Alan Shatter (Dublin South, Fine Gael)

I listened with amazement to the offerings of Deputies on the Government backbenches. Deputy Aylward has just informed us how delighted he is with the provisions before the House. It brings me back to budget day when this debacle first started. In the forefront of my mind, I have Fianna Fáil and Green Party Deputies, and the two Deputies of the Progressive Democrats as they then were, standing in a round of hysterical applause to congratulate a Minister for Finance who looked somewhat out of his depth.

Since then there have been five U-turns on the medical card for the over 70s issue. This afternoon, we have had a sixth. I have already put on the record of the House my opposition to this change in the law. I believe it was right to extend the medical card to people over 70 years and that they should continue to retain it. There are substantial health benefits in not applying a medical card means test to the over 70s and substantial economic savings to the State when people get access to medical care faster than would otherwise be the case.

I do not accept the capitation payment as being a great victory secured by the Government. The truth is that it was always illogical that doctors were paid a ridiculously low sum of money for caring for those over 70 who had the medical card on a means-tested basis while then being paid an enormous sum of money for those who did not go through a means test at all. The Government simply decided to target persons over 70, causing a great deal of stress, fear and confusion throughout the community. Any Government organising its business in a coherent way would have engaged in discussions with the medical organisations to agree a new capitation payment well in advance of the budget. This would have ensured a more sane and coherent approach to the issue.

Based on promises made in 2001, and the subsequent legislation, those over 70 have a legitimate expectation that they will continue to have a right to retain the medical card. If the Government attempts to deprive people of it, based on the provisions contained in this ill-thought out Bill, particularly those in section 7, it will run into serious legal difficulty.

The Government may be engaged in a nod-and-wink routine anyway. Anyone over 70 years on 2 March next who considers themselves no longer eligible for the medical card based on the financial thresholds in the legislation is under an obligation to report their lack of eligibility to the HSE. It is important that those who have legitimate expectations are aware of the likely consequences if they do not report to the HSE. The Government might inform us if there will be groups of inspectors knocking on the doors of the homes of the over 70s seeking to get back medical cards they have been using for several years.

Failure to report ineligibility also makes one liable to prosecution under section 49 of the Health Act 1970. If a person knowingly fails to report if his or her means exceed the thresholds set down by this legislation, then he or she is at risk of being fined £50 in old money, which I reckon is €63. Will those who do not report to the HSE be prosecuted? Is the Government serious in trying to deprive anyone over 70 of their medical card or is it involved in a nod-and-wink routine? The Government must come clean about this because there is no serious penalty for someone who does not report their ineligibility. There is no reason why elderly people should be given unnecessary worry. The Government should, in fact, change its mind and not deprive anyone over 70 of a medical card.

I want to highlight one issue which the Government and the Minister for Health and Children obviously came to as an afterthought. It is referred to in this morning's The Irish Times, no doubt an inspired leak to deflect criticism from this debate. It is also an addendum to the Minister's speech.

The Bill is ill-thought out even having had a gestation period of three months. It was published only last week. It contains no provisions of any description to address the position of widows and widowers. Within our income tax legislation and our general social welfare code, there are various provisions to specifically ensure that a bereaved spouse on becoming a widow or widower is not penalised financially by the State as a consequence of their bereavement. In this respect the Bill constitutes a naked political assault on widows and widowers. Its provisions, if implemented in full, will mean that a person over 70, who through bereavement becomes a widow or widower and as a consequence has €1 in excess of the €700 threshold, must inform the HSE they are no longer eligible for a medical card. It is an obligation to notify the HSE of this before the deceased spouse is buried. They may even be prosecuted under section 49 of the Health Act 1970 if they do not.

What Government would publish legislation that requires someone over 70 to report that to the HSE before they bury their spouse and, if they fail to do so, be liable to prosecution? Has any thought been given to the implication of this measure?

In an addendum to her speech, the Minister stated, "The Government has been concerned at all times in these new arrangements to ensure that a person aged 70 or over would not lose their medical card as an immediate consequence of the death of their spouse". That is untrue. The Government has not been so concerned.

I raised this issue two months ago on a Fine Gael Private Members' motion opposing the proposed changes to the medical card legislation. I warned the Government about this problem, yet it has still failed to address it in this Bill. The Minister earlier said some amendment would be introduced to ensure a person will not lose a medical card immediately upon the death of a spouse. The Irish Times today reports widowers and widows will be allowed their medical cards for three years. I do not know whether that is accurate. Is the Minister telling the House that if a 72 year old wife loses her husband, when she reaches 75 her medical card will be taken from her? What type of social policy is that? What type of health policy is it?

Even more extraordinarily, in the Government's definition of couples it has missed a crucial issue. I am not suggesting that a couple living together outside marriage, an elderly man and woman, should be discriminated against compared to the husband and wife living together. This Bill discriminates against widows and widowers in an unconstitutional, unsustainable and indefensible fashion. Under the Bill, a 74 or 75 year old bereaved widow or widower can be deprived of a medical card in circumstances in which the income is less than the income of a 74 or 75 year old man or woman cohabiting with someone else. We have a constitutional provision that seeks to protect the family based on marriage and, as a minimum, directs this House not to discriminate against an individual as a consequence of being married. The manner in which the Government has dealt with widows and widowers in the legislation as published, and the minimal change the Minister is now proposing, which will result in a widow or widower being deprived of the medical card, is unconstitutional because preferential treatment is given to an unmarried individual over 70 cohabiting with someone else. It is contrary to Article 41 of the Constitution. If it were challenged it would not constitutionally withstand the challenge.

If the President was to refer the Bill under Article 26 to ask the Supreme Court to address that issue, the Supreme Court would have no choice but to find this provision unconstitutional. If the Minister will not allow all persons over 70 to retain the medical card and if she insists on applying a form of means test, at the very least where persons over 70 have already been given a medical card, she should not deprive them of it as a consequence of being widowed or becoming a widower. She should not deprive them of it as a consequence of a bereavement and she should not introduce a measure that gives them some licence to retain the medical card for a short period and take it from them afterwards. If she does, that will not withstand constitutional challenge.

See this speech in context