Alan Shatter (Dublin South, Fine Gael)

I was interested to hear the Minister state she would have preferred to have left in place a position whereby widows and widowers who already had the medical card would be allowed to retain it under this scheme. I disagree with the legal advice the Minister was given. Based on the provisions contained in the Constitution relating to the family based on marriage there was no difficulty of a legal or constitutional nature in her so doing. I do not believe it was necessary to make provision that a widow or widower only retain a medical card for three years from the death of his or her spouse. This is a particularly unpleasant provision to include in the legislation.

If the Minister wants to consider it in age terms, albeit based on the Minister's statistical information that small numbers are involved, a widow or widower who may have retained a medical card well into his or her mid 70s, late 70s or even early 80s — it is individuals in the later years of their lives who are all likely to have some form of health difficulties — may find under this provision that having had available to them a medical card the State will take it back from them and this is a most cruel and inappropriate step.

I listened with interest to the statistics given and the references to only 5% of those who are over 70 being affected by the scheme based on the information available to the Department. I am conscious that when this scheme was introduced in 2001 the Department was wildly inaccurate in its projections as to the numbers who had a claim under it. Substantially more did so than was originally projected. I have no confidence in the information the Minister has on the numbers affected by the new proposals.

I do not accept the legal advice the Minister is relying on in claiming that she is compelled to remove the medical card from widows and widowers three years after the death of their spouse. Who would even initiate a court challenge to withdraw the medical card from widowers and widowers in such circumstances? I cannot envisage that happening. Nor can I envisage, given the provisions of Article 41 of the Constitution, any unmarried person over 70 years of age succeeding in persuading the courts that it was wrong of the State to make additional provision for widows and widowers. I do not believe the Minister's advice in this regard is correct.

There is no legal term of art that requires that provision be withdrawn within three years. If the Minister felt the need for some odd constitutional reason, which I do not accept, to provide some time limit, it could just as easily have been set at five, six or seven years. The time limit of three years seems entirely arbitrary and I do not accept that it has any particular validity with regard to any legal principle. Nevertheless, I welcome the Minister's recognition of the need to change the legislation, because I do not accept what she said earlier in this regard. Clearly, as this legislation was originally framed, people could become instantly ineligible for the medical card upon the death of a spouse. Regardless of the administrative practices of the Health Service Executive in regard to dealing with medical cards and other circumstances, it would have been required to apply this legislation. I welcome that change but I do not believe it was necessary to confine the provision to three years following the death of a spouse.

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