Duncan Smith (Dublin Fingal, Labour) | Oireachtas source

Since the report in the Mail on Sundayon 29 January 2023, we have seen the report of the Attorney General, which was utterly disappointing, and have heard the statements from the Ministers this afternoon that ricocheted off the central injustices that have been exposed rather than grappling with and accepting them and detailing a path we need to travel.

In the report last Sunday week, it was revealed that successive Ministers of Health employed and maintained a secret legal strategy to block or minimise compensation to older persons and their families who were or who might have been illegally charged for nursing home care.

The issue has never been tested in court. The lack of a test case is because the State's aggressive legal strategy made sure that no case could ever get to a full court hearing. As the 2010 Ombudsman's report suspected and as the Government's information note last week confirmed, cases were settled before discovery, that is, the publication of documents, to avoid encouraging more cases to be taken.

A central part of the injustice is that it was clear that people who had the resources - personal capacity, money, agency or links - to challenge the fees had them quietly dropped whereas other people without the same personal capacity, money or links and who may have been in the same nursing home or even the same room continued to be charged, sometimes for years and sometimes with major consequences for families such as being forced to sell homes, farms, businesses or other assets.

As the Ombudsman's 2010 report found, many people over these decades have been deprived of their legal entitlement and access to nursing home care over this period was marked by confusion, uncertainty, misinformation, inconsistency and inequity. The Ombudsman was deeply concerned about what the issue suggested about how adequately officials were briefing their Ministers and the whole nature of the Executive-legislative relationship.

While the 2009 nursing homes support or fair deal scheme put in place a new fees regime for nursing home care, it did not address the fundamental inequalities and injustices that occurred from 1970. The issue is not just that people were or might have been illegally charged for nursing home care but that the illegality was known for decades and health officials just kept on going. Now we discover that there was an aggressive legal strategy to frustrate access to justice for those affected.

On the question of medical cards, the Travers report notes that those with a medical card were not required to pay inpatient service charges but institutional assistance charges were payable. Those not who were fully eligible, that is, not in possession of a medical card, were liable to pay both. The Travers report makes it clear that the 1976 circular from the Department of Health tried to work around the law rather than amend it. That circular instructed officials to remove medical cards from people in long-term care, thus depriving them of the criteria that would make them fully eligible for free-of-charge care. This ignored the fundamental illegality of the charging regime. For example, in respect of section 3.2, it stated that a central feature of the legal concerns has been that the use of secondary legislation in the form of a ministerial regulation as a means of setting aside a substantive provision of primary legislation is ultra vires. It is not clear that the 2006 health repayment scheme included all relevant cases. The view was that the terms of reference for that repayment scheme were very narrowly written to minimise the numbers of who could apply for compensation.

The information note about the legal strategy suggests awareness that a much larger cohort of people could be eligible for compensation. About 20,000 people were compensated through the 2006 scheme, whereas potentially 250,000-plus were affected by fees since 1970. The 2006 scheme also had a cut-off point of 1988, with people charged before that date not included, yet there is no explanation as to why this is the case.

A complicating factor about medical card holders being entitled to free-of-charge care in public beds is that the State had public beds in public facilities, that the State publicly funded beds in voluntary, not-for-profit private nursing homes, and that the State had publicly funded contract beds in private, for-profit nursing homes, potentially in the same building as non-public private beds. Were all these types of bed included in the 2006 scheme?

Another gap in our knowledge relates to the detail of the subvention scheme that existed prior to 2009. Part of this appears to have involved means-testing the wider family of people in nursing homes, with adult children asked to contribute to costs. This seems like an extraordinary overreach in that it involved means-testing a person's children before giving him or her a subvention. These are things we still do not know about this scheme and the lack of publication of documents relating to this since the matter returned to the public consciousness last Sunday week is a great cause for concern.

The Labour Party supports Age Action's call for the appointment of a commissioner for ageing and older persons as a matter of urgency to strengthen the institutions of the State that are independent of the Government in order that such scandals as those we are discussing cannot happen again. There are already commissioners in Northern Ireland and Wales with proven track records of service to older persons.

The Attorney General's report was deeply disappointing. It seeks to conflate the interests of the Government with the interests of the State by, for example, invoking the taxpayer as a “client” of the Attorney General. It places undue and inaccurate emphasis on Government policy rather than legislation as the basis for spending decisions. It is quite simply wrong to state that "In the ordinary course, expenditure on social protection and health is a matter for Government." It would be more accurate to insist that where legal entitlements have been spelled out in health and social welfare Acts, the Government must seek the funds to meet that expenditure or else seek to have those Acts amended. There is no other policy option.

The report confirms that legal professional privilege has not been waived by the Government, so the Attorney General cannot provide any details of the advice provided. While more or less conceding in the report that medical card holders should not have been charged for their stay in public nursing homes, the Attorney General maintains there is a viable legal defence when it comes to private nursing home residents, but he seems to be demolishing an argument that no one has made. He states, "At no stage did the Oireachtas ever legislate (in the 1970 Act or otherwise) to make the provision of private nursing home care free to all persons in nursing homes of their own choice."

No one has ever argued that, however. What is being argued is that if the State fails in its statutory obligation to provide a public placement and instead places someone in a private nursing home, the individual resident should not be out of pocket. This argument is not recognised or addressed in the report and that is a fundamental failing. It is nowhere explained why, if the State had a bona fide and viable defence, it was prudent to settle so many cases, with not one of them proceeding to a court hearing. Quite simply, this lacks any credibility.

We would like to see full transparency, with all documentation to be published, to get to the root of the matter and determine why issues such as this occur again and again. As the recent revelations show, the State approaches litigation in a manner that is indistinguishable from that of any faceless private, corporate entity. It is a war of attrition against those who dare to sue it. There must be a change in approach. There is a clear and compelling case for splitting the Office of the Attorney General in two to separate the task of defending the interests of Departments from that of representing and defending the public interest. The Attorney General is not in the same position as a commercial law firm. Defence strategies for litigation against the State have to be prepared with a proper consideration of the public interest. This must be a watershed moment in Irish politics. We must make the necessary changes to prevent vulnerable people from being let down by the system. The most effective way to reprioritise the public interest over cost containment is to empower the Office of the Attorney General to draft strategies to defend the public interest just as doggedly as it currently pursues the narrower interests of Departments.

Aggressive legal strategies designed to quash, suppress or minimise an entitlement or eligibility for any citizen is something no government should stand over, whether that is the current Government, any previous Governments including those in which my party has been involved or, indeed, any future government. In the case of the disability allowance payments, for which it was a direct action not to trawl through State records to see who would be entitled to redress or justice, this too is an action over which any State body or Government cannot stand and as such, no Government past or present can stand over it either.

True transparency and openness in public life is tested by issues such as this. Accordingly, whistleblower legislation and freedom of information legislation, which we brought in, are good, but exposing the mistakes and bad decisions of the past is not enough in and of itself. We need a path to make up for these mistakes and this is an opportunity to do that. It is not enough that, when something like this is raised, as it has been over recent weeks, the Government would list out other areas where it has addressed an historical injustice and put in place a redress scheme or whatever the case may be. It is with each new case that we need to ensure we address that injustice and put something in place.

We still need to see documents and we need the matter to go to the Joint Committee on Health or the Committee of Public Accounts and to be discussed further in the Dáil. This Thursday-afternoon debate cannot be the end of the matter. This should be a watershed moment. While the Government and the State should be entitled to defend themselves against vexatious or nuisance claims, when it comes to real issues where the State's legislation is flawed, failed or weak, the State needs to be open and transparent and act in the interests of the individual, not in the narrow interests of its own Department.

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