Liz McManus (Wicklow, Labour)

The former Minister for Health, who now occupies a different role, Dr. Rory O'Hanlon, felt unable to come before the committee and shed some light on why the decision to deal with this issue was abandoned by the new Cabinet and why the matter was not dealt with. Had it been addressed then it would have saved the State and the taxpayer a large amount of money. It is a pity that record was not provided so we could know what happened at the time.

The next time there was a possibility of ministerial action to deal with the issue was in 2003 when it was clarified by the over 70s scheme, which altered the nature of the GMS by adding a new element to it whereby over 70s, regardless of their income, would qualify for medical cards. The repercussions from that decision were such that alarm bells began to ring. To his credit the CEO of the then South Eastern Health Board took legal advice, which highlighted a serious problem that needed to be addressed, as already identified by Mr. Boland. The group CEO meeting of 16 December 2003 dealt with the issue. Although events before, during and after that meeting should have ensured ministerial engagement in action, that did not occur. As was normal departmental practice, briefing material was e-mailed to participants on the day before the meeting. This included legal advice furnished by the South Eastern Health Board. This information was received by the then Minister for Health and Children, Deputy Martin, his two Ministers of State and his special advisers. Of these five persons only one, Deputy Tim O'Malley, read the brief. He immediately understood that if the legal advice was correct it would give rise to significant legal, operational, financial and political implications. However, the PD Minister neglected to take any further steps on the matter. This is curious because although the PDs have always lectured us about value for money, in this instance it was not an issue. The then Minister of State at the Department of Health and Children, Deputy Callely, did not read the brief but attended the group CEO meeting, and appears to have understood the significance of the issue and volunteered to brief the Minister for Health and Children, which he did not do. He said he spoke to the Taoiseach but it is unclear whether he did. Two special advisors, paid for by taxpayers, attended the meeting but did not read the legal advice before or after the meeting. Although they knew the issue was important enough to require referral to the Attorney General, they say the penny did not drop. According to former Secretary General, Mr. Michael Kelly, he briefed the Minister on the margins of that meeting as the Minister arrived late and had missed the discussion on the issue. He also stated the Minister was subsequently briefed. Deputy Martin said he was not aware the issue had been on the agenda, that it had been discussed in his absence or that the meeting had decided to take action to resolve it. He said that subsequent to that meeting his Ministers of State, advisers or his Secretary General did not raise the matter with him again. It follows that he was unaware that a letter seeking the Attorney General's advice had been drafted and lay unsent in his Department for over a year.

The issue of unlawful charges may have been serious, but was about to become a crisis. While its origins may be explained by systemic corporate default, the issue had directly engaged the most senior minds in the Minister's Department, none of whom could have failed to share Deputy Tim O'Malley's analysis that it gave rise to significant legal, operational, financial and political implications. However, Deputy Martin maintained that he was not responsible. He said: "Ministers can only bear responsibility for issues in respect of which they are properly and adequately briefed". The Minister was briefed on the issue. The only reason he was unaware of it was that he had not read the brief. That admission on his part was compounded by the failure of his junior Ministers and advisors to raise the issue with him at a later stage. It is important to retrace that. There is a fundamental issue here regarding ministerial accountability. It does not bother the Government at all. It is as if ministerial responsibility belongs somewhere out in the ether. It bothers the Opposition. Fine Gael and Labour produced a joint document, The Buck Stops Here, which deals with a range of issues on better governance, accountability, managing the State's resources better, financial planning, accountability and the definition of roles. The relevant point is in the definition of the Secretary General's responsibilities and of ministerial responsibilities and accountability. I have no doubt the former Minister for Health and Children, Deputy Martin, was culpable and should have resigned. To this day, he has gotten away with abdicating his responsibilities in a way that is damaging and does nothing for the profession of politics.

On the original issue, the kernel of the problem is that the State broke the law, mugged the elderly and frail and, when this issue came into the open, thanks to Deputy Perry, who deserves recognition as a result, the Minister, Deputy Harney, introduced legislation so she could get away with it retrospectively and claim the charges were legal all along. Everybody knew the charges had not been legal all along and that a basic untruth was being promoted by the Minister and enshrined into law. At the time, I argued she was running a great risk and that the Bill would be found to be unconstitutional. Regardless of this, she proceeded with it against advice. We all know what happened; the Supreme Court found the Bill was unconstitutional.

The rights of the elderly and the frail had to be vindicated in the Supreme Court because the Government had failed to vindicate them. The original error was compounded into an injustice and this is part of a very sad and sorry saga. It is now almost 14 months since the Supreme Court rejected the Bill as unconstitutional. Since then, this issue has been raised many times by the Opposition. Initially, there was great optimism on the part of the Minister but it seems to have declined a little since she started out in her job. I remember the days when she was very gung-ho just about everything. She was to sort out the accident and emergency crisis, knock the consultants' heads together and do the devil and all. She was to provide for the repayment of nursing home charges last autumn and she then changed the date to Christmas. I was getting a wee bit embarrassed — I do not believe one can embarrass the Government — because people were asking me when provision would be made. Legislation has now been introduced but it is unnecessarily complicated because of the approach of the Government. It states who qualifies and who does not.

The legislation also outlines a very curious system of establishing a scheme administrator and a system of administration that does not stand up to scrutiny. There is a certain ideological stance, which I presume emanates from the Minister for Health and Children because she is always arguing for it, to the effect that private equals good and public equals bad. This kind of superficial, ideologically right-wing approach informs the legislation.

Why do we need private consultants to operate a repayment scheme? It is not so long since a major issue arose regarding equality in respect of payment for married women. The State fought it tooth and nail, even at EU level, but the EU court said the State should get its act together and repay the women because they were entitled to the money. Many kitchens in Ireland were refurbished as a result of those repayments and they brought a great deal of joy to women who benefited. It was not private consultants who operated the system. Proinsias De Rossa was the then Minister for Social Welfare.

Why in God's name do we need a separate system to process the claims? The NTMA was given the job to make payments in respect of claims. It is perfectly adequate and I do not hear anybody complaining about it. Even as late as this morning, the Department of Social and Family Affairs was praised for getting its act together regarding accountability. It gives out money all the time. Therefore, what is the rationale behind the proposed system, which will add to the cost? There is no guarantee that it will be better or more efficient. I do not understand the argument.

The Department has already engaged in a tendering process in which none of 11 applicants was found sufficiently suitable. Various companies and groups of general practitioners were invited to provide out-of-hours cover in north Dublin. Last week, the HSE collapsed the tendering process, which it chose to engage in without justification. The Minister has collapsed the tendering process and we are now talking about seven companies going forward. There is no justification for the establishment of the complicated and costly structure proposed given that we have the capacity to do the job within the Civil Service. We all know the Civil Service generally provides a good, professional service and we should trust it rather than continually choosing independent consultants.

Surely the waste of €150 million on the PPARS has taught us something. Bearing in mind the consultants who were doing the technological work and those overseeing the project, the project was a total mess. It was also a cash cow and the companies involved were in a position to milk the system for all it was worth until Professor Drumm shouted "Stop".

We know €50 million was spent on the service under discussion, as indicated in the media. I can think of many projects on which this could be spent if it were not spent on private consultants. The Comptroller and Auditor General has a role in this regard. He normally has the job of auditing after money has been spent. However, could he not make assessments before money is spent to determine whether the approach adopted is the most appropriate and gives taxpayers the best bang for their buck? This question has not been answered.

I allude to an important issue raised by our legal advisers. I have a horrible feeling in the pit of my stomach that this legislation will lead us into difficulties similar to those that arose in respect of the last Bill dealing with repayments. The advice states:

Just one point about this Bill, apart from its tortuous complexity, the utter inadequacy of the Explanatory Memorandum and the failure to articulate any view as to who should manage the repayment process.

I have already made a point on management but a particular point needs to be highlighted. In this regard, the advice also states:

Section 17 contains what seem to be bizarre provisions. They enable the "scheme administrator" (which may be the HSE itself or its appointee) to report his or her opinion that a repayment has been procured by fraud or misrepresentation. If the HSE is satisfied that this is the case, the sum then becomes automatically due for repayment to it and the HSE may recover the amount through court proceedings "as a simple contract debt".

In other words, it does not have to prove the fraud or misrepresentation to the satisfaction of the court. Its own opinion as to fraud makes the sum repayable and the court proceedings are reduced to the form of proceedings for the recovery of a contract debt.

I don't believe there is precedent in any statute for a procedure which, on its ordinary interpretation, seems intended to prevent a defendant from raising in court as a defence to those proceedings the argument that the HSE's opinion is misconceived and wrong.

I don't believe the section would withstand constitutional challenge. This matter needs to be investigated urgently. It would seem to be natural justice that if the HSE has decided that somebody has defrauded or made misrepresentations, they should have normal legal rights. In this case the only point at issue would be the HSE seeking payment of a simple contract debt. I am reminded of the debate we had on the original repayment scheme in December 2004, when the Tánaiste was so gung-ho about getting it all correct. At that stage I urged her to think again. I said:

It is important that the constitutional aspects of this legislation should be scrutinised fully and that we should be given time to ensure everything is done to address this issue. There is agreement that the matter must be addressed and there is also universal agreement that services must be paid for. The Government has failed to deal with the issue of long-term care for the elderly. Reports are produced but nothing happens. Hopefully, progress will be made in the next year but, in the meantime, it is absolutely wrong of the Minister to sacrifice vulnerable and voiceless people to whom a wrong has been done.

The principles of being constitutionally sound and protecting the vulnerable are as valid in the debate we are having today as they were in December 2004. If the Bill is enacted and the Act stands up, that will be fine. My job is to raise issues, and the last time I raised issues on this point, the constitutionality of the Bill was found to be unsound. I warn that the issue may need to be addressed to ensure that the Bill will not be struck down at some future date.

It struck a chord with me when Deputy Twomey mentioned application forms. Sometimes when we pass legislation we do not think of the practicalities. People find complex application forms so intimidating that they will not pursue their rights. At a recent clinic a young couple brought me a local authority housing application form, which is a standard form throughout the country. It took me approximately half an hour to complete the form with them. I was very surprised at the questions asked on the form. One part is a voluntary statement that included questions about the applicants' religion and sexual orientation. The form is from the Equality Authority and I presume the intentions are good, but something has gone mad in the system of bureaucracy if we are asking young couples about their sexual orientation when they seek a local authority house.

The length of the form over several pages makes it extremely intimidating for people. Some people do not apply as they may be illiterate and the idea of completing forms and dealing with bureaucracy is overwhelming for them. This is a very clear-cut case — the money was robbed and should be given back. The scheme exists and we do not need much detail in it. The CSO is objecting to delivering a piece of paper regarding the electoral register because it is too complicated and difficult. However, we seem to have no difficulty when it comes to Departments asking many questions to ascertain something very simple.

I am glad the Minister of State has referred to some of the issues relating to the care of the elderly. I am not very confident that we are making much progress. We have had a number of reports and a task force is sitting. It is time we had a clear strategy for care of the elderly. The numbers will double and we have an elderly population who are entitled to the best we can offer. Since November I have been seeking information on the number of community care beds. At this morning's marathon session of the Joint Committee on Health and Children I was able to discover approximately how many community care beds we have for the elderly — I still do not know the total amount. The HSE has a strategy to introduce 1,500 new beds up to 2010, but I am not sure that will be enough. If we are to move the elderly people who could be discharged from acute hospitals into the community, I suspect we will need more than 1,500 beds, but at least it represents progress.

Yesterday the Taoiseach told the House that the problems in accident and emergency departments are down to the 411 people inappropriately placed in acute hospital beds. I imagine that most of them are elderly people. While the Taoiseach uses this as his excuse, why has he not dealt with the problem? We need high-dependency beds, community beds and public beds in the community. The excessive reliance on private nursing homes will not resolve the issue of step-down facilities. I was very heartened to hear the HSE spokesperson stating that high-dependency beds should be provided by the public sector. However, we will need to see the financial implications. We will need to see if the Tánaiste will relent somewhat in her obsession about privatisation and give a few bob to provide public beds.

There is an issue about the time this will take. On the one hand we are saying that 1 January 2008 is the cut-off point. However, many people who were owed money have already passed away and many more will do so in the next while. It is important to have a speedy response, including setting target dates for them to get their money back. If there was real commitment in the Department or if there was not so much reliance on the private sector, it would probably be easier to manage. Deputy Twomey has raised a key issue, with which I agree.

It is extraordinary that we do not know how many people will be included in the net. There is a real problem with data collection, which showed up very starkly following the introduction of medical cards for the over 70s. I have absolute regard for officials in the Department of Health and Children. They did not initiate that scheme. It was a Charlie McCreevy politically motivated scheme into which the Department of Health and Children was bounced. It provided figures, which were so inaccurate that they represented only half of the true cost. It showed up the inadequacy of data collection in the health service. In this instance we again see the problems that arise because of poor data collection, which matter needs to be addressed.

We should know how much the repayment scheme will cost. The Tánaiste has mentioned a figure of €1 billion and a figure of €500 million has been floating about. We should also know how much money will be returned to the State, which is simply a mathematical matter.

See this speech in context