John Moloney (Laois-Offaly, Fianna Fail)

At the outset I thank all Deputies who contributed to the debate. A number of Deputies have recognised the contribution of Deputy Fergus O'Dowd and I will also do so. I also recognise the number of years in which he has had an interest in the area. I ask Deputies to consider the involvement and interest of the Minister for Health and Children, Deputy Mary Harney, in the care of the elderly. The debate is not about the fair deal scheme or HIQA standards but it is worth remembering that whenever the Minister came before the Oireachtas committee dealing with health, they were the main issues on her agenda. The fair deal scheme has been an answer to a very difficult problem.

Many people this evening have based their thinking and speeches on the "Prime Time" programme, using words such as vendetta, personal animosity and others which belittle the debate. In this context I recognise the significant ability of the Minister for Health and Children and the Ombudsman. By coincidence, the Ombudsman's mother hails from my hometown - I know the lady quite well - and the first Ombudsman also came from Mountmellick. Notwithstanding such facts, it is very important to deal with this evening's issue.

Many Deputies feel this is an attack on democracy and people have even suggested it is a dictatorship. To my mind the Minister was purely refuting the allegations made by the Ombudsman that her Department failed to co-operate with the investigation. I will use the few minutes I have to respond to this.

Anybody who reads the Department's submissions and correspondence with the Ombudsman, which are freely available on the Department's website, will see that the Department made it clear on many occasions that it was available to fully co-operate with the Ombudsman in respect of any investigation within the parameters of the 1980 Act. It is worth repeating the concerns outlined by the Minister to the House last evening regarding the content, scope and language of the report, as well as the way the investigation was undertaken and how its conclusions were disseminated via the media. That is a very fair position to take and does not seek to diminish the Ombudsman's report; importantly, it brings clarity to the Government's position. I underline that it was not an attempt to hide, as has been alleged.

In order to bring balance to the debate, the Government at all times sought to balance co-operation with the Ombudsman with legal advice, as advised by the Ombudsman in other contexts. There was also the issue of a right to defend the State against any litigation. Many people have made the point that the Ombudsman is somehow above the State in the defence of citizens but surely the Minister has equal entitlement by way of defending the State against litigation.

It is unfair that the Ombudsman would seek to portray this in such a negative and conspiratorial light, and that is where our difficulties lie. There was no attempt to be conspiratorial and, importantly, there was an attempt to be open. The Government made the point that the Ombudsman followed fair procedures in notification of subsequent investigations of the matter. There was a refusal to supply the Department with a full report or, initially, anything more than a five page summary. Comments made during the investigation by the Ombudsman clearly showed judgments had been reached and opinions formed prior to any final report or request for response from the Department.

The report states that in a letter to the Department of 25 September 2009, the Ombudsman clarified that the actions being investigated did not include the Department's handling of the litigation concerning the right to be provided with inpatient services. The Ombudsman rejected any suggestion that she acted outside her jurisdiction in undertaking this investigation and in defence of her own view she refers to what public sector ombudsman offices in other countries do, although I do not see the relevance of that, as well as what Irish Ombudsmen have done for years. As with the nursing home charges issue, a long-standing practice may still be ultra vires. Regarding what the Ombudsman states is implicit in the ombudsman model adopted by the Oireachtas in 1980, the position seems somewhat at odds with her contention that the Department has disregarded the plain meaning of the wording of the 1970 Act.

It is important to make the point that the Ombudsman has stated her investigation is based on many complaints received over 25 years. There were an average of 48 complaints per year on nursing home type care. It is important that this be seen in the context of an average nursing home population in excess of 20,000 in recent years. I wish I had more time to put further explanations but I am thankful for my opportunity to contribute.

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