Alan Shatter (Dublin South, Fine Gael)

We have started to deal with the substance of the sections of the Bill. It is a strange irony that one of the Government's main political acts in the second last week before the House adjourns for Christmas is to copperfasten the removal of medical cards from people over the age of 70. We should encourage those Deputies on the Government side of the House who are absent to participate in this debate. I have not seen any Green Party Deputy in the Chamber since the Committee Stage debate commenced. I presume Deputies Sargent, Ryan and Gormley are prioritising their obsession with growing Brussels sprouts for Christmas above the well-being of people who rely on medical cards.

This important section deals with the issue of eligibility. It links section 3 with section 4, which sets out the cut-off points that will apply. In supporting the approach being taken by Fine Gael and the Labour Party, which is to oppose the principle of the Bill and this section in particular, I wish to take a particular stand against the proposal, which is to come into effect on 2 March 2009, to deprive a number of those who currently qualify for the medical card from availing of this facility.

I would like the Minister, Deputy Harney, to answer some questions about the implementation of this section. What action does the HSE propose to take, following the enactment of the Bill, to ensure that the medical cards of those who are currently eligible for the card, but will be deemed ineligible from 2 March 2009, will be cancelled? Is it intended to send a cohort of HSE employees to knock on the doors of the elderly? Will the Government rely purely and simply on the self-assessment mechanism? The Minister might answer those questions.

In response to Deputy Reilly, the Minister should clarify whether the worst that can happen to existing medical card holders who do not inform the HSE after 2 March 2009 that they are no longer eligible for the medical card is that they might be prosecuted and fined €63 under the Health Act 1970. Does the Government intend to introduce a new penalty to deal with such people? Will the Government take civil action, to reclaim money spent on medicines and medical attention from doctors and consultants, against elderly people who inadvertently fail to communicate their ineligibility after 2 March next? What action will the Government take if such ineligibility is discovered a year or two later?

I listened carefully to what the Minister said about the advice of the Attorney General. I have expressed my views on the constitutionality of this proposal, as it affects married people who have been widowed. I ask the Minister to consider a very good point that was made by Deputy Barrett. Can she clarify the issue?

I do not believe the way this Bill affects widows and widowers is the only potentially unconstitutional aspect of it. The manner in which it treats spouses may also give rise to constitutional difficulties. Under this legislation, if a married couple has a collective gross income of €1,400 or less, both partners will get the medical card. Apparently it does not matter whether the partners are residing together or are separated — they will get the medical cards anyway.

Can the Minister clarify the position in the case of a separated or deserted wife who has a gross weekly income of €600 but whose husband, who lives elsewhere, has a weekly income of €1,000? Such a married couple — in this example, both of the separated people in question are over the age of 70 — would have a total gross weekly income of €1,600. If a woman in such circumstances wants to claim eligibility to the medical card on the basis of the principles of this Bill, her income will have to be amalgamated with that of her husband, even though they are living apart. In the case I have mentioned, their combined gross weekly income of €1,600 would exceed the limit of €1,400. That gives rise to constitutional problems. If the woman in question claims a medical card in the belief that the joint income of her and her husband is not more than €1,400, will there be a legal obligation on her husband to co-operate with the Department by furnishing information about his income?

What happens to a married couple, both of whom are over the age of 70, if one of them applies for a divorce and such a decree is granted after they have spent some time living apart? Special provisions are in place within our social welfare system to protect the social welfare rights of divorced people. That issue gave rise to a great deal of controversy when it was not dealt with adequately during the 1986 divorce referendum campaign. It had to be properly addressed in advance of the 1995 referendum. If both parties in a married couple qualified for the medical card before they got divorced because their joint income was under the €1,400 limit, what happens after the divorce if one of them exceeds the individual income limit of €700? Will such a person be deprived of his or her medical card on foot of the granting of a divorce? What will apply here? Has any thought been given to the application of this legislation for separated or divorced spouses?

In that context, it seems that unmarried people who are living together as a couple will get preferential treatment. If a man aged 71 is living with his 70 year old girlfriend, and they have a combined income of less than €1,400, both of them will qualify for the medical card. If the couple in question separates, the people in question will be treated individually. The man will be entitled to a medical card if his income is no more than €700. In such circumstances, the State would have absolutely no interest in the income of his former partner. Under the provisions of the Bill, before a determination can be made on whether a person over the age of 70 qualifies for a medical card, the State is required to show an obsessive interest in the income of that person's former partner if they were married. In effect, preferential treatment may be given to unmarried people in a series of circumstances, which I could further extrapolate for the benefit of the Minister.

I wager that the Attorney General's office has not given any thought to this issue. It is much more straightforward than the case of widows and widowers. If this legislation had been thought out properly, it would include special provisions dealing with the circumstances of separated married people and divorced married people. It would consider how a divorce decree would affect someone who was entitled to a medical card, on the basis of certain criteria, before he or she got divorced.

That aspect has not been addressed in the legislation. It is a gaping hole that has very serious constitutional implications. I still believe the issue of the widow and widower also has a serious implication. I bet that issue has not been considered. This is why we should not be taking Committee and Report Stages today. Taking Report Stage next week would give the Minister an opportunity to come back on that issue. I urge the Minister before we get to 6.30 p.m. to consider postponing Report Stage until next week to examine further those particular issues which are not adequately addressed nor have even been considered in the context of this legislation.

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