Willie Penrose (Longford-Westmeath, Labour)

I commend Fine Gael on bringing this important motion before the House in Private Members' time. More particularly, I salute the Ombudsman, Ms Emily O'Reilly, for having published an excellent and comprehensive report which investigated the operation and provision of long-term care for the elderly by the health boards, the Department of Health and Children, and the HSE. The Ombudsman has described the system at the outset as a largely chaotic and ad hoc one where confusion was sown about rights and entitlements. People were subjected to huge bills which necessitated the extraction of financial security from the elderly because of the deliberate failure of the system to clarify these people's right to public care, let alone provide it for them.

The introduction of the fair deal or nursing home support scheme in 2009 has helped things somewhat. In her Magill School lecture, Ms O'Reilly correctly pointed out that by using this mechanism the State now believes it has divested itself of the responsibility to provide nursing home care. The principle now being proposed is that responsibility for long-term care rests with the applicant and his or her family, which is qualified as usual or dependent upon the availability of resources. It is not a demand-led scheme so there are no guarantees and if no resources are available, the applicant is placed on a waiting list. No great improvement is derived from that, however. In effect, we are witnessing the advent of mass privatisation of nursing home care provision, with a 150% increase in the number of private nursing home places over the last 12 years. This represents a rush to privatisation, which is what the Government's policy is all about. It is about subjugating public health care provision at the expense of tax breaks for the provision of private nursing home care. I have seen it at work in my own area where for many years excellent health care was provided at St. Mary's Hospital.

In her thorough investigation into the right to nursing home care in Ireland, I am glad the Ombudsman has brought to the fore an argument which dates back 40 years since the 1970 Act was passed. She referred to rights arising under the clear and precise words of the relevant sections of the Act. The Government allowed this situation to continue over the last 15 years despite numerous reports, including the Travers report. The latter report succinctly stated it was remarkable that, in the context of health service provision in Ireland, huge sums of money were expended on a system that was somewhat confused from a statutory perspective and where the practice was in fact somewhat dislocated from the statutory theory.

It is from that perspective that I would like to review some of the issues involved, particularly the legal ones. What the law provides for is characterised as a state of flux surrounding the provision and more importantly the obligation to provide long-term State care facilities for our elderly population. For up to four decades, the State through the vehicle of the old health board structure and latterly the HSE, has dodged, weaved and refused to comply with the letter of the law, which was plain and unambiguous in this regard. However one tends to construe or interpret this - either by way of literal, schematic or teleological methods - one can only conclude that the State purposely disregarded the law that applied in this area. That law imposed an obligation to provide nursing home care for our elderly citizens.

The starting point for the construction of a statutory basis is the Health Act 1970. The problem is that the State vehemently disputed the impact of that Act by availing of the oft-employed economic considerations or the availability of resources provision. The latter served to confuse or complicate the issue of eligibility. Over the years, the State and, more importantly, the Department of Health and Children, were allowed to park key requirements of the Act concerning the provision of in-patient services and thereby side step their clear statutory obligation to provide specific services.

Section 51 of the Health Act 1970 unambiguously defines in-patient services as institutional services provided to persons while maintained in a hospital, convalescent home or home for persons suffering from physical or mental disability or an accommodation ancillary thereto. This clearly incorporated the care provided in a nursing home and the Supreme Court clarified this in the McInerney ward of court case in 1976. In my view, this confirmed in an unequivocal fashion an elderly person's legal right as a geriatric patient to receive in-patient services free of charge. This clear statement of the law continued to be disregarded for the next three decades, notwithstanding the fact that it was handed down by the highest court in the land. The various health boards continued to charge medical card holders, notwithstanding the fact that it was clearly illegal to do so. This practice was abruptly ended by the introduction of the statutory health repayments scheme, which set up a mechanism for repaying those who were charged illegally for their care.

Section 52 of the Health Act 1970 reinforced this view and obligated health boards to make in-patient services available for persons with full eligibility and persons with limited eligibility. It is notable that there were no ifs, buts or maybes; the obligation was unequivocal in its mandatory imposition. It was reinforced by the fact that during the same period people had an entitlement and eligibility for in-patient services in public hospitals.

The Department articulated the view - unsustainably, in my opinion, given the mandatory nature of the legislation - that the statutory provision distinguished between eligibility and entitlement. One is compelled to the viewpoint that this was a rear-guard action to stave off the inevitability of the fact that the health boards were statutorily obliged to provide in-patient services. One would support the Ombudsman's description of the stance adopted by the Department as being of a tortuous construction, which was neither necessary nor plausible.

Part 6 of the Health Act 1970, which deals with the provision of health services, sets out a range of services to be provided, and to whom and on what terms they could be provided.

Section 60 of the Health Act 1970 provides that, as regards nursing home provision, a health board shall in relation to a person with full eligibility and such other category of persons and for such purposes as may be specified by the Minister, provide a nursing service. Eligibility is the term used solely as an identifier of those to whom the service shall or may be made available. There is no room for confusion as to the meaning of "eligibility", or that it is equivalent in meaning to "entitlement". Eligibility is used to identify the categories to whom a service shall or may be provided. It is not utilised for the purposes of defining the extent to which services must be provided. Indeed, the Ombudsman advised the Legislature that any perception, contention or confusion arising from the interchangeability of these terms - "eligibility" and "entitlement" - could have been avoided by the adoption of neutral terminology in delineating the various categories of health entitlements. She indicated that one could do so by naming them as categories 1, 2, 3, etc.

In the Tierney v North Eastern Health Board case, which dealt with another section of the Health Act, Judge Denham observed that statutes should be construed according to the intent expressed in the legislation. The words of a statute declare best the intent of an Act and consequently those words should be given their ordinary meaning and the court is bound to give effect to the clear meaning of the statute. Thus any construction of section 52 of the Health Act 1970, among others, clearly confers a statutory obligation on the health board, the HSE, etc., and confers enforceable rights on relevant individuals.

The Government had a choice concerning the provision of services as set out in the 1970 Act. By a deliberate political act, it opted to favour the provision of care for the elderly by way of private operations rather than public ones. The Boston versus Berlin debate was at its zenith in the pursuit of the privatisation of health care provision. The private argument went out clearly and obviously.

The argument for the universal provision of health care is always made in two main areas: births and young people, and care for the elderly. Variations may be made regarding the capacity argument between these two specific and clear areas. The elderly are not in a position to increase their income in any meaningful way. They are generally confined to fixed incomes. We may wonder where the funding can come from, but in a country where 80% of tax relief for private pensions goes to 20% of recipients, even reducing these to a standardised tax rate would save the State in excess of €1 billion per year. This is where it should be applied.

In the context of public health care provision for the elderly, we have a State validation system for qualifications and competencies, whereby the provision of important services for elderly citizens is based not solely on the cost of the service but on the adequacy of same. Every single social survey suggests that people want to live in contentment where possible in their own home environment for as long as possible. That possibility needs to be supported by the provision of services. Residential care should be seen as a last resort. Where services are not provided, however, people are compelled to avail of institutional care, which under the policy of this Government is essentially in private nursing homes.

I recall the efforts I made as Chairperson of the Joint Committee on Social and Family Affairs in this regard. I authored a report on carers, which brought significant improvements for them, including the payment of the half-carer's rate to people in receipt of other specific social welfare payments. I have always unashamedly and fearlessly advocated the rights of carers because I recognise their contribution to ensuring that those they care for can remain within their own home environment where they will be most contented. In doing so, they save the State billions of euro. This is why it is important not to roll back these advances. We should recognise the role of carers as real employment. The caring economy is an important sector and full PRSI recognition in terms of their contribution should be considered.

I was always, and still am, a great supporter of St. Mary's Hospital, which is the local public health hospital in Mullingar. It provided accommodation for the elderly and disabled people, particularly in mid and north Westmeath. In the early 1980s, when we had significantly fewer people in terms of age profile and dependency, up to 200 beds were available through public provision. Some 200 beds were available in straightened financial times with a smaller population base. It has now been reduced to fewer than 100, which is where this matter has gone wrong in providing private health care.

See this speech in context