James Reilly (Dublin North, Fine Gael)

The purpose of this motion is to highlight unacceptable interference with the role of the Ombudsman. As the motion states, the Ombudsman encountered unprecedented opposition and a lack of co-operation from the Department of Health and Children and the Health Service Executive, HSE, in the course of conducting her investigation into the right to nursing home care in Ireland, an issue that concerns many families in this country.

I will first refer to some aspects of the Ombudsman's report and then discuss the first paragraph of the amendment proposed by the Minister. In response to this report the Department put forward a multiplicity of charges against the Ombudsman. They were that the Ombudsman exceeded her jurisdiction in undertaking the investigation; that she failed to abide by fair procedures, particularly with regard to the provision of a draft version of the investigation report; that she displayed prejudice and objective bias in the course of the investigation, which is a very serious charge; that she displayed arrogance in purporting to interpret the law, although when it comes to displays of arrogance this Government has been more guilty of it than any other body of which I am aware; and that the Ombudsman purported to deny the State bodies concerned the right to have litigation determined by the courts. In effect, the Department and the HSE are saying that the Ombudsman undertook this investigation in bad faith.

The Ombudsman states that her motivation to produce this report was to highlight the very significant difficulties faced over several decades by families seeking to make arrangements for long-term nursing home care for a family member; to represent, in many instances through their own words, the distress and upset, including financial, of people who complained to the Office of the Ombudsman over the years about nursing home care; to highlight the inadequacy and tardiness of the State's responses to these problems; to raise the issue of whether, and, if so, how, people adversely affected should have some recognition of having been failed by the State; and to raise wider questions of governance prompted by the practices highlighted in this report.

The Ombudsman said she is satisfied that the investigation is within the jurisdiction conferred on her office by the Oireachtas and that the requirement to provide relevant material served on the HSE and the Department constitutes a reasonable exercise of the statutory powers conferred on the Ombudsman. She stated that the challenge by the Department and the HSE to the Ombudsman's jurisdiction in this case is the most serious mounted against the Office of the Ombudsman since its establishment in 1984.

Fine Gael believes this challenge raises important issues both about the independent role of the Ombudsman and how she should discharge that role. From time to time there might be conflict between the Ombudsman and the HSE, but the Minister or any Department or agency of the State must not be allowed to frustrate statutory investigations. I hope the Minister will comment on this. Knowing what one's entitlements from the State are and being able to count on being given one's entitlements is a basic right, a right that is more important in the case of vulnerable groups such as older people. As the Ombudsman pointed out, at the heart of the report is the question of whether there is an enforceable entitlement to be provided with long-stay nursing home care by the health board, now the HSE. The Department and HSE contend there is no such right, while the Ombudsman believes there is such a right. The resolution of this disagreement lies in a careful analysis of the relevant health service law and, in particular, section 52 of the Health Act 1970.

The Ombudsman found that the health boards failed to fulfil their obligations to older people under section 52 of the Health Act 1970 and that this failure came about with the full knowledge and agreement of the Department. As a result of this failure, many older people and their families suffered significant adverse effects over several decades. The Government's health strategy, Quality and Fairness - A Health System for You, published in 2001, highlighted the need for new legislation to provide clear statutory provisions on entitlement. According to the health strategy this would involve reviewing and updating existing legislation, rationalising the framework for entitlement - not eligibility - and ensuring that eligibility arrangements would be simplified and clarified. This has still not happened.

When the HSE was dealing with the illegal nursing home charges and the establishment of the nursing homes repayment scheme, the Minister could have clarified entitlements for nursing home care. Again, this did not happen. Fine Gael believes the law should be clear and that the State agencies should implement the law as it is, rather than as they would wish it to be. The legislation should state what it means and should not be open to interpretation. If resources to meet statutory duties are not available, the legislation should be amended to reflect practice. The eligibility for health and personal social services Bill is at very early stages of drafting and we have no idea when it will be published. If it were published, we could clarify much of what is in dispute in this matter. It is absolutely certain that clear legislation pre-empts litigation.

At present, the State is defending in the High Court more than 300 legal actions taken by or on behalf of people who claim that their right to long-stay nursing home care has not been honoured. The claims of the plaintiffs are based on the contention that they have been forced to take up expensive private nursing home care because of the failure of the HSE to provide public care. The defendants are the HSE, the Minister for Health and Children, Ireland and the Attorney General, and various combinations of these. These families are seeking compensation from the State for costs. To date, none of these cases has gone to hearing and judgment in the High Court. The Ombudsman points out that this is rather surprising given that many of the cases were commenced more than five years ago.

Settlements involving some level of payment to the plaintiffs have been reached in at least a dozen of these cases but details of these settlements have not been disclosed. Perhaps the Minister could tell us why, if there were differences in these cases and what they were. As the Ombudsman points out, the situation regarding settlements is confusing in that both the Department and the HSE argue that the plaintiffs' cases are without legal merit and that the plaintiffs have no entitlement to compensation. One can only wonder why, in these circumstances, the State is paying public money to people whose claims it believes to be without foundation. Fine Gael believes the Minister must clearly point out why and on what basis these cases were settled. Does the State consider that settling individual cases by way of compensation is less costly than the case going to a hearing in court? What about the hundreds of outstanding cases?

The issues at stake here are interference with the Office of the Ombudsman and the Ombudsman's ability to perform her duties, and clarity for those who seek care from the State. It might be the Minister's contention that the Health Act 1970 contains so many qualifications that eligibility and entitlement are unclear. Will the Minister confirm media reports that her view is that while people may be entitled to eligibility, it does not mean they are entitled to services?

In 1976 the Supreme Court ruled that Maud McInerney was entitled to long-term care because under the 1970 Health Act inpatient services included such care. The confusion, however, remains. The Minister's amendment to the motion states the nursing homes support scheme "addressed the previous inequity by equalising State support for those in public, private and voluntary nursing homes" and "legally defined eligibility for long-term nursing home care". It has not, however, defined entitlement.

People's entitlements when they seek long-term care must now be addressed. If the eligibility for health and personal social services Bill was brought forward to clarify this, it would also indicate the State's responsibilities and place a cap on further exposure.

See this speech in context