Stephen Donnelly (Wicklow, Fianna Fail) | Oireachtas source

I would like to start today by addressing the verbal and physical attacks on healthcare workers that have been reported in recent days. That our staff have to endure such attacks while endeavouring to deliver care is intolerable and completely unacceptable. It is particularly invidious that some of these attacks are racist in nature. A strong message needs to go out from this House that everybody is welcome in Ireland, regardless of race, creed or ethnicity. People who come here from other countries are particularly welcome in our health service. More than two in every five doctors and nurses employed in the HSE were not trained in Ireland. Without them, we could not provide essential healthcare to our most vulnerable citizens.

I say to those who are perpetrating these vile attacks, the person you are attacking is the person you will rely on to treat those you love - your mother, father, son, or daughter - when they are at their most vulnerable. To every healthcare worker in Ireland who comes from another country I say, you are welcome in Ireland, you are valued in Ireland, and the work you do is essential and is appreciated. Thank you for all that you do every day for patients and their families.

I welcome the debate today. It is important that this House has the opportunity to discuss these matters which have been subject to public discussion recently. The Government takes seriously the issues raised about how the State has approached legal challenges taken against it. The Government moved quickly to establish the facts surrounding these issues, which go back many decades, by requesting the Attorney General to prepare a report on the litigation management strategy. This comprehensive report was produced within a week and was published on Tuesday to allow for a full and informed debate in the House today.

It is important to set out the background and context on both of the matters at hand. I will address the issue of nursing home charges first. Long-term residential care for older people in Ireland is provided by a mixture of public, private and voluntary providers. Up to 2009, when the nursing homes support scheme was introduced, separate arrangements existed for funding care in these different settings. People who were provided with publicly funded long-stay care in public facilities and in publicly contracted beds paid a contribution towards the cost of their maintenance through a charge. The majority of the cost was funded by the State through the health budget.

It is a matter of public record that until the mid-2000s the regulations underpinning these charges were not supported by primary legislation. This was the subject of an independent investigation by Mr. John Travers in late 2004, a Supreme Court ruling in early 2005 and much debate in the Oireachtas and in the media at the time. New legislation was enacted in 2005 to regularise these charges and a repayment scheme was introduced in 2006 for those on whom charges had been levied. More than €450 million was paid out under this scheme. The scope of the scheme was well publicised at the time and was limited to those who had full eligibility under the 1970 Act and who had paid charges as a contribution towards their publicly funded care.

The situation with private nursing homes was different. People entered into their own contractual arrangements with these homes and were responsible themselves for meeting the costs of the fees. This included people who were assessed as fully eligible under the 1970 Act and had a medical card. The State did provide financial assistance towards the cost of fees through a subvention scheme. The numbers receiving subvention grew over time, from 3,200 people in 1994 to more than 9,900 people in 2004. As per Government policy and as allocated by the Oireachtas, the level of State funding per bed was greater for publicly funded beds than it was for privately funded beds. This policy of funding public and private nursing home care differently was ended in 2008 via the nursing home support scheme.

Any eligibility under the 1970 Act was and continues to be subject to the availability of resources. This is the case with all health services provided by the State, given the finite nature of resources. It is not Government policy, nor does the State have an obligation, to use public moneys to pay for private care. For example, where medical card patients today avail of private health or social care services, the State is not obliged to cover those costs. Where private care is availed of, reimbursement may happen under a system of prior approval. This is the case, for example, with private care sourced by the National Treatment Purchase Fund and various initiatives under the waiting list action plan.

This brings me to the heart of the issues that have been raised. As the House will be aware, following the Supreme Court judgment in 2005, legal cases were taken against the State relating to claims that the State failed to provide nursing home care free of charge to those who had full eligibility under the 1970 Act. A total of 516 cases were initiated over the period 2005 to 2013, of which 289 were in respect of private nursing home care with a further 37 in respect of a mix of public and private care. The balance were in respect of public nursing home care with the majority of these cases resolved. Cases have been managed by the Department of Health case by case over the years in close consultation with the Office of the Attorney General. Underpinning the defence of these cases is the position that it was not the policy intent of Government or the Oireachtas for public moneys to be used in this way, and there was not an unqualified entitlement to private nursing home care provision or reimbursement for same.

The Attorney General's report provides an account of the litigation management strategy adopted by the State in relation to these cases. The report sets out that the legal advice furnished in respect of the litigation concerning charges levied for private nursing home care was sound, accurate and appropriate, with the conclusion that there is and was a bona fide legal defence to these cases. The report also sets out that the advice provided by the Office of the Attorney General and his predecessors offered a robust justification for the Department of Health to act in the manner it did, under the supervision of various Ministers over the years. The report also sets out that the Department acted prudently in settling claims involving care in private nursing homes rather than risking an adverse outcome in a test case, which could have provoked many more historic cases, with a substantial potential exposure for the taxpayer. The report also stated it is entirely right that the State should be able to adopt a strategy on how best to approach litigation, that it is able to form such a strategy under the protection of legal professional privilege, and that it is appropriate for the strategy to be confidential.

I will now address the second issue in relation to the disabled persons' maintenance allowance, DPMA. I am aware that, during the past fortnight, issues have been raised in the media relating to the eligibility of persons living in residential facilities to the disabled persons' maintenance allowance. These issues relate to an extended time period going back almost 70 years. The DPMA was established under section 50 of the Health Act 1953. It was replaced in October 1996, which is 26 years ago, by the disability allowance scheme under what is now the Department of Social Protection. The Minister, Deputy Humphreys, will be speaking further to this shortly. From 3 January 2007, entitlement to disability allowance was extended fully to all persons resident in institutions who otherwise met the conditions of the scheme.

Broadly speaking, the prevailing policy of Governments from the 1950s through to the end of the 20th century was that the State would provide for people with disabilities, either through in-kind support in a residential facility or through financial supports for people living in the community, but that it would not do both. This policy position was enshrined in the first regulations made in 1954 under the legislation under which the DPMA was established, namely the Health Act 1953. It was repeated subsequently in regulations made under the Health Act 1970, which became the subsequent basis for the scheme. This position continued into the Social Welfare Act 1996, when the Department of Social Welfare, as it was known, took over the scheme and renamed it the disability allowance. This allocation of public moneys was approved by the Oireachtas through each budget. The prevailing policy remained unchanged when responsibility for the DPMA transferred from the Department of Health to the Department of Social Welfare in 1996. The Government's policy was further enshrined in the Social Welfare Act 1996, and the period during which a person could continue to receive disability allowance on entry to a residential facility was extended from eight to 13 weeks at this time.

The Commission on the Status of People with Disabilities in 1996 emphasised the principles of equal rights, autonomy and choice, and had criticised the exclusion of those in residential care from DPMA. The subsequent 1999 Social Welfare Act provided that those newly entering residential facilities would retain the disability allowance upon admission to long-term residential care. A 2003 interdepartmental working group recommended the repeal of the residential care ineligibility. Following that, and as an interim measure, the Social Welfare Act 2005 provided for a minimum payment of €35 a week to people living in long-term residential care. The residential care ineligibility of people living in long-term care from receipt of the disability allowance was abolished in 2007.

Policies in place today providing supports for people with disabilities are different from, and in many ways more progressive than, policies going back to the 1950s. The agency and independence of the individual is better supported, protected and respected. This includes direct financial supports, moving from congregated settings to community living, and provision of multidisciplinary health and social care services. That is not to say that an awful lot more progress is not needed; it certainly is. However, the progress that has been made is important and has made a substantial difference to those living with disabilities.

However, I would be the first to acknowledge that we have a long way to go as a State in getting to where we need to be in fully and properly supporting people with disabilities.

The approach to allowances is different now than it was during the period under discussion. However, it is clear from a thorough review by the Department of Health and the Attorney General that, from the 1950s to the 1990s, the policy was that the DPMA and, for its first few years, the disability allowance were to support those living in the community and, therefore, did not apply when a person moved into residential care. This was a transparent policy and the intent of governments was clear. It was funded on that basis each year by the Oireachtas over a period of more than 40 years. While we might debate the policy today - the State has moved away from it, and I fully support that move - there was undoubtedly a transparent Government policy in place for many decades and the Oireachtas allocated public moneys on that basis year after year. We began to change the policy during the 1990s, but even today we retain the principle that those in such care contribute towards its cost through the residential support services maintenance and accommodation contribution.

While there have been a small number of cases over the years in respect of the DPMA, it is clear that, no matter what weakness may have been found in the law or what mistake may have been made in drafting the legislation in 1953 or transposing it over the years, the intention of the Oireachtas was that those in residential care would not also be in receipt of the DPMA, which was clearly meant to support the costs of living in the community. As noted in the Attorney General's report, "there was a clear and logical distinction between the financial needs of those living in the community in their own homes and those living in a State-provided residential care environment".

We look at the world differently today compared with those who sat here in the 1950s or 1970s. Even in my time in the House, we have as an Oireachtas brought in sweeping reforms to how we treat people who are often marginalised by virtue of their gender, sexuality, socioeconomic status or disabilities. We know that work is a long way from being finished.

The report from the Attorney General provides us with a comprehensive account of these issues. While we must look to the past, we must also remain committed to the present and the future. The specialist community-based disability budget will amount to approximately €2.6 billion this year. Building on the previous year, this is an unprecedented level of funding for disability services. It will give people with disabilities greater choice, independence and, quite rightly, control over their lives and empower them to participate in their local communities.

Our overall investment in older person's services will be more than €2.4 billion this year. That includes nearly €12 million for new services. Older people who wish to continue living in their homes for as long as possible are helped and supported through community services, daycare, meals on wheels, home care etc. Those who require long-term residential care will continue to be supported through the nursing homes support scheme.

I look forward to listening to the contributions from colleagues during this debate.

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