David Cullinane (Waterford, Sinn Fein) | Oireachtas source

I am sharing time with my colleagues. I welcome the two Ministers. In the past two weeks, we learned that Fianna Fáil and Fine Gael Ministers knew that tens of thousands of families with medical cards had been wrongfully charged for nursing home care to which they were entitled. That includes up to 9,000 people in long-term residential disability services who were charged so-called voluntary contributions. It includes potentially tens of thousands more families who were forced to fork out for private nursing home care because the Government of the day had refused to put in place any scheme to cover their costs.

Fianna Fáil Ministers for health, including the current Tánaiste, Deputy Martin, denied any responsibility for their care despite clear legal advice to the contrary, as covered in the Ombudsman's reports in 2001 and 2010, in the Travers report in 2005, and in the various secret memos which set out the Government’s denial strategy. By the way, none of those memos has been published. None of the memos given to any Minister for Health from 2009 onwards has yet been published by the Government, and that must be said clearly here today.

Initially, the Taoiseach, Deputy Varadkar, claimed he knew nothing about this strategy. Then he admitted he was briefed on the strategy and it is now the position of the Government that it was a good strategy. The first injustice is that these families were ripped off in the first instance. The second injustice is the heartless political strategy put in place by successive Fianna Fáil and Fine Gael governments. It is the same strategy deployed against survivors of historical institutional abuse and of historical negligence in CervicalCheck, and against those affected by the issues of sodium valproate, thalidomide and mother and baby homes. It is a strategy that allows compensation only for the better off while denying the most vulnerable access to justice.

The strategy was to stop cases from going to court, to delay, divide and conquer, to wage a war of attrition, to hope they go away, and if they did not, to pay them off and keep others in the dark. The Government’s heartless and cynical political strategy to deny citizens their rights and then to deny them any redress or compensation is set out plainly in the recently disclosed secret 2011 memo on the management of long-stay and related litigation. The memo states "the strategy is that, in general, these proceedings should be fully defended and that a strong case should be identified which can then be fought as a test case”. No strong case ever emerged. No test case was ever heard. The memo goes on to state:

Confidentiality has been a central element of the legal strategy. The fear is that if details of the cases, the legal strategy and settlements were to gain a high public profile, it would spark a large number of claims.

A 2017 briefing note for the Ministers, Deputies Harris and McEntee, said, "It remains important to manage historic long-stay litigation with extreme care, discretion, and confidentiality due to the very substantial level of liability to which the State could potentially be exposed following an adverse outcome." The note further states:

Confidentiality has been a central element of the legal strategy. The risk is that if details of the cases, the legal strategy, or settlements were to emerge, there is the potential for a significant increase in private cases in particular and for an upward creep in the percentage at which cases can be settled.

The deployment of this strategy is evidenced in the Conroy case, in which Joseph Conroy, who made his story public in the Sunday Independentat the weekend, pursued a refund of €120,000 spent on private nursing home care for his mother, who had a medical card. Mr Conroy acknowledges that he was one of the lucky few who could afford this care and who could afford to pursue the Department for many years to the point of pushing the Government to settle on the court steps. In an email regarding the Conroy case, an official at the Department of Health wrote to the Chief State Solicitor's office stating:

I [can] confirm that, having failed in our attempts to negotiate a settlement ahead of last Tuesday and having considered our legal advices, we had no realistic option other than to consent to a discovery order in the terms arising from the Shallow/McKenzie discovery ruling(s) and that there is no change in the Department’s policy position – informed by legal advices to date from the Office of the Attorney General and ... Ministers Harris & McEntee – that discovery should be avoided in all long-stay cases, including the Conroy case.

Discovery should be avoided in all cases - not some, not a few, but in all cases - taken by the State. So much for the argument the State believed in its legal position. It goes on to say, "The reality of making discovery or running a hearing in one of these cases continues to be too risky to be seriously contemplated, and, whether we like it or not, settling the Conroy case – if necessary on terms we may find somewhat unpalatable – appears to be the only way forward." Mr. Conroy took a case. He went as far as he could, got to discovery and the State said it must settle even on terms unpalatable because it did not want to open the floodgates. That is what happened.

This demonstrates beyond doubt that the Government knew and knows that it had a responsibility to cover this care in potentially tens of thousands of cases. It lays bare in tangible terms that the Government’s strategy was to avoid handing over damaging documents or engaging in a public trial which might tip off other families that they had been fleeced. The instruction from the Minister, Deputy Harris, and from every Minister before him for 50 years, was to settle all cases at any cost. At no point did a single Minister, including today, stand up and say this was wrong, that we had a moral and ethical duty to address this. Instead of a proactive effort to identify wrongdoing and compensate victims of Government heartlessness, an active effort was made to suppress claims, gaslight victims and deny compensation to those who deserved it.

The fact is that the health boards of the time were deciding whether people were going into public or private nursing homes depending on available capacity and in the absence of enough public beds.

It was not that families were making choices to go private; health boards were actively putting people into private nursing homes because it was the only option open to families. The families who were entitled to free public care where the capacity was not available had no choice but to go into a private home. Health boards facilitated that due to the fact they had no choice because the Government had not put public capacity in place in the first place. This is clear from the Attorney General’s report.

In some cases, the health boards paid subventions and in other cases they did not, but in all cases of medical card holders placed in private nursing homes and charged for that care, the health boards were acting outside or beyond the law. They advised the Department of this, but the Department said to continue anyway. That was a political choice.

Through no fault of their own, families ended up using private homes due to the political failures of Government. The consequences for many were devastating. The Ombudsman’s 2011 report lays out these consequences and any Minister who thinks this is a good, ethical strategy or just strategy should read it. It highlights the following cases:

Her mother is in a private nursing home. It costs £20 a day, £600 a month. The mother’s widow’s pension of £400 does not cover this and her daughter pays the rest. Her husband is on £62 invalidity pension. She is on £45.80 Disability Benefit. Their 17 year old son has left school. Of their income, they have to meet the shortfall of £50 per week. Whatever happens, they will starve themselves rather than move the mother.

My wife, Mary, is in a nursing home which costs £130 a week. I am in receipt of a pension of £93 a week. I asked the Community Welfare Officer for help with this, and they got the nursing home section ... to increase the grant to the nursing home to £65 per week. That means I also have to pay £65 a week, leaving me with only £28 to live on.

He says that after pay the nursing home fees of £170 a week, he has only £35 per week to live on. Whatever savings they had are being gradually eroded and he feels they will not have sufficient [funds] to bury themselves.

That is a small sample of those who made complaints to the Ombudsman at the time. The human consequences of this heartless strategy was laid bare.

When it came to redress, those in public homes were included, but families put into private homes by the health boards and ripped off were left high and dry despite their hardship being a direct result of the Government’s political choices. The Government, in the Attorney General’s report, says that it could have acted legally. This serves to highlight the very point that the Government acted illegally.

The Attorney General goes on to state that there were clear and bona fide legal defences available to the State, but these were never tested in court. In 2016, a briefing note states that, “there is no obvious lead case, and therefore settling, for the best possible economic value, is the most appropriate course of action". If the Government was so confident in its legal defence, why was it so afraid of taking cases to the courts? Why was it afraid of the Conroy case going to discovery? Why was it so afraid of details of these claims and cases coming out? Why would utmost secrecy be so essential if the Government was confident and had good faith defences which would hold up in court? The answer is clear; it is because the Government’s position was and is still wrong. It could not find a single case that it could fight and win. The Government settled the Conroy case, and hundreds like it, as well as several hundred cases related to long-term residential disability services, even where it found the settlement amounts unpalatable because, "the reality of making discovery or running a hearing in one of these cases continues to be too risky” as it would expose the Government’s heartless political strategy.

Regarding people in long-term residential disability services, the 2011 memo estimates a potential liability of some €360 million.The memo outlines how the Government sought to deny any repayment to these families, numbering up to 9,000, who had been wrongfully charged for long-term residential disability services.

Many thousands did not apply to the health repayment scheme, as the Government intended, on the basis that they were not included in the definition of a public home. That was a deliberate strategy to exclude them from redress. Some 515 cases were put on behalf of residents with disabilities in the care of St. Michael’s House, Cheeverstown House and the Daughters of Charity. Three test appeals were considered by the scheme’s appeals officer, and the memo notes there are 512 similar appeals.

The Government, rather than righting these wrongs, sought instead to challenge the ruling of its own appeals officer. However, it did not in the end because, as the memo notes, "the Department has received advice from Senior Counsel on these cases, which suggests that the State is likely to have difficulty successfully proceeding with these appeals". Over the following years, some €20 million was paid out to these appeal cases in settlements, as disclosed in the HSE’s financial statements.

However, the issue for the Ministers here today is the other 8,500 who may, and indeed did, have an entitlement to redress, but had either not applied on the advice of Government that they were ineligible or did not appeal on the basis of that same advice. They have been left high and dry.

These were residents with moderate to profound disabilities whose families were wrongfully charged for their care, and were on the receiving end of the Government of the day's cold and heartless political strategy which first denied them of their rights, then made them pay for it and then, despite knowing they were likely entitled to compensation, decided to keep them in the dark. These numbers were not picked from the air. When the Department estimated the liability at the time, that was based on real people. The figures are clearly calculated on the basis of records held by the Department and HSE which demonstrate that such a value of fees was wrongfully charged and taken from families, older people and people with disabilities. To this day, the Ministers are not prepared to admit in the Chamber that was a mistake.

Some families and those homes which appealed the decision were paid, but those who did not were left to suffer in silence. There was more secrecy and people were not told the truth. Subsequent settlements valued in the tens of thousands clearly give the lie to the notion that Government was not responsible for the costs of their care. We do not need to look any farther than the Conroy case, which demonstrates beyond doubt that the Government knew it was responsible in many more cases than it admitted.

It has also emerged that up to 12,000 people with disabilities living in residential care had their disability allowance payments illegally taken from them. The Government has now recognised that this was wrong. The Taoiseach, Deputy Varadkar, said last week that the Government had no legal leg to stand on. Yet, according to the Government this week, while it may have been unlawful to stop the payments it has no legal obligation to pay them back. That is perhaps the most sickening element of these scandals and demonstrates the callousness with which this Government acts. We take money from people that we should not be taking from them, and we know we are acting outside the law but will do everything possible not to pay them back. When that was happening, no end of money was found to set up NAMA, to bail out developers or to put into the banks. Tens of billions of euro could be found. We hear from Government about finite resources, but there were no finite resources when it came to bailing out the banks.

However, when it came people with disabilities and vulnerable people in nursing homes, a strategy was developed to keep people in the dark and not pay them. That goes to the heart of the callousness of this Government. Despite a clear moral and ethical duty to pay these families back, the Government considers that it has no legal obligation to do so, and if the families want their money back they will need to spend thousands to pursue matters through the courts.

For far too long, Governments have taken an aggressive and combative approach to those who have been wronged by the State. From the treatment of Brigid McCole, who was dragged through the courts in her final months, to Vicky Phelan and the brave CervicalCheck victims who stood up to attempts to bully them into silence, Louise O’Keeffe and victims of institutional abuse, Thalidomide survivors, families affected by sodium valproate and many more, they were all wronged by the State. It was an absolute disgrace that in the Minister's opening statement there was no apology or acceptance of wrongdoing. The Minister doubled down and that is absolutely shameful.

See this speech in context