Liz McManus (Wicklow, Labour)

The findings of the Supreme Court that this Bill is unconstitutional is a stinging rebuke of the Minister for Health and Children and her Government for their handling of this entire issue. It exposes a gross incompetence on the part of the Government and a callousness towards people in the care of the State because of infirmity and age. Listening to the Minister for Health and Children, Deputy Harney, make her speech just now, I can only give her full marks for brass neck and zero for humility. I remind her that there was a comprehensive report on this issue in 2001, and in early 2003 the South Eastern Health Board prepared legal advice, running to approximately 80 pages, advising the Government of the illegality of these charges, but these reports were ignored.

This Bill was rushed through the House before Christmas and it attempted to do two things, one of which was to legitimise charges for public nursing home care into the future. The other was to transform illegal charges that the Government recognised had no legal basis, going back over years, to somehow make them legal. The rejection by the Supreme Court of the Tánaiste's attempt to retrospectively validate an unlawful charging regime is particularly welcome. The decision points to the danger of rushing important legislation such as this Bill through the Dáil without giving Members, or indeed the public, the time required to fully assess its implications. No adequate time was given to consider the Bill prior to its passage through the House and each stage of the debate was guillotined, as the Government tried desperately to cover its tracks and retrospectively legalise illegal actions, whereby the State enriched itself for years by stealing from elderly and vulnerable people.

All this was avoidable. Had the Minister for Health and Children only listened less to her legal advisers and more to Members of this House, she would have saved herself much embarrassment. However, her pigheadedness has damaged her reputation as well as undermining public confidence in her ability to manage the health service. She cannot say she was not warned. On Second Stage, I proposed an amendment on behalf of the Labour Party which stated:

That Dáil Éireann, having regard to the fact that the Bill proposes a retrospective liability contrary to the constitutional rights of persons thereby affected, declines to give a Second Reading to the Bill.

Had we been listened to, the Government would have saved itself some grief. As it turned out, we were somewhat conservative. The Supreme Court went further in its judgment, which states that it is "an impermissible interference with the property rights of the residents that money that was in law properly theirs, and that they had a right to recover, was now to be placed beyond their reach". The Government's role in safeguarding the public finances, in the Supreme Court's view, could not justify it encroaching on the constitutional rights of these citizens. The principle of social justice could not be used to facilitate the Minister for Health and Children in stealing money from the elderly. Public policy considerations relating to finances were found not to be equivalent to the constitutional term of social justice.

We now have a situation where the Government has approximately €500 million which does not belong to it, but rather to individuals who are entitled to have their money back. Is it conceivable that the State will force these people to go into court to prove their case? I certainly hope not. It would be foolhardy if the Government was to compound its error by insisting on court proceedings. It would not protect the interests of the taxpayers because it would mean the taxpayer would have to pay, not alone for the elderly, but also for legal teams which would add to the cost significantly. I mentioned €500 million because this was the figure used in the court case.

A fair and speedy system must be put in place to transfer this money back to its rightful owners. I was disappointed at not hearing the Government's intention in this regard, because it is important to know what mechanisms are to be established to give back the money that was purloined. There are already significant data on the persons who are or will be in receipt of the miserly €2,000 with which the Minister tried to fob off the elderly. The normal records and accounts in public facilities will presumably inform the Minister and her Department who is owed what. This type of fieldwork is not impossible. It is as nothing compared to trying to trace who was in a residential institution in the 1930s and 1940s and how much compensation they might be owed. Some estimate of the overall figure has been published and I would like to hear whether it is the correct amount or if it should be more. It is important to know whether the court route will be forced on these people and whether the Statute of Limitations applies. I hope we get an answer to that. It seems an obvious question and I am surprised it was not in the Minister's speech.

The Supreme Court found that proposing charges for nursing homes in the future is permissible. Again, we need to know what the Government intends to do as regards that part of the judgment — this was referred to in the Minister's speech. No one is currently being charged for public nursing home care, or at least no one should be. However, the Government may not impose such charges without legislation and the House needs to have some details in that regard, because the track record is not good.

The Government made serious mistakes before as regards health legislation. When medical card cover was extended in an opportunistic political manner to the over-70 year olds, the House was told by the previous Minister for Health and Children that this initiative did not require legislation, but of course it did. That whole exercise grew to be enormously costly. When the current Minister announced the new "yellow pack" medical cards, she said legislation would not be required. As we now know she was wrong about that too, but we still do not know when that legislation will be finalised. The record is not encouraging.

There is a great deal of confusion as regards what health boards can and must provide free of charge. This confusion has been exposed yet again with the recent establishment of the Health Service Executive, which has created a certain amount of upheaval within health board structures. Regrettably, even though changes have been made at administrative level, there is still no clarification as regards what services the reorganised HSE structure is to deliver and the conditions of eligibility those seeking such services must fulfil. We have a delivery model but no clarity on what that model is to deliver. I raised this point on Committee Stage of the Bill under which the HSE was set up. Regrettably, the Minister did not accept an amendment at that time.

It is important that we refer back to one report published in 2001 by the then Ombudsman, Mr. Kevin Murphy. It was referred to recently by the current Ombudsman, Ms Emily O'Reilly, who issued a statement when the nursing home controversy arose. She stated:

My predecessor, Kevin Murphy, during his term of office, received a considerable number of complaints about the issue of nursing home charges and subventions. In 2001, he published a report of an investigation into the issues arising from these complaints, entitled Nursing Home Subventions. One of his key conclusions was that everybody resident in the State was eligible to be provided with in-patient services, where necessary, by the relevant health board. The services could be provided directly by a health board in one of its own hospitals, or in another publicly funded hospital, or by way of contracting out arrangements between a health board and a private institution. Such latter arrangements were provided for in section 26 of the Health Act 1970 and are required to be in accordance with such conditions as the Minister for Health and Children may specify.

The point made by the former Ombudsman was that people had a right and an eligibility but this is being challenged by the Department. The position it has taken is that one may be eligible but that does not mean one will get anything. That is why the HSE legislation avoided the issue of services to which people are entitled. This is an issue that will not go away. The current Ombudsman will not let it go. She went on to state:

The current controversy has focused solely on the question of patients in public institutions. It does not deal with the issue of those patients, both medical card holders and non medical card holders, who have been directed by the health boards towards private care, without in any way acknowledging their own responsibilities in the area. I remain of a similar view to my predecessors in relation to the legal situation in this regard, viz; everybody resident in the State is eligible to be provided with in-patient services, where necessary, by the relevant health board.

As she points out, the current legislation does not deal with this issue. There is an issue of eligibility but that does not mean in any way that the State cannot charge or bring forward legislation to charge. However, it does raise the issue about a person's right to access care when he or she needs it.

I reiterate the point I have been making. This is a problem of the Government's own making. It was warned that this legislation was flawed, that it was in contravention of the Constitution, yet it drove it through the House at speed. It has now been struck down by the Supreme Court. The President took advice. We should all be very grateful that she referred the matter to the Supreme Court and did not leave it to elderly people to defend their rights through the courts system. We have to look after elderly people who had money taken from them by the State. They are entitled to get it back. As their representatives, we are entitled to hear how the Minister for Health and Children is proposing to process that payback in a way that is fair, accessible and speedy. Many of the people concerned are very old, frail and vulnerable.

This whole experience shows that we have a Minister for Health and Children who does not appear to be able to manage the problems in the health service. The whole issue is not of her making but nobody would ever suggest this. Her predecessor who is sitting next to her certainly received a lot of advice on what to do but clearly did not act on it.

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