Jan O'Sullivan (Limerick East, Labour)

I commend Deputy Reilly on tabling this motion and giving us an opportunity to address what is a serious situation that arises for the people of this country. Having listened to the Minister, it is a critical issue that there is such a divergence of view between, on the one hand, the Government and Minister for Health and Children, Deputy Harney and on the other, the Office of the Ombudsman, the Ombudsman being the champion of the public with regard to administrative matters in regard to the law and the State and the various functions carried out by the State on behalf of the public.

The Minister gave a robust defence of her Department and the Government's perspective on this matter. However, the Ombudsman is not in this Chamber to defend her office and the manner in which she interpreted her duties under the 1980 Act. I believe it behoves us on the Opposition side to express in so far as we can where the Ombudsman and her office were coming from on this issue. It is a serious situation for the citizens of this country that we have this relative stand-off between Government and the Office of the Ombudsman. I do not believe this stand-off will end at the conclusion of this debate. This matter needs to be resolved in the interests of citizens. The public must have confidence that there exists an office that will stand up for their rights, one which Government will respect. There is a serious issue here in terms of Government respecting the Office of the Ombudsman.

This is against the background of other champions of the rights of the public being spanceled in various ways, including the dilution of the Freedom of Information Act, the spancelling of the Equality Authority and the abolition of the Combat Poverty Agency. We now have this disagreement with the Office of the Ombudsman and previous disagreement with it in regard to the Lost at Sea report. The public needs to be sure it has robust champions of their rights. This is a serious issue.

I would like to set out the detail in terms of where I believe the Office of the Ombudsman was coming from on this matter. The Ombudsman refers in her report to more than 1,000 complaints having been received since 1985. She is clearly responding to issues raised by members of the public with regard to the interpretation by the State of the 1970 Act, which is the legislation on which the Ombudsman primarily basis her report, as did her predecessor, in regard to peoples' rights to nursing home care. While at that time there was a different Minister and Ombudsman in office, essentially the issue was the same. The issue was not resolved.

At that time, the Government indicated it would introduce legislation in regard to eligibility. The point at issue was whether eligibility and entitlement are the same and whether eligibility grants a person entitlement. There was a commitment given that legislation would be introduced to clarify peoples' entitlements under the 1970 Act. It is, therefore, disingenuous of the Minister for Health and Children, Deputy Harney, to say that the Ombudsman was raising the rights under the fair deal legislation. What the Ombudsman was saying is that the rights of the 1970 Act supersede what is contained in the fair deal legislation and, therefore, she was essentially dealing with the 1970 Act, as was her predecessor. That is my interpretation.

The Ombudsman in her conclusions specifically states that the State, through its agencies, the health boards, HSE and the Department, has failed over many years to provide people with their legal entitlement to nursing home care. She further states that the HSE and the Department, with the support of the Government, have opposed the Ombudsman investigation and have made very serious charges against the Ombudsman's office. In effect, the charge is that the Ombudsman has acted in bad faith in its conduct of this investigation. The Ombudsman totally rejects these charges.

The Ombudsman looks at issues first raised by her predecessor in 2001 in a related investigation report to do with how we govern ourselves and concludes that the problems identified in 2001 have become more deep seated in the intervening decade. The Ombudsman concludes that the health board-HSE failed to fulfil its obligations to older people under the Health Act 1970 and that this failure came about with the full knowledge and agreement of the Department.

The Ombudsman makes clear that what she is referring to is rights under the 1970 Act. She also makes clear that she believes she does have a right to carry out this investigation. In effect, if this is not the case, and the Government is now contending that the Ombudsman does not have that right, this should have been dealt with after the 2001 report. The Ombudsman, Emily O'Reilly, states in her report that it was expected that it would be dealt with under eligibility legislation but that never happened. When it did not happen, the Ombudsman instigated this further report. I can see a legitimacy in the Ombudsman's argument that what she was doing was within the scope of her rights under the legislation and that she was dealing with the administration of legislation by the State, namely, the 1970 Act.

I would like to set out the history of what happened since the 2001 report and the issue then raised in regard to eligibility and entitlement. Mr. Kevin Murphy was Ombudsman at the time the Government stated it disagreed with the Ombudsman's interpretation of the law. It also said it would address the issue by way of the introduction of legislation. The Government amendment states that the Government recognises that eligibility for in-patient services under section 52 of the Health Act 1970 has always been subject to, inter alia, the availability of resources. That is a statement of fact. It is the Government's interpretation, which is still contended by the Office of the Ombudsman. This is where the situation rests until such time as legislation is implemented. The problem is that the legislation has not been brought before this Chamber.

I will set out the history since 2001. In November 2001, the Department of Health published Quality and Fairness - A Health System for You which proposed a general review of legislation on entitlement. The strategy as published by the then Minister stated that new legislation would be enacted to provide for clear statutory provisions on such entitlement and promised to introduce a Bill in 2002. The Travers report also addressed the issue of eligibility and entitlement. It stated that the advice which the Department had available from the Attorney General on the issue differed from the position put forward by the ombudsman. The Travers report stated: "The legal uncertainties in this complex area do not appear yet to be fully resolved." It went on to comment: "It is a remarkable feature of the health services in Ireland that such vast sums of money are expended on a system, the statutory basis for which is so confused and haphazard and where practise seems to dislocated from statutory theory."

We then had the 2003-05 strategy, Fair Access, which stated that the legislation would be high level objective No. 2 but it was not implemented. The strategy for 2005-07 again stated the legislation would be introduced but it was not. The latest strategy 2008-10 again states it will be introduced. The Bill was listed on the B list of the Government's legislative programme in summer 2006. In other words, it was a Bill in respect of which heads had been agreed and texts were being drafted. The expected publication date was given as late 2006. The Bill is now back on the C list and as such is going backwards.

The history of this issue is somewhat different than what the Minister presented here tonight. There is an absolute obligation on Government to produce that legislation.

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