Cormac Devlin (Dún Laoghaire, Fianna Fail) | Oireachtas source

I welcome the opportunity to examine the treatment of historical nursing home charges and disability allowance payments.

I might focus on the nursing home charges first. As I understand it, this issue originally arose out of the Health Act 1970, which granted people with a medical card free access to inpatient services. This was later determined to include long-stay nursing home care. However, in 1976, the then health boards withdrew medical cards for those in long-term care. This resulted in those patients and their families making contributions for long-term care between 1976 and 2004.

In 2004, the then Minister for Health and Children, Ms Mary Harney, introduced the Health (Amendment) (No. 2) Bill 2004 in an attempt to resolve the issue. However this Bill was referred to the Supreme Court. The court found patients who had been unlawfully charged for services had the right under Article 43 of the Constitution, which deals with private property, and Article 40.3.2°, which deals with the vindication of rights, to sue to recover damages. In its judgment, the court found that elements of the Bill represented an unjust attack on the property rights of individuals and therefore were repugnant to the Constitution. However, in its judgment the court only dealt with patients in public care homes. The court did not deal with medical card patients or people eligible for a medical card who could not secure a bed in a public facility and had to go to private nursing home care.

In response, the then Government introduced the Health (Repayment Scheme) Act 2006 to provide a legal basis for the repayment of long-stay charges which had been imposed on persons with full eligibility since 1976, that is, those persons who had a medical card or who were entitled to a medical card and in a public facility. The scheme entitled people in a public facility since 1998 who were still alive in December 2004 to recoup payments back to 1998, that is, within the six-year Statue of Limitations. Estates were given similar status. The HSE was also given power to reclaim funds to third-party institutions for people in their care with no families. The deadline for submitting claims under the health repayment scheme was 31 December 2007.

I understand approximately 35,000 applications were received under the health repayment scheme and almost 20,000 claimants received a repayment. This issue arose at the Committee of Public Accounts of which I am a member last week where we engaged with the HSE on this matter. A total of €486 million was paid out, with an average repayment of approximately €22,000. As I previously noted, the repayment scheme did not make provision for medical card patients, or those with eligibility who could not secure a bed in a public facility and had to go to access a private nursing home.

Individuals and their families who accessed private nursing home care during the period from 1976 to 2004, had to take legal action if they wished to press their case. I understand proceedings were issued in a number of cases. In each instance, it has been reported the case was settled at discovery stage.

We have advice from the Attorney General now that defends previous Government policy in dealing with the cases. The issue raises important questions, however, about the rights of vulnerable individuals and their families and the need for the State to protect the public purse to safeguard funds to provide important services.

I understand almost all historical cases have been settled at this stage and the health repayment scheme is close to winding down. Of course, the fair deal scheme deals with the current arrangements. We all engage with that on a regular basis.

In these circumstances, the issue is one of examining how we deal with current and future instances of citizens' access to courts and how the State vindicates the citizens' rights. Personally, I believe an ex-gratiaor administrative scheme would have been fair but I recognise this issue came to a head from 2009 to 2011, a period when public funding was extremely tight. Notwithstanding this, it is important the State examines how it treats citizens and service users right across its Departments and agencies. A stand-alone inquiry is not required but it should be dealt with as part of a wider exercise.

We need to provide additional funding to the Office of the Ombudsman. On another committee of which I am a member, we deal with the Ombudsman's office on a regular basis. Some of its staff would highlight the fact that there is a need to broaden their scope somewhat. This case highlights that need clearly. We also need to overhaul civil legal aid to support citizens and service users who wish to vindicate their rights.

I appreciate the Minister's attendance here today. I note that the Minister of State, Deputy Butler, will make closing remarks.

There have been discussions and debate, both in this House and outside, over the past couple of weeks on this sensitive issue. It is one that people obviously feel strongly about.

I welcome the candid nature of the Minister, Deputy Stephen Donnelly, and the Minister of State, Deputy Butler, in terms of dealing with this issue. It is not easy looking back on historical issues, as we know in this House all too well. Nonetheless, the Minister and the Minister of State are determined to see it through and to ensure that there is a more transparent way in future for those who are in those positions. Obviously, legislation itself has changed, which is most welcome.

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