John Perry (Sligo-Leitrim, Fine Gael)
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I am delighted the Minister of State is present and I hope he will be able to provide answers on this important issue.

Since 2001 the Government has illegally charged thousands of elderly pensioners in public nursing homes. Prior to that date, health boards were legally entitled to seek a contribution from medical card holders in long-term care. In other words, their full eligibility to free inpatient service was reduced and the health boards could legally seek a contribution from them. For anyone 70 or over, the Health (Miscellaneous Provisions) Act 2001 clearly confers full eligibility to free inpatient services. The Act does not allow for that eligibility to be diminished of for charges to be levied.

Does the Minister of State accept that all persons aged 70 or over in public nursing homes have been illegally charged since 2001? Will he quantify the number of pensioners affected and the amount of money they have paid in the past three years? How long has the Department of Health and Children and successive Ministers been aware of this illegal charging? Will he arrange to have those patients who have been overcharged reimbursed from the central Exchequer and not from the already over-stretched health budget?

I will now set out the position in respect of charges for persons in long-term care units. These units include community-district hospitals, community nursing units and those private nursing homes where the State contracts beds for the provision of long-term care. Under section 45 of the Health Act 1970, a chief executive officer is empowered to change the eligibility status of a card. However, under section 1 of the Health (Miscellaneous Provisions) Act 2001, section 45 of the 1970 Act was amended to include the term "a person who is not less than 70 years of age ... shall have full eligibility". This cannot be diminished.

The Department must be aware that this illegal charging has been implemented for the past three years and that it is ongoing. Has it sought an opinion from its legal advisers since 2001? What has it done about such advice and when will it remedy the situation? Has the Tánaiste been apprised of the huge liability that will befall the State?

There is no ambiguity about this illegality. The Minister must take immediate and decisive action to initiate a thorough inquiry into how her Department allowed this unacceptable scenario to arise and continue for more than three years. The Government must indicate whether the decision to give full eligibility to all persons over 70 years was intended so that they would not have to contribute towards long-term care. If such a person has been illegally charged, how much is estimated to be involved and what steps will be taken to refund the amounts charged? Will compensation be paid to those persons as a result of the losses they incurred?

The Ombudsman's reports of 2002 and 2003 highlighted cases in which refunds had been made. There is, therefore, a precedent. The health boards have raised this matter with the Department. What advice has been received? What is happening about these charges? Responsibility rests entirely with the Government, not the health boards, which sought legal opinion on this matter in the past three years. No decisive action has resulted.

The scheme was introduced prior to the last general election and the number of people eligible under it was miscalculated. Full eligibility was given to people in long-term care. Prior to that, the medical card could be diminished once the patient went into long-term care. These cards, however, cannot be diminished. There is a legal obligation on the State in this regard. I have dealt with several cases in which probate was taken out and the State recovered debt where people illegally received pension entitlements. It was taken from their estate. The State has taken money illegally from the most vulnerable people in society. I call on the Minister to ensure all illegal charges are refunded. This serious issue stretches back over three and a half years.

Tim O'Malley (Limerick East, Progressive Democrats)
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I thank the Deputy for raising this matter. Eligibility for health services is primarily based on residency and means. Under the Health Act 1970, determination of eligibility for medical cards is the responsibility of the chief executive officer of the appropriate health board other than for persons aged 70 years and over, who are automatically eligible for a medical card.

Medical cards are issued to persons who, in the opinion of the chief executive officer, are unable to provide general practitioner medical and surgical services for themselves and their dependants without undue hardship. It is open to all persons to apply to the chief executive officer of the appropriate health board for health services if they are unable to provide these services for themselves or their dependants without hardship.

However, the principle that it is fair and reasonable that those who can afford to contribute to the cost of their long stay care should do so is central to our system of publicly funded long-term care. The health strategy reinforces this point and states:

It is recognised that quality care is expensive and that the bulk of the cost of providing a high standard of quality care should be borne by the exchequer. Nonetheless, it is fair that all those in receipt of publicly provided residential long-term care should make some payment towards accommodation and daily living costs, if they can afford to do so, just as they would if they were living in the community. This principle supports the aim to provide as high quality a service as possible and to make the most equitable use of resources and thus to help maximise the availability of these services.

The current position reflects this approach.

Charges for long-stay care in health board institutions may be raised under the Health (Charges for Inpatient Services) Regulations 1976, as amended in 1987. These regulations enable charges to be made towards the cost of providing hospital inpatient services for persons with income who have been in receipt of such services for more than 30 days or periods totalling more than 30 days within the previous 12 months. Inpatient service charges are payable only by persons with limited eligibility. Medical card holders are exempt from the charges, as are persons with dependants.

Charges may also be made under the Institutional Assistance Regulations 1965 where the patient receives "shelter and maintenance" rather than treatment. These charges apply from the date of admission and are payable by all patients in receipt of incomes, including medical card holders and persons with dependants.

Health boards have regard to the person's individual circumstances in deciding the amount to be contributed. Allowance is made for the financial commitments the person may have and a reasonable amount is left to meet the person's needs. Charges may be waived if, in the opinion of the chief executive officer of the appropriate health board, payment would cause undue hardship. Different arrangements apply to financial contributions from people availing of public long-stay care, as opposed to those accommodated in private nursing homes, for example, under the Health (Nursing Homes) Act 1990.

The health strategy, Quality and Fairness — A Health System for You, acknowledges the need to clarify and simplify eligibility arrangements and sets down a commitment to introduce new legislation to provide for the introduction of clear statutory provisions on entitlement and eligibility. A review of all existing legislation in this area has been carried out in my Department and this will inform the approach to the drafting of new legislation in this area. As part of this exercise, my Department will attempt to resolve the current differences in approach in the consideration of individuals' ability to pay under the various regulations in this area. My Department is consulting the Attorney General on these issues and will address this situation in light of the advice received. I trust this assists in clarifying the position for the Deputy.