Jimmy Devins (Sligo-Leitrim, Fianna Fail)

The Supreme Court's decision in the matter of Article 26 of the Constitution and the Health (Amendment) (No. 2) Bill 2004 brings clarity to the matter of the provisions of the Bill. Clearly, the decision is a complex one that will have to be examined in detail in order to ensure that there is a clear understanding of the full implications involved which will, in turn, inform an appropriate response. In considering the background to this matter, it is important to note that what is at issue is the legal basis for the imposition of charges for those receiving inpatient services in public long-stay institutions. The principle of imposing charges is not at issue.

As has been noted by previous Governments going back over 30 years, it is fair and reasonable that all those in receipt of publicly provided, residential, long-term care should make some payment towards accommodation and daily living costs, if they can afford to do so, just as they would if they were living in the community. For example, those living in the community in receipt of the non-contributory old age pension are obliged to meet all their living costs — food, heating and other household costs — from the payment, whereas, in the case of such individuals in public nursing homes, all such requirements are provided.

This principle was most recently underlined in the health strategy entitled Quality and Fairness — a Health System for You. It supports the aim to provide as high quality a service as possible, making the most equitable use of resources and thus helping to maximise the availability of these services. It is recognised that quality care is expensive and that the bulk of the cost of providing a high standard of quality care should be borne by the Exchequer. It is estimated that the charges imposed on those in public nursing homes represent approximately 10% of the overall cost of care. It therefore represents a modest contribution towards the total cost of treatment and maintenance.

The services provided to people in long-stay care are a valuable part of the health services. It is essential that these services are protected and maintained. The charges in question are embraced by the concept of what is in effect a co-payment, which is common throughout the health service. This is based on the principle that where individuals are in a position to contribute a modest amount to the cost of their care, it is reasonable that they do so. Other examples include the in-patient overnight hospital levy. In the latter case, the charge is currently at the rate of €55 per night, subject to a maximum of €550 in any 12 consecutive months. Those availing of private or semi-private accommodation in public hospitals are also charged.

In bringing forward the Health (Amendment) (No. 2) Bill 2004, the provisions were informed by the policy that it is reasonable that charges should be made and that they should be on a sound legal basis. The Bill provided, among other matters, for a legal basis for the imposition of charges on persons to whom long-stay, inpatient services are provided, irrespective of their eligibility status. In this general area it is significant that the Supreme Court found today that:

The prospective provisions of the Bill, that is to say those provisions which require the imposition of charges for in-patient services to be provided in the future, concern matters for which the Oireachtas has power to legislate. The power to regulate and impose such charges delegated to the Minister by section 1(a) of the Bill falls within the principles and policies of the Bill and, in the view of the Court, is compatible with Article 15.2.1° of the Constitution. Having regard to the maximum level of charges and the discretionary provision concerning the imposition of charges in individual cases, the Court does not consider that those charges, either in principle or in themselves, could be considered an infringement of any constitutional right.

This will allow for the introduction of a new Bill to provide the legal basis for charges for inpatient services in long-stay institutions. It is the position currently that charges are not being imposed. Following receipt of further advice from the Office of the Attorney General on 8 December 2004, the Department of Health and Children instructed the former health boards to cease imposing any financial charges on fully eligible people in receipt of in-patient services in public long-stay care institutions, with effect from 9 December 2004. Additionally, by way of a goodwill gesture, the Government agreed to have ex-gratia payments of up to €2,000 made to those with full eligibility who have paid charges and who were alive on 9 December 2004.

Where persons have been charged anything less than €2,000, they will be refunded the amount they have paid. The Health Service Executive, which has assumed responsibility for the delivery of health and personal social services since 1 January 2005, is making the necessary arrangements with regard to the ex-gratia scheme, and payments to those currently in public long-stay care commenced some weeks ago.

Today's judgment clarifies the legal position on a situation that has obtained for nearly 30 years. The principle of those in long-term care under the auspices of the State having to pay a proportion of the cost of their care and maintenance, if they can afford to do so, has been maintained by this judgment. I commend the Tánaiste for the speed with which she has moved to bring clarity to what was, in effect, a confused situation.

I would also like to mention my constituency colleague, Deputy Perry, who, in his previous role as Chairman of the Committee of Public Accounts, first highlighted this issue. I welcome the Tánaiste's comments that she will move to speedily resolve this problem and put it on a sound legal basis as soon as she has all the relevant reports.

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