no work has been done on this?
Mr. Robert Watt:
Significant work has been done on the issue of nursing homes and the regulation of them. We are establishing a commission of care to look at the future of the sector. On the balance between public and private, various reports have been done and recommendations made arising from the Covid experience.
Róisín Shortall (Dublin North West, Social Democrats)
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Mr. Watt may not have been in the Department but I would have expected senior colleagues in the Department to be aware of this report and the recommendations.
Róisín Shortall (Dublin North West, Social Democrats)
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Well, I have asked Mr. Watt. This is pertinent to the discussion we are having.
Róisín Shortall (Dublin North West, Social Democrats)
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It is relevant to the fact that we should learn lessons from that.
In 2020, then Taoiseach, Leo Varadkar, said we needed to review the question of care of older people, that we needed new models of care and that Covid showed-----
Róisín Shortall (Dublin North West, Social Democrats)
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-----the privatised for-profit model is not the optimum one.
Seán Kyne (Fine Gael)
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I thank Mr. Watt and the team for attending. It has to be acknowledged we have a much fairer system of health and nursing home care than in the past. The dialogue needs to move towards more in-home care than nursing homes, but there are situations, no matter how good a family is, where there is a need for nursing home care. The Attorney General’s briefing published a couple of weeks ago referred in point 114 to private care, stating: “Although a number of the private cases have been settled, most of these cases have not been settled.” Point 129 states: “it is clear ... that the Department acted prudently in settling a small number of claims involving care in private nursing homes rather than risking an adverse outcome in a test case, which could have provoked many more historic cases, all for the account of the taxpayer.” Presumably those cases were settled on a no-fault, non-disclosure basis.
Seán Kyne (Fine Gael)
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Regarding the money paid out, I know a number of law firms took cases. Were they people or the descendants of people with the means to take such cases? Many people, perhaps, did not have the means and were, therefore, most likely not to have got recompense.
Seán Kyne (Fine Gael)
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It is a fair assumption that those who have the means get justice very often and those who do not, do not. The Minister has to come back within three months, I think, with where they are going. I take it from Mr. Watt's commentary in the opening statement and what I have heard that he will not suggest to the Minister that he provide a package of funding to recompense private cases.
Seán Kyne (Fine Gael)
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Is it highly unlikely that Mr. Watt would be supportive of that?
Seán Kyne (Fine Gael)
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At this stage, Mr. Watt does not see himself proposing to the Minister that there be any reopening of those cases?
Seán Kyne (Fine Gael)
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Getting back to the point, the Department settled a number of cases where the individuals had the means to take those cases but, at the same time, Mr. Watt still does not think it is appropriate to look at all the other cases where individuals may not have had the means?
Seán Kyne (Fine Gael)
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We have seen commentary about people who have had to sell their parents' homes to fund nursing home care. How does Mr. Watt feel about those cases on a human level?
Mr. Robert Watt:
This was debated in the Oireachtas many times during the 2000s. Everybody accepts the view that the position before 2009 was unfair, with which I agree. What is colloquially known as the fair deal is a very impressive policy that gets the balance correct between people who have means to contribute with the State making up the balance. Irrespective of whether you are private or public, you are treated the same. That is an extremely fair policy and was a very robust response to the reality of care needs some of our elder citizens will have and the ability or otherwise of families to meet those needs. The policy position as set out, which my colleagues work with every day, is fair. That is not to suggest it does not require tweaking or changing of course as circumstances evolve but it is a fair response to those challenges back-----.
Seán Kyne (Fine Gael)
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It does not solve the retrospective cases and the issues people faced at the time, including having to sell a home to fund care. That is the point I am making. In the 2005 Supreme Court decision on the Health (Amendment) (No. 2) Bill 2004, it held that the retrospective provisions of the Bills were nullified, which nullified the rights of persons with full eligibility to recover moneys for charges unlawfully imposed in respect of certain inpatient services, and were repugnant to the Constitution and that the rights to recover moneys for the charges thus imposed was a property right. That is the Supreme Court saying it was not possible to retrospectively deny people their rights. Is that an admission that the charges were wrong and, therefore, people who were taking cases had rights?
Mr. Robert Watt:
No. It was an admission that the legal basis of the charges was wrong and the instrument used was wrong. The Government, the Oireachtas and everybody were very clear about the policy intent throughout that period that people should make charges. That was not the issue. The issue was that the reliance on the 1996 regulations wasultra viresin respect of the actions of health boards regarding charges. It was the wrong legal instrument, not that the policy or the interpretation of the policy was wrong, but the Government at the time or the officials at the time used the incorrect legal instrument. That was the decision reached.
Seán Kyne (Fine Gael)
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The Supreme Court stated that the attempt by the Government to rectify that via the Act in 2004 was unconstitutional.
Seán Kyne (Fine Gael)
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Mr. Watt mentioned the fair deal. On the future and moving towards more home care, home living and caring for persons and loved ones in the home, where does he see the Department moving towards? Both private and public nursing homes cannot get staff. That may change in the future with the ups and down of the economy and employment. Where is the Department moving and what vision does Mr. Watt have for caring for loved ones in the home?
Mr. Robert Watt:
The policy is for people to stay at home or close to their home and be treated there and cared for. That is what we are trying to do with home supports. As the Senator correctly identified, there is a significant issue in finding staff for home supports. The Government allocated significant money and an increase in the hours for home support this year again. The challenge for the Department is to identify resources and people who can go in and provide those supports and to improve the overall level of care. It is linked with the Sláintecare initiatives regarding enhanced community care, providing supports through chronic disease management and older person intervention teams to help older people stay out of hospital, manage chronic diseases and conditions to keep them out of hospital and nursing homes and for them to stay at home. That is the policy objective. As the Senator knows, given our demography, with the number of people aged over 75 going up 4% or 5% a year, this is an enormous societal challenge. It is going to involve significant resources, the commitment of Exchequer resources and a new approach to manpower and forecast planning. It is an enormous issue for us around funding, regulation, the balance between different options and different types of living for older citizens. This is a monumental societal challenge we are now facing.
Seán Kyne (Fine Gael)
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A number of years ago, the issue seemed to be funding to get the hours. Now, it seems to be getting the staff to fulfil those hours. From talking to loved ones who are lucky enough to have hours and staff, staff are arriving in certain cases at 11.30 a.m. for the first call, which is too late for the personal care required by older people. A huge focus is needed on ensuring, however it is achieved, that more staff are recruited within the system to provide the important dignity and personal care, which is a requirement for our elderly, in their own homes.
Gino Kenny (Dublin Mid West, People Before Profit Alliance)
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We all understand this is a complicated issue and there is an historical aspect to it that goes back decades. We would not be here if it was not for Shane Corr, the whistleblower. We should commend Mr. Corr on the material he has put in the public realm. My question relates to the IrishMail on Sundayarticle and liabilities for the State. Mr. Corr stated that families were short-changed for decades by the Government and liabilities could run into billions of euro. In fact, it could run to €12 billion. I asked the Taoiseach a number of weeks about liabilities that are outstanding. He said they could run to just over €1 billion. Are there any outstanding liabilities or court cases concerning families prior to 2005 or post-2005?
Gino Kenny (Dublin Mid West, People Before Profit Alliance)
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How many cases?
There is a small number of cases.
Gino Kenny (Dublin Mid West, People Before Profit Alliance)
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Could Mr. Watt give me a number?
Gino Kenny (Dublin Mid West, People Before Profit Alliance)
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Can Mr. Watt give me a number?
Mr. Robert Watt:
I think there are about 100, but there has been no movement on these cases for a long time. No statement of claims has been issued in respect of many of them. There has been no movement on these cases for a significant time. I guess they are live but not active, if that makes sense.
Gino Kenny (Dublin Mid West, People Before Profit Alliance)
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Whereabouts are they in the process?
Gino Kenny (Dublin Mid West, People Before Profit Alliance)
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Okay. Could Mr. Watt give a bit more detail than that?
Gino Kenny (Dublin Mid West, People Before Profit Alliance)
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These people are taking the State to court in relation to-----
Gino Kenny (Dublin Mid West, People Before Profit Alliance)
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Right. Can Mr. Watt give a breakdown of the composition of these claims? What compensation are these claimants looking for?
Gino Kenny (Dublin Mid West, People Before Profit Alliance)
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Okay.
Gino Kenny (Dublin Mid West, People Before Profit Alliance)
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Is it pre-2005?
Gino Kenny (Dublin Mid West, People Before Profit Alliance)
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Are there any cases post-2005?
Gino Kenny (Dublin Mid West, People Before Profit Alliance)
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These cases have been ongoing for a considerable time.
Gino Kenny (Dublin Mid West, People Before Profit Alliance)
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How come-----
Gino Kenny (Dublin Mid West, People Before Profit Alliance)
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How come these cases are ongoing? These are obviously legacy issues that have gone on for decades, but how come these cases have not been settled?
Gino Kenny (Dublin Mid West, People Before Profit Alliance)
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Right.
Gino Kenny (Dublin Mid West, People Before Profit Alliance)
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These are contested in a court of law.
Gino Kenny (Dublin Mid West, People Before Profit Alliance)
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Could they be settled without going to court?
Gino Kenny (Dublin Mid West, People Before Profit Alliance)
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There are precedents for this happening before.
Gino Kenny (Dublin Mid West, People Before Profit Alliance)
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As I said, these cases go back decades.
Gino Kenny (Dublin Mid West, People Before Profit Alliance)
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Can Mr. Watt divulge what compensation the families are looking for?
Gino Kenny (Dublin Mid West, People Before Profit Alliance)
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If the Taoiseach is saying it is €1 billion, then this is an enormous amount of money. Even if we are talking about the outstanding 100 cases, then we are talking about hundreds of thousands of euro.
Gino Kenny (Dublin Mid West, People Before Profit Alliance)
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He did say €1 billion.
Gino Kenny (Dublin Mid West, People Before Profit Alliance)
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He said that possible liabilities amounted to €1 billion.
Gino Kenny (Dublin Mid West, People Before Profit Alliance)
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There are 100 outstanding cases.
Gino Kenny (Dublin Mid West, People Before Profit Alliance)
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Right. Are these individuals?
Gino Kenny (Dublin Mid West, People Before Profit Alliance)
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Okay. Some of the individuals we are talking about who were in nursing homes may be deceased now.
Gino Kenny (Dublin Mid West, People Before Profit Alliance)
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In fact, I would say the majority of them are probably deceased.
Gino Kenny (Dublin Mid West, People Before Profit Alliance)
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These are then families and relatives and so forth.
Gino Kenny (Dublin Mid West, People Before Profit Alliance)
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Okay. I thank Mr. Watt.
Seán Crowe (Dublin South West, Sinn Fein)
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I thank the Deputy. I call Senator Martin Conway.
Martin Conway (Fine Gael)
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To follow on from Deputy Gino Kenny's questions, can Mr. Watt tell us how much has been paid out in these settlements? I refer to the cases that have been settled so far, in terms of people in private nursing homes who did not get the care they sought in public nursing homes. Of those cases that have been settled, what has been the total bill?
Martin Conway (Fine Gael)
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No, hang on. I am not-----
Martin Conway (Fine Gael)
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No, hang on. I am not looking for the individual specific details.
Martin Conway (Fine Gael)
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I am looking for the global figure that has been paid out in total in terms of compensating people in respect of the cases that have been settled.
Martin Conway (Fine Gael)
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Surely Mr. Watt can give me that figure.
Martin Conway (Fine Gael)
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Mr. Watt, though, is also accountable.
Martin Conway (Fine Gael)
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Okay, but what I am looking for is simple. I am looking for the total figure paid out in settlements. I am not looking for any individual cases. Regarding the 100 cases that have been settled, I just want the global figure paid out.
Martin Conway (Fine Gael)
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Mr. Watt does not have that figure today.
Martin Conway (Fine Gael)
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I beg Mr. Watt's pardon.
Martin Conway (Fine Gael)
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Why would Mr. Watt not be allowed to give it? This is taxpayers' money that has been paid. I am not looking for any specific case. I am just looking for the global figure.
Mr. Robert Watt:
The issue of the disclosure of the amounts in relation to this matter has been dealt with extensively by decisions that were made by the Comptroller and Auditor General in 2010 and 2011 on how this would be accounted for in the accounts of the Department of Health. I will be very happy to come back to set out for the committee the position in this regard. The Comptroller and Auditor General reached a decision with the Accounting Officer at the time, which was agreed by the Committee of Public Accounts and the Government in terms of how this would be accounted for. It is set out. I will send a note to the Chair about this matter.
Seán Crowe (Dublin South West, Sinn Fein)
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Is Mr. Watt concerned that he might give an inaccurate figure? Is this why-----
Martin Conway (Fine Gael)
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Why then can Mr. Watt not give us the figure?
Martin Conway (Fine Gael)
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What is the reason? What is the rationale for not giving the figure?
Martin Conway (Fine Gael)
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Yes, but what I am-----
Martin Conway (Fine Gael)
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-----looking for is what has been paid out to date in cases that have been settled. I am not talking about anything current. If a case has been settled, then it is history. It is not an ongoing legal engagement, so the case is history. Surely to God Mr. Watt can give us the figure for historical cases that have been settled.
Seán Crowe (Dublin South West, Sinn Fein)
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We do know that €20 million was paid out to the three institutions that took a case.
Martin Conway (Fine Gael)
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Now, that is for the disability issue and that is separate. What I am looking for is information concerning the nursing homes. I think it is an outrage that Mr. Watt is not prepared to give us that figure here at this committee today. So be it, he is not. If Mr. Watt had been Secretary General back then, would he have agreed to settle these cases? I ask this because if we were to extend the logic that he does not believe anything was done, essentially, and there is not great liability existing, does Mr. Watt think it was the right strategy to settle these cases? If Mr. Watt were to go back in time and this matter was on his desk, would he have settled these cases or would he have gone to court and made the case for the State? What would his logic have been?
Martin Conway (Fine Gael)
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The cases in terms of the people who were in private nursing homes.
Martin Conway (Fine Gael)
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Mr. Watt cannot give us an indication as to whether he believes it was the correct policy.
Martin Conway (Fine Gael)
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Have any cases been settled recently, in the time since Mr. Watt took over as Secretary General of the Department?
Martin Conway (Fine Gael)
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Moving onto people with intellectual disabilities and so on, does Mr. Watt believe proper advocacy structures are in place for people with intellectual disabilities within institutions? Is there a proper structure and proper advocacy to ensure their interests are protected?
Martin Conway (Fine Gael)
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Just reflecting on the engagement by Deputy Cullinane and others, there are many more people who were possibly entitled to compensation but did not get it.
That is possibly because there was not a proper advocacy structure there. Are the structures that are in place at the moment adequate? Does the HSE need to review that and put a more formalised structure in place as opposed to a mishmash of groups coming in, as well-intentioned as they are? Does Mr. Watt think there should be a proper formalised structure?
Martin Conway (Fine Gael)
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Mr. Watt thinks the structures there are adequate.
Mr. Robert Watt:
I cannot give a view on whether they are adequate or not. I think everything can be improved upon. We can certainly reflect on whether there is a need for a different approach and come back to the Senator. I do not know. There are patient advocacy groups and services in place which are funded by the State and which facilitate that. They have been expanded in recent years. We can certainly come back as to whether more can be done there.
Seán Crowe (Dublin South West, Sinn Fein)
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I just want to clarify the situation and maybe walk through it slowly for myself and others who do not have their heads around this whole issue. It is a complex issue. We all know of the cohorts we are talking about. Am I right in saying we are talking about people who in some cases are elderly and in some cases people with mental health issues and people with disabilities, some of which are profound?
Seán Crowe (Dublin South West, Sinn Fein)
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Regarding declarations of interest, I have a niece who was in one of the homes that settled. Both of her parents have died since so I do not know if she is one of the ones who got the €40,000 historical payment at the time. She is a young woman now but she was a child back then. Her family did everything for her. They tried all sorts of crazy madcap schemes to try to help that child and trying to get some sort of stimulation or some sort of response. They spent whatever spare money they had on that child. We all know families in that situation. If someone is elderly, like a parent, people will give that additional money so their mother can get her hair or her nails done and all those things. If there is additional money that is where it goes. Am I right in saying that? We all know those cases. Am I right in saying that at the heart of today's discussion is the fact that we potentially took money off people who did not know it? Is that the heart of what we are saying?
Mr. Robert Watt:
To go back to the Chair's opening comment about the complexity, it depends specifically what is being referring to. There were certainly charges levied on people unlawfully. That is not to say the policy intent was not clear. There is no doubt about the policy intent but charges were levied on people unlawfully. There are issues around the various payments where there was a payment to individuals who were in the community when they went into an institutional setting or facility and the State met their needs in a different way. From 1983 to 1996, those payments were withdrawn. It is now established, as we all know, that that was unlawful. There are many different aspects to it. The policy intent is not being questioned here. There is no question about that. It is about the legal instrument that was used. In 1976, if the Government of the day had decided to introduce primary legislation in respect of these matters, this would not have happened. That was the issue. There is a lot of confusion about this. The policy intent is well understood by everybody but it is a matter of the legal instrument used and the failure to act on that and change it when there were legal doubts about it. That is the question.
Seán Crowe (Dublin South West, Sinn Fein)
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This is not a court of law or anything but we need to work out ourselves if this was fair or just. Clearly if the cohorts we are talking about were overcharged, that was unjust, particularly because they are probably the most vulnerable people we could think of in society.
Mr. Robert Watt:
One could debate whether it was unjust or not. Looking back on the debates over this historically, this policy was never really challenged from a political perspective. The issue has arisen because there was not a lawful basis for the policy. That is a different thing. I accept-----
David Cullinane (Waterford, Sinn Fein)
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You did comment on it.
Mr. Robert Watt:
Yes. Obviously if the administrative system does something but does not in retrospect have the legal effect of doing that, that is a problem. That is what led to this. There is a big difference here. There is also the fact, which the Chair will be better aware of than me, that times are very different in so many respects in terms of the nature of the State, the role of the State, the obligations of the State and the capacity of the State. We are talking about the 1970s and 1980s here. It is a very different world. I do not disagree with the Chair's comments.
Seán Crowe (Dublin South West, Sinn Fein)
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The HSE advised residents in long-term care, and some of their advocates, that they were not eligible under the health repayment scheme. That was the signal that was sent out. Some institutions, like Cheeverstown, St. Michael's House, the Sisters of Charity and another one in Limerick that I am not aware of, took the case. They must have been under extreme pressure taking the case because there would have been ramifications if they lost. It might have had long-term implications for the institution and impact on possible funding down the line. They should be commended. The State folded on that. There is potentially €360 million here. Given that 500 people got €20 million, if we work it out I think we can come up with a figure of about 9,000. Mr. Watt has said that not all those 9,000 would necessarily apply for that. We hope that within three months' time we will have a better picture.
To go back to the issue of whether it was fair or just, I still think about those families. They may have gotten €40,000 but no one has talked about the solicitors and legal people and so on. It sounds like a huge amount of money but if you break that down over the number of years people were paying this money, it is probably a handful of euro per day. It sounds a huge amount and I know it is State money and money was hard to come by in those days, and still is for many families. The people who are going to get that in the majority of cases will not be going off and spending it on holidays or anything else. It will be reinvested in the care and support of those families. That is the main point I want to make. It was not an unjust payment. Clearly the State accepted that they were entitled to it. The big question is about the ones we left behind, the ones who were recommended not to take the case and did not take it. They are the ones I presume we are really concerned about. I accept what Mr. Watt is saying about the fact that he cannot make a decision and that it would be for politicians and so on. If we go back to being fair and just, there should be some sort of redress for those people who were given that advice, which was clearly wrong. Am I right? I am not leading Mr. Watt; I am just trying to walk through the system.
Seán Crowe (Dublin South West, Sinn Fein)
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Okay. I will just have to bring in members again. Deputy Shortall will be followed by Deputy Cullinane.
Róisín Shortall (Dublin North West, Social Democrats)
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I thank the Chair. I am sorry but I have to leave shortly.
I would like some further detail on the figures. Let us separate the two issues of nursing home charges and disability facilities. The Department said that with nursing homes, there are circa100 cases that are active and not at discovery yet. Is that correct?
Róisín Shortall (Dublin North West, Social Democrats)
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"That are out there".
Róisín Shortall (Dublin North West, Social Democrats)
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Okay.
Róisín Shortall (Dublin North West, Social Democrats)
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Okay, so circa100 cases are out there at the moment.
Róisín Shortall (Dublin North West, Social Democrats)
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Okay, but Mr. Watt is saying circa100.
Róisín Shortall (Dublin North West, Social Democrats)
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Sure, but Mr. Watt is still saying it is roughly 100.
Róisín Shortall (Dublin North West, Social Democrats)
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Yes, I appreciate that.
Róisín Shortall (Dublin North West, Social Democrats)
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I just want to get some handle on the quantum. Is it circa100?
Róisín Shortall (Dublin North West, Social Democrats)
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Is it circa200?
Róisín Shortall (Dublin North West, Social Democrats)
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Just give us some rough idea; a ball-park figure.
Róisín Shortall (Dublin North West, Social Democrats)
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Under the nursing home payments, approximately how many cases are out there at the moment?
Róisín Shortall (Dublin North West, Social Democrats)
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No, in terms of nursing home charges.
Róisín Shortall (Dublin North West, Social Democrats)
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I know that, I am just asking what the quantum is.
Róisín Shortall (Dublin North West, Social Democrats)
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Mr. Watt is saying it is circa200 now.
Róisín Shortall (Dublin North West, Social Democrats)
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Okay. How many of those are active at the moment?
Róisín Shortall (Dublin North West, Social Democrats)
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Mr. Watt said nothing has happened since-----
Róisín Shortall (Dublin North West, Social Democrats)
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Okay, but are there any that are active at the moment?
Róisín Shortall (Dublin North West, Social Democrats)
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Okay. How many cases were settled between the closing of the repayment scheme, in 2006 and 2017?
Róisín Shortall (Dublin North West, Social Democrats)
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In relation to nursing homes generally - public and private.
Róisín Shortall (Dublin North West, Social Democrats)
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From the time of the closing of the scheme up to 2017 how many were settled?
Róisín Shortall (Dublin North West, Social Democrats)
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There are another 200-----
Róisín Shortall (Dublin North West, Social Democrats)
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So about 200.
Róisín Shortall (Dublin North West, Social Democrats)
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Mr. Watt said about 200 were settled after the scheme closed.
Róisín Shortall (Dublin North West, Social Democrats)
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Okay.
On the disability facilities, how many cases were settled under the repayment scheme?
Róisín Shortall (Dublin North West, Social Democrats)
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It was 500 in disability facilities.
Mr. Robert Watt:
Circa500 claims were subsequently paid in respect of disability services under the redress scheme.
Róisín Shortall (Dublin North West, Social Democrats)
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Okay, 500 paid. How many other cases in respect of disability facilities are out there at the moment? How many are in the system, as Mr. Watt says?
Róisín Shortall (Dublin North West, Social Democrats)
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Have we a rough figure on that?
Róisín Shortall (Dublin North West, Social Democrats)
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What is the general approach in the management of those cases? We have seen and have heard from Mr. Corr previously that there was a particular strategy pursued by the Department in managing other disability cases, say, where a family is taking a case in respect of their child's lack of access to disability services. We heard there was fairly intrusive management, and active management, of those cases. Does the same apply with the cases we are talking about here, that is, the few hundred cases that are in the system?
Róisín Shortall (Dublin North West, Social Democrats)
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No, I think he was talking about those historical cases. I am talking about cases that are out there at the moment, with respect to both the nursing home payments and the payments for disability services. What is the management strategy for those cases currently?
Róisín Shortall (Dublin North West, Social Democrats)
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Is there ongoing oversight of and contact with families involved, as was claimed in relation to the disability services?
Róisín Shortall (Dublin North West, Social Democrats)
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Is there intelligence-gathering, let us say?
Róisín Shortall (Dublin North West, Social Democrats)
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Okay. Does Mr. Watt expect any cases to get to the point of discovery within the coming year?
Róisín Shortall (Dublin North West, Social Democrats)
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Does anybody who is dealing with this matter know?
Róisín Shortall (Dublin North West, Social Democrats)
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What was that?
Róisín Shortall (Dublin North West, Social Democrats)
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What is the current strategy then, for the management of these cases? Is it the same as previously? Is it the advice to Government that once a case gets to discovery, the State should settle?
Róisín Shortall (Dublin North West, Social Democrats)
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Yes, and is that the current position?
Róisín Shortall (Dublin North West, Social Democrats)
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Okay. I thank the Chair.
Seán Crowe (Dublin South West, Sinn Fein)
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Senator Hoey may come in now if she wishes.
Annie Hoey (Labour)
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I thank the officials for coming in. I do not have an enormous amount of questions so I will not be too long. Mr. Watt was not involved at the time of this and that is a very obvious statement to make. The Attorney General, in his report, found the State's strategy to limit its exposure to claims arising from nursing home charges was "sound, accurate and appropriate". Does Mr. Watt think the strategy was sound, accurate and appropriate? He is separate from it and was not involved at the time. Does he think it is rightful reflection of what was done?
Annie Hoey (Labour)
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Mr. Watt does not have a view himself.
Annie Hoey (Labour)
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That is fair enough. I have been reading through the Attorney General's report. Mr. Watt may again say he has nothing to add on this, but if the State had such a robust defence I cannot quite marry the two together. Maybe I am repeating things that have been said, that is, that the only reason there were all the settlements was there was not actually as robust a defence as we have been led to believe. In Mr. Watt's opinion, why did the State not do it? Is it just because it was protecting the public purse or protecting the State from opening itself up to other cases? Obviously, once it goes to court then parties open themselves up to other things.
Many of those I have spoken to are struggling to understand the State's sharp defence of saying it was right in what it was doing yet not letting cases reach court. There is not quite a full understanding of it.
Mr. Robert Watt:
The Attorney General set out the Government's legal strategy in his report. I have nothing to add to what he said. He made it clear that there was a robust defence in each of these cases and that there ultimately were compromises, those being settlements. The State was looking for a test case that would allow for a view to be reached on the legal principles. A suitable one did not arise. Ultimately, the matter fell away because the cases stopped coming. If they had proceeded at pace and in higher volumes, the State might have taken a different approach and a test case would have been identified and gone to court to test whether there was a basis that could be upheld in court for these cases.
Annie Hoey (Labour)
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Are there active legal strategies in the Department similar to this one to effectively keep cases out of court and consistently settle outside court?
Annie Hoey (Labour)
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Mr. Watt is not aware of any-----
Annie Hoey (Labour)
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-----but there could be.
Seán Crowe (Dublin South West, Sinn Fein)
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I call Deputy Cullinane, followed by Deputies Burke and Healy-Rae.
David Cullinane (Waterford, Sinn Fein)
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I wish to deal with the issue of people in private nursing homes. I am reading from the 2011 memo. We asked the Department to submit to the committee the memos that were given to Ministers in 2011 and 2016 as well as the notes from 2017. The Secretary General stated that releasing those documents was a matter for the Government, which it is. Can we write to the Minister and ask that they be furnished to us? As the Secretary General knows, we have the documents anyway, or at least extracts from them that were published in a national newspaper, but it would be better if we had the documents from the Department so that we could be sure we have the right ones.
Regarding those in private nursing homes, my understanding is that the memo submitted to the Government in 2011 was actually submitted to the Minister in Mr. Watt's then Department, namely, the Department of Public Expenditure and Reform. According to it, the legal advice was that an entitlement was subject to resource availability and that the claim for damages was not the appropriate legal remedy. It went on to say that, given the scale of the potential exposure, a multifaceted legal strategy had been developed by the previous Minister and Attorneys General and had been "developed and refined over time at a series of meetings at both official and ministerial level". It also stated that one of the defences was that the legal cases were based on the contention that any person with a medical card was entitled to call upon the State to provide a public nursing home bed and if that was not available, he or she was entitled to enter any nursing home of his or her choice, regardless of cost, and charge it to the State. According to the memo, the State had a number of defences to this litigation.
The memo refers to the claim that people were entitled to enter any nursing home of their choice, but does Mr. Watt accept that it was not a choice for many families? Medical card holders were in private nursing homes. Is it not the case that they were facilitated by the health boards in entering those, given that there was no public capacity?
David Cullinane (Waterford, Sinn Fein)
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The Attorney General's memo stated that the health boards had a dual strategy of public nursing homes in the first instance and, if those were not available, private ones.
David Cullinane (Waterford, Sinn Fein)
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Mr. Watt will agree that it was like a lottery system. If a medical card holder happened to get a public nursing home place, he or she was compensated, but if he or she was one of the unlucky medical card holders who had sought public nursing home places but, because none was available, ended up in private nursing homes, there was no compensation for him or her, through no fault of his or her own.
David Cullinane (Waterford, Sinn Fein)
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Now Mr. Watt has got to the heart of the issue. It was unfair. That is our point.
David Cullinane (Waterford, Sinn Fein)
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I certainly did not get any sense that this was unfair from the Attorney General's report. In fact, the reverse was the case and it was described as sound.
David Cullinane (Waterford, Sinn Fein)
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He was referring to the legal strategy.
David Cullinane (Waterford, Sinn Fein)
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I accept that.
David Cullinane (Waterford, Sinn Fein)
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I am not trying to put words in Mr. Watt's mouth. We are in agreement that, at the time, there were those with medical card entitlements who had an option of public nursing home places if they could find any and, if they could not, private nursing home places. However, some people had no choice but to go into private nursing homes and to be supported by the health boards because there were not enough public nursing homes. They then had no entitlement under the compensation scheme, given the legal defence set out in the memo.
Puzzlingly, the memo also stated: "The strategy is that in general, these proceedings should be fully defended and that a strong case should be identified which can then be fought as a test case." Is it not correct to say that, ultimately, no test case went to court?
David Cullinane (Waterford, Sinn Fein)
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The assertion that proceedings should be fully defended is also questionable, given that most of these cases were settled when they reached the point of discovery. Does the statement that they should be "fully defended" stack up in light of how cases were settled before or at a point of discovery? This does not suggest "fully defended" to me. "Fully defended" means going to court and letting it decide.
David Cullinane (Waterford, Sinn Fein)
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There was a good article in last week's Sunday Independenton the Conroy case. The Conroy family went public. It was an important case. The family stated that they had the means to go all the way to the discovery phase when other families did not have that opportunity. In 2017, an email was sent from the Department to the Chief State Solicitor's officer about the case. It reads:
... we had no realistic option other than to consent to a discovery order in the terms arising from the Shallow/McKenzie discovery ruling(s) and that there is no change in the Department's policy position – informed by legal advices to date from the Office of the Attorney General [and confirmed that the recent high-level strategy review on long-stay litigation with the Attorney General] and Ministers Harris & McEntee – that discovery should be avoided in all long-stay cases, including the Conroy case.
It did not say "in some long-stay cases", but "in all long-stay cases, including the Conroy case." It went on to say that the "reality of making discovery or running a hearing in one of these cases continues to be too risky to be seriously contemplated, and, whether we like it or not, settling the Conroy case – if necessary on terms we may find somewhat unpalatable – appears to be the only way forward". It strikes me that the legal strategy was, as stated earlier in the memo, that the matter needed to be kept confidential and that, where people took cases, there was a red alert and the State needed to settle "in all long-stay cases". Whatever the Department or the Government was fearful of where discovery was concerned, the strategy was to not let a case reach discovery or, whatever else was done, not to let it go to court and to instead settle on terms that were unpalatable. In this case, I believe the settlement was for €100,000. That is the figure I saw quoted in the newspaper, although it may or may not be accurate. Regardless, it was over and above the number of offers that were originally made to the family.
In cases like this, the people involved were in private nursing homes and had the means to take cases. The State dragged them through the courts up to the point of discovery, then settled and the families got whatever they got. We spoke about unfairness – all of the other families who did not have this opportunity got nothing.
These are people who had no means to take court cases. One can talk about legal strategies, but perhaps Mr. Watt will recall that there was a legal strategy in the State relating to Brigid McCole to force her through the courts up until the very end. It does not mean that the legal strategy was the right course of action in defending citizens' rights. I believe that people would look back now and say that maybe this was not the best strategy. A legal defence can be mounted to anything.
As I said earlier, the memo said that all of these cases should be fully defended but then there is this email exchange that indicates the State does not fully defend them, that it is a red alert when it gets to discovery and that then it is a case of settle, settle, settle, and settle on terms that are unpalatable. This shows to me that the Government and the Department were not really too sure about their case here and were afraid of this going to court. They were afraid of a test case and they never found one they felt they could win.
My point to Mr. Watt is that all the people who did not take a case, similar to the other issue around disabilities, were left high and dry. We are talking here about people who had no other choice but to go into a private nursing home. In many cases it was not that they did it by choice. Does Mr. Watt agree, not just about the unfairness of it, but also that the contention from this email exchange, and from all of the memos we have, that it was the Department's logic that it would settle up to the point of discovery? It has never been answered as to why officials were fearful of discovery. Does Mr. Watt have any idea what was so fearful of discovery?
David Cullinane (Waterford, Sinn Fein)
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Why settle cases then if they were so strong? Why settle all of these cases at the point where they got to discovery? I am reading again what it says: "Discovery should be avoided in all cases ... The reality of making discovery or running a hearing in one of these cases continues to be too risky to be seriously contemplated." Mr. Watt is saying there was a really strong and robust legal case and legal defence, yet the Department was saying, by God, let us not get to discovery because it would be too risky and run the risk of loss. I imagine that was the risk. It does not really stack up.
David Cullinane (Waterford, Sinn Fein)
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The Department is saying that it had robust legal defence, but there is no robust legal defence. It is saying that these are "too risky" and that at all costs settle before it gets to discovery, and the Department did settle on unpalatable terms. This means that some people would be paid more to ensure that others would be paid nothing. This seems to me to be the logic.
David Cullinane (Waterford, Sinn Fein)
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It is my interpretation. In any event, I believe this is another issue. I am pleased that at least the Secretary General accepted the principle of unfairness for those who had medical cards and who through no fault of their own ended up in private nursing homes. The State is putting up a defence but I gave other examples-----
David Cullinane (Waterford, Sinn Fein)
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We will go back over the record and look at it. It will be clear what Mr. Watt did or did not say. That is my view of what was said. If Mr. Watt wants to correct-----
David Cullinane (Waterford, Sinn Fein)
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Okay.
Colm Burke (Cork North Central, Fine Gael)
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The nursing home scheme was announced with a refund in 2006. The first challenge in the High Court was in December 2004 and anyone who was alive on or after 8 December 1998 could claim. Am I correct that anyone who was in a public nursing home prior to 8 December 1998 but who had died was not entitled to claim? In other words, it goes back six years from the date of the first challenge in the High Court, and also the date by which the Department announced that no further public charges could be made. Am I correct on that?
Colm Burke (Cork North Central, Fine Gael)
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December 2004. Then any claims could only be brought if the person was alive on or after the 8 December 1998.
Colm Burke (Cork North Central, Fine Gael)
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One went back six years.
Colm Burke (Cork North Central, Fine Gael)
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I presume this was the limitation that was used, which was the six years from December 2004 back to 1998 and, therefore, the family of someone who had died prior to 1998, whether it was in a public or private nursing home, could not claim if they had died prior to that date, as I understand it.
Colm Burke (Cork North Central, Fine Gael)
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I will just check one other issue, which relates to the Office of Wards of Court. At the time the Office of Wards of Court had a huge number of people in private nursing homes where ward funds were being used to pay for those private nursing homes. Is the Department aware, or has the Department looked at this issue, as to whether there was any correspondence between the Office of Wards of Court on this issue in that period?
Colm Burke (Cork North Central, Fine Gael)
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I raise this issue because it would be the appropriate office to bring a claim. The office would have had a huge number of people in nursing homes and the nursing homes were being paid out of the ward funds.
Colm Burke (Cork North Central, Fine Gael)
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That was a request I did make to the Office of Wards of Court. All we were allowed to do was issue a High Court writ and serve it, but not further progress the case. Was there any correspondence at any stage from the Office of Wards of Court? I ask that this issue be checked.
Colm Burke (Cork North Central, Fine Gael)
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No. The reason the Office of Wards of Court was written to was a large number of people in private nursing homes were wards of court and the cost of their nursing home care was being paid from the ward funds. It would, therefore, have been appropriate for that office to test whether or not the person had a medical card, whether they should be charged in the private nursing homes. This request was put into the Office of Wards of Court at the time. An application was made to the High Court. The High Court allowed the writ to be issued and served but not progressed. Was there any correspondence between the Office of Wards of Court and the Department? The job of the Office of Wards of Court is to protect the assets of the ward.
Colm Burke (Cork North Central, Fine Gael)
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I am asking if the Department would check that issue. The Office of Wards of Court was not convinced that people in private nursing homes had an entitlement to claim. This is why I am wondering if there was any correspondence. That would be interesting.
I want to move on to another issue. There is a lot of focus on a memo in 2011. Surely there were memos advising the Government in 2005 and in 2006. For instance, I earlier raised the Statute of Limitations going back six years to December 1998. There would have been memos on that. It would also be helpful for the committee if we were to get copies of the ads were placed in newspapers in 2006 about the people who were entitled to claim. There is very much a focus as if this all occurred in 2011, when in fact the issue about who could claim arose in 2005 or 2006. It would be interesting to see copies of the notifications that were published at that stage. Perhaps the committee could be furnished with those.
Colm Burke (Cork North Central, Fine Gael)
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Absolutely. Yes, in 2004 and-----
Colm Burke (Cork North Central, Fine Gael)
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I am talking about the public advertisements that were placed in newspapers in 2006.
Mr. Robert Watt:
We are very happy to be here but we need to get to a certain point where we decide what is in the public interest here. As the Deputy knows, this is a Department that is dealing with 1,000 issues today. I understand that there is a lot of interest in this. I am not really sure the extent to which there are any policy issues now for today for these conversations. I am not really sure-----
Colm Burke (Cork North Central, Fine Gael)
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The reason I raised the question is there is an implication that for some reason all of this in 2011 and from thereon was very much done underhand by the Department, whereas I am saying-----
Colm Burke (Cork North Central, Fine Gael)
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Absolutely, but what I am saying is that this was published in 2006. People were entitled to claim.
Colm Burke (Cork North Central, Fine Gael)
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That has not really been focused on. In fact, there was a full debate on it in 2005 and again in 2006. The scheme was announced and public advertisements were placed. It would be helpful for the committee, if there was a copy of one of those public advertisements made available to show the extent to which the Department at the time went to publicise the schemes.
Mr. Robert Watt:
Absolutely and this is the thing that startles me, to be honest. All of this has been in the public domain for a long time. All of what the Deputy has said has been in the public domain for a long time. None of this is new, but I absolutely agree with the Deputy. We will find the advertisement and get a copy of it.
Colm Burke (Cork North Central, Fine Gael)
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I remember being publicly criticised for bringing claims against the Department and the health boards at the time. It is amazing how the wheel has now suddenly totally turned. I was severely criticised for claiming back money for people whom the State had looked after. I remember that distinctly back from 2004 or 2005. It would be helpful to show that there was open disclosure, in the sense of the people who could claim, the limits that were there and the extent to which families were aware of what they could claim. It is also clearly advised that anyone who was alive on, or after, 8 or 9 December 1998 could claim. It would be helpful if we got a copy of those publications.
Danny Healy-Rae (Kerry, Independent)
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I thank Mr. Watt and his team for coming in here today. I thank the members for trying to get retribution and proper and fair compensation for the people who were wronged. That is very important. However, we cannot lose sight or focus of what is happening or not happening today with the care of the elderly. Private and public nursing homes are doing considerable work and operating great places for elderly people, but not all elderly people wish to go into these places. I will always remember the words of one elderly person who was close to me that said going into a nursing home or a long-stay place in a hospital was like going in to a departure lounge. The person dearly wished to stay in their own homes as long as he or she could.
I do not know whether Mr. Watt is aware that in Kerry, especially the Killarney and Castleisland areas, there is a desperate problem trying to source home help. The home help workers we have are doing Trojan work. They are limited in the amount of time that they can give, but they do great work. It is a pity. This problem has manifested since last June and it has been almost 12 months. People are allocated home help, but nobody comes. They do not have the personnel or the people to come. I am asking the Department to address the issue. It is a very serious issue in the Killarney and Castleisland areas, in particular.
One of the biggest problems for me in my role as a representative and my office is that we are inundated with calls from people who just wish to get a bit more home help. I know of one man who is only getting a half an hour per day for five days. He fell out of his bed last Saturday night. His wrist was bleeding and it was only that some neighbour, who he rang on the phone at 1 a.m. or 2 a.m., was able to help. It is terrible. This man dearly wants to stay in his home as long as he can. This is not good enough.
I remember a time when there was a flood here in Dublin. The Taoiseach of the day got wellingtons somewhere and went out to visit the people who were affected by the flooding. I am asking the Department to place the same focus and attention on these poor people. We, as a nation, are not treating properly the mothers who carried their children before they were born, reared them and did everything for them, and fathers who served their families well and did everything for them. Surely, it makes sense to keep people in their homes for as long as possible. It has to be less expensive to keep people in their own homes and to help families. Does Mr. Watt agree with me that it would be advantageous and less expensive for the HSE to deliver more care at home?
Seán Crowe (Dublin South West, Sinn Fein)
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I think you are drifting off the issue. The discussion is on nursing home charges, but I will leave it up to the Secretary General whether he wishes to respond.
Mr. Robert Watt:
I agree with the Deputy. Government policy has been to increase the level of home supports in the past number of years. Some 22.5 million hours is the number for this year. The challenge the Government faces, as the Deputy identified, is finding the staff to provide the service to people. That is a function of wider issues in the economy with regard to availability of work and wages and so on. The Minister of State, Deputy Butler, has published a very good report which sets out the challenges and a series of actions to change the conditions of employment, increasing pay, dealing with the issue of people not being paid for travel and looking at visa and regulatory issues. The Minister of State, Deputy Butler, has set out a programme and she is pushing that very hard, but I absolutely agree with the Deputy. We all accept the problem and that the policy is to keep people at home and have home supports. The challenge is to get people to provide that support.
Danny Healy-Rae (Kerry, Independent)
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All right. One part I left out there is respite for family carers. There are no respite places. I know a woman who wishes to go to Lisbon or somewhere for a family wedding. She is caring for her husband and there is no place available for her. There is only one place in Kenmare and it is similar in Killarney. They get a rota to which one has to adhere and she just cannot get respite for two weeks. It seems very tough. I am asking the Department to deal with those cases. We have to deal with today's problems as well. I have highlighted some of them.
Another problem I feel very strongly about, which has happened in the past and I do not wish to see happen again in the future, is the policy whereby family members were not allowed in to nursing homes and hospitals during the time of Covid. It was terrible that people, after all their time, died alone. What did not make any sense to me was that while the person was compos mentis, the family was not allowed to come in, but the very minute that the person went in to a coma or was going to die, all the family members were let in. How did that make sense? It made no sense. If it was to avoid spreading infection in the hospital or to other patients or staff, how was it that the family was allowed to come in at that point? I know of one person who lived for ten or 12 days in a coma. The family were all in around that person. However, the days that mattered, where they could put a spoon of something into the person's mouth or give the person a glass or water or orange, the family were not allowed in. I ask Mr. Watt to never again let that happen, because it did not make any sense. What his views are on that for the future?
Mr. Robert Watt:
Nobody wished to be in a position where that happened and I hope we will not be there again. Thankfully, Covid is in a different place but, obviously, the times to which the Deputy refers were very difficult, different and distressing for families who were facing the situation where a loved one was getting to the end of their life and they could not say goodbye to the person in the normal way.
That was one of the terrible tragedies faced by many. The people who gave that advice and made those decisions did all of that with a heavy heart. They knew very well the cost they were imposing but they did it in the interests of the public and for public health reasons. It was very difficult. I hear what the Deputy is saying and I agree with the sentiment. It was a very difficult time but, hopefully, we will not have to return to that in the future.
Danny Healy-Rae (Kerry, Independent)
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Will Mr. Watt say it was the wrong policy and that it should never happen again?
Danny Healy-Rae (Kerry, Independent)
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I thank the Chair, Mr. Watt and all the witnesses very much.
Seán Crowe (Dublin South West, Sinn Fein)
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I thank Deputy Healy-Rae for coming in.
Danny Healy-Rae (Kerry, Independent)
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I ask him to please remember my problems in Kerry with the home help.
Seán Crowe (Dublin South West, Sinn Fein)
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Maybe we can have one last question. I apologise; some members are taking part in the Private Members' debate in the Dáil at the moment. The acting CEO of the HSE said last week that the health repayment scheme was not quite closed but largely closed. Mr. Watt spoke about those outstanding cases, of which there are possibly 200. Can he explain what is meant by not quite closed? Is it because of those cases that have possibly not been activated since 2017? Is that why the scheme is not quite closed?
Seán Crowe (Dublin South West, Sinn Fein)
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I am just trying to sum up. We were talking about three different groups of people. I mentioned the elderly, people with mental health issues and people with disabilities. There could be people who are in all three of those cohorts. There are basically three groups and one got paid. The people who never applied to the scheme because they were advised not to clearly were not paid. Then there are the people who applied but a deciding officer told them they were not entitled to the repayments under the scheme and did not appeal that decision. The last group, which is the minority, are the ones who did appeal and ultimately received what was due to them. People are listening at home and saying there is huge money involved in this and they are stressing about it. I do not know if anyone wants to comment on this. That €40,000 sounds like a huge amount but it is over a number of years. These are things people were paying towards for their loved ones, like getting their hair done and all those extra things. I know of a family in one nursing home that were paying rent every month for the bed and the mattress. That was included in the additional charges. There are appalling things happening. There are others that charge if someone comes in and puts on a bit of music or something like that. These are all the additional things people are charged for. While it might seem unfair to some that there are people getting huge money out of this, it is a repayment scheme that was established by the Oireachtas, by legislators, on the basis that we felt people were entitled to this money. We are not giving out payments to people who were not entitled to them, at the end of the day. Maybe that is me on my soapbox.
I appreciate the witnesses coming in. It was really useful. We shone a light on this to some extent. It is a confusing issue. I am happy to hear the witnesses will possibly come back in three months with that report and we will maybe get a greater sense of what happened. It is largely historical but it is about fairness and justice and, hopefully, the matter will come to a conclusion soon.