Liam Twomey (Wexford, Fine Gael)
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Question 2: To ask the Tánaiste and Minister for Health and Children the cost of adopting a policy involving the repayment in full of all illegal charges to patients who are still alive and invoking the Statute of Limitations in regard to the estates of patients who are deceased, in relation to the illegal charging of long stay patients; if she has received legal advice that such a course of action is sustainable; and if she will make a statement on the matter. [9717/05]

Liz McManus (Wicklow, Labour)
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Question 3: To ask the Tánaiste and Minister for Health and Children the number of calls received to date by the national repayments scheme helpline; the information available to her Department regarding the extent of the potential cost to the Exchequer of the illegal charges; the progress made to date by the Government committee considering the question of repayments; if a decision has been made regarding whether the Statute of Limitations will apply; when the committee will produce a report; and if she will make a statement on the matter. [9542/05]

Mary Harney (Dublin Mid West, Progressive Democrats)
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I propose to take Questions Nos. 2 and 3 together.

My Department is currently studying the Supreme Court judgment with regard to repayment of charges for publicly-funded long term residential care in detail and will take on board all the consequences for policy and law arising from the judgment. A special Cabinet sub-committee comprising the Taoiseach, Deputy Bertie Ahern, the Minister for Finance, Deputy Cowen, the Attorney General, Mr. Brady, and me, has been established to consider the issue of repayment in light of the judgment. Full details of a repayment scheme will be announced as soon as possible and it is the intention to make repayments as automatic as possible.

The Department is currently in discussions with the Health Service Executive, which assumed responsibility for the delivery of health and personal social services on 1 January 2005 regarding the appropriate mechanism of repayment that is efficient and non-contentious and without the requirement for going through a legal process.

The HSE has now provided an estimate of €532 million for the total overall cost of repayments for the six year period 1999-2004. The cost of repayment in full to patients who are still alive and invoking the Statute of Limitations in regard to the estates of patients who are deceased is currently the subject of discussions with the HSE regarding the potential costs to the Exchequer. The HSE has also now provided an estimate of 299,249 persons as being eligible for a refund for the period 1976-2004.

The total number of calls the national repayment scheme helpline dealt with up to 21 March 2005 was 7,044. The national repayment scheme also received 4,263 written correspondences as well as 514 e-mails.

The Supreme Court decision indicated that the State has available to it the Statute of Limitations defence, i.e. a six year limit. The Attorney General has been in touch with me regarding the issue of the Statute of Limitations and I am in continuous discussions with him in this regard.

Liam Twomey (Wexford, Fine Gael)
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Will the Government return to the Supreme Court to test the legality of invoking the Statute of Limitations? Has the Government considered doing so? The Supreme Court judgment takes into account the rights of the State's limited liabilities by reliance on the Statute of Limitations. Has the Tánaiste received definitive legal advice from the Attorney General on this matter?

The Tánaiste quoted a figure of €532 million to cover all repayments for the six year period. The 2001 legislation was pivotal in reactivating this issue within the Department of Health and Children. Can the Tánaiste give us some idea of how much of the €532 million relates to the 2001 legislation? That is pivotal to what the former Minister for Health and Children, Deputy Martin, said he knew nothing about. Ministers of State in his Department considered it very serious but we were not made aware of the substantial political importance involved until the Tánaiste made her announcement in the Dáil Chamber.

What is so important about the South Eastern Health Board legal advice that the Tánaiste is now attempting to cover up? Does this cover-up relate to court cases taken by patients in that health board area or does the legal advice relate to court cases pending from health board officials or other State employees in that area? We need clear answers because this issue is quite substantial and the Tánaiste is fudging on it every time we ask about it.

I would also like the Tánaiste to point out from where the figure of €1.15 billion came. This figure was given to the Supreme Court by counsel for the State and relates to charges going back to 1976. The Tánaiste has not given a breakdown of the figures. A Cabinet sub-committee must surely at this stage have some better working figures than merely the figure of €532 million. Can the Tánaiste supply a breakdown of these figures? How much of it relates to public nursing home charges, to long term psychiatric patients, to patients with intellectual disabilities, to patients who cannot represent their own interests? Can the Tánaiste give a more detailed breakdown of the figure of €532 million, which covers the six year period?

Before the Tánaiste leaves the Chamber today, can she clarify the issue regarding the Statute of Limitations and how far the Government has gone in considering invoking it?

Mary Harney (Dublin Mid West, Progressive Democrats)
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Regarding the Statute of Limitations, the period is six years. While I have not got definitive legal advice from the Attorney General, we are still in the process of drawing up a memorandum for Government that I hope to take to the Cabinet meeting on 6 April so that we can make a decision on how to proceed. Trying to assemble all the information and thereby get a definitive opinion from the Attorney General has been a mammoth task. However, I have already put on the record the preliminary advice from the Attorney General that we cannot use the Statute of Limitations against anyone of unsound mind. Furthermore, for anyone now alive to seek to prove that he or she was of unsound mind would be an impossible task, as the Deputies can imagine, and a very unfair task to ask anyone to undertake.

I have been told that there are 22,000 people alive whose estates are affected, so that most of those affected have passed away. Regarding those still alive, the breakdown between those people in what I might call mental health institutions and those in the category of the elderly seems to be 50-50. That is my understanding.

The figure of €1.15 billion was the Department's estimate before the Supreme Court of what we raised since 1976. That seems to be the approximate figure for what was raised by way of charges for the people involved in publicly funded beds, whether in county homes or in psychiatric or mental health institutions. However, when it comes to repayment, the issue of interest arises. That is why some of the figures we are now discussing are somewhat higher than the figure of €1.15 billion. One has to consider interest and what someone could have earned if he or she had put the money in the post office or somewhere else. They are some of the issues that arise.

I assure Deputy Twomey that from the time I became aware of this matter, the last thing I have done is to fudge. I appointed John Travers because I was not satisfied with the report given to me, which I brought to the Cabinet. I only became aware of the deficiencies in that report 48 hours after I received it. I asked John Travers to look at all the issues and documents and give me a report so that I could establish what has happened and why this matter had not been dealt with in the past. That is what his report sought to do.

I have made many documents available, which were not even in the Travers report. Last week I made available some documents including those from the line division in the Department. I also gave an undertaking to make other documents available. Is is very rare for governments to release the legal advice they are given, but I can supply documents of a legal nature only if they do not prejudice any upcoming court cases. There are a number of cases pending. Most of them relate to the nursing home issue, private institutions and nursing home subventions, and they are intertwined in the legal advice the South Eastern Health Board had. That is why the Attorney General has strongly advised me that I could jeopardise the proceedings of this State if I were to put that advice into the public domain. As a responsible Minister I must take that advice.

Liam Twomey (Wexford, Fine Gael)
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What about the legal advice?

Séamus Pattison (Carlow-Kilkenny, Labour)
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I must call Deputy McManus.

Liz McManus (Wicklow, Labour)
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Perhaps the question Deputy Twomey wanted to ask is the same as mine. To what cases is the Minister referring? The suspicion is that the legal advice is deliberately being kept hidden, even from the Oireachtas committee charged with the duty of examining the issue in terms of administrative and legislative change. The Minister is giving us a job of work to do without providing the tools to do the job when she refuses to release this information. Will the Minister specify the cases about which she is talking that lead to this difficulty? Until we hear those details she will not convince us 100%.

The Minister knows who these people are because they are in public institutions. Will she describe for us the mechanism for payment? Will she discriminate in favour of people who are alive rather than those who have passed on? Will she publish the legal advices relating to the scheme when it is prepared and has passed through Cabinet? It would be helpful if she provided the details of the legal back-up. We have had to argue the case about the unconstitutionality of a previous Bill. The Minister must accept that it is important that anything done now is put to the test by publication so that we may all have confidence in it.

With regard to what is available to us in the Travers report, the legal advice of the then South Eastern Health Board is censored and delivered to us in a very truncated form. However, according to the report, that advice clearly states the only conclusive solution is the introduction of a comprehensive legislative framework etc. We know that two Ministers knew what was going on and that the Taoiseach was informed about it. The current cost is considerably higher because the Minister responsible did not live up to his responsibilities.

Does the Minister agree there is a major question mark over her predecessor? What the Travers report said about the legal advice of the then South Eastern Health Board cannot be gainsaid. No Minister could stand over total ignorance when such information is available to him and when advisers, civil servants and Ministers of State were at the meeting. Has this not added to the costs in a manner that raises a question mark over his competence to be in Cabinet?

Mary Harney (Dublin Mid West, Progressive Democrats)
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With regard to the cases to which I referred, there was a lawyer from Cork on the radio a few weeks ago, who may be associated with one of the parties in the House, who has taken on a number of cases on the nursing home and private nursing home issue. That matter was also dealt with in this advice. He is not the only one, but he is on public record as indicating that he was taking cases. I have been told by the Attorney General that there are a large number of other cases pending.

I will abide by and respect the decision of the Supreme Court in the manner in which we will set about making the repayments. However, I must be honest and admit that I am keen to use the statute of limitations if possible because this is an enormous bill. As the Travers report made clear, there was broad support for the concept of charging for shelter and maintenance going back to 1947 and no Government in office since then saw fit to remove the capacity to charge for shelter and maintenance. The tragedy is that this was not legislated for.

On the issue of legal advices, as the report indicates, in 1978 there was clear legal advice from Ronan Keane and Thomas McCann to the then Eastern Health Board which said that legislation was necessary. Even going back that far, it was clear legislation was necessary. It is a shame that the legislation was never passed to make legal a very good principle, which is what we are talking about here.

The meeting in December 2003 made the right decision and the people who attended that meeting cannot carry the can for anything wrong that happened. The issue was raised by the CEO of the then South Eastern Health Board. Note was taken of his concerns and a commitment was given that legal advice would be sought from the Attorney General. Subsequent to the meeting a group was put together and it drew up a document and a letter to be sent to the Attorney General. That letter never issued. The minutes of the meeting of the following March — when the next meeting took place with the CEOs and the management committee — state that legal advice was being sought, which was untrue. The next meeting was in October 2004 where it was stated that legal options were being explored, which again was untrue. To be honest, the situation is rather bizarre.

If we could have legislated for this matter a number of years ago, the mess we are now in would never have happened. We will seek to make it as easy as possible for people to go through the scheme we will establish rather than pursue the legal route. I want the taxpayers' moneys that we will pay to go to the elderly and their needs, not to the interests of the legal profession, with all due respect to that profession. I want to make it as easy as possible for people to access the scheme. Now that some of the issues are becoming clearer, I hope to be in a position to bring that memorandum to the Government for 6 April so that we can make a decision and a subsequent public announcement.

Liam Twomey (Wexford, Fine Gael)
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Why is this legal document being withheld from Members when it was widely circulated among the health boards in 2003? It is not Government legal advice but legal advice sought by a health board on an issue with which it was dealing and subsequently circulated to all health boards. The Minister tells us we cannot have this information. With regard to the Minister, Deputy Martin, and the Department of Health and Children, we have seen no political responsibility. We feel we have some political responsibility and that we should have that information if it is so widely available to everybody else.

Mary Harney (Dublin Mid West, Progressive Democrats)
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It is not widely available, but available under privilege. They were all at the same meeting and all facing the same cases. The advice they were getting from the Department for many years, going back to 1978, was that they should not contest. Therefore, if one long-term bed occupant had a lawyer who could help him or her to take a case, he or she would no longer be charged while somebody not so fortunate in the bed beside him or her was charged in all those years. Besides the legal issues involved here, there are significant inequality issues that are unacceptable.

There is no doubt on the reading of the legal advice that the long-term charges issue should have been put on a statutory legal footing. The report makes that clear. However, the legal advice Governments must follow is the legal advice of the Attorney General. It is remarkable that his advice was never sought over almost 30 years. There is no evidence anywhere to suggest, as can be seen from the Travers report and even going back to 1976 when the famous circular was issued, that the Office of the Attorney General was consulted. This is what I find extraordinary. It was almost in the ether that this was fine and the attitude was that because we had always done it, we should continue to do it. If there is a lesson to be learned, it is that we should not ignore legal advice or the need to seek it to cover areas where one is raising substantial amounts of money, as we are doing through this route.

Liz McManus (Wicklow, Labour)
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Surely that is not true. If former Minister, John Boland, was able to bring forward a proposal to Cabinet, presumably he had taken advice from the Attorney General in some shape or form. Has the Minister asked the person who took over from John Boland as Minister, the Ceann Comhairle, Deputy O'Hanlon, why the battle was not resolved at that point as the Minister states it should have been?

The Minister mentioned people suffering from mental illness. Are people in long-term care with physical disabilities included in the provisions?

Mary Harney (Dublin Mid West, Progressive Democrats)
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The people included in these provisions are the people to whom the Health Act 1970 applies, people regarded as fully eligible, namely, medical card holders. That is the first time the concept of full eligibility was introduced. Those with physical disabilities may well be included. I am not certain that everybody with a physical disability would incur a maintenance-shelter charge.

I understand that when a memorandum came to John Boland, he stated in his own handwriting that he wanted to include the charges issue. There is no evidence in the Department or elsewhere that advice was given to him to do that. The view was taken that perhaps because of his legal background or his experience on a health board, he was aware there was a problem around this issue. He was only a caretaker Minister for a couple of weeks, which is remarkable. The same memorandum went to the subsequent Government and it made a decision to introduce the elements of the budget which introduced charges for outpatient and inpatient services.

With regard to this issue, which was part of the decision sought, that Government said it would be done as relevant and that the Taoiseach, and the Ministers for Finance and Health and Children would meet to discuss the matter. There is no record of that ever happening but I have not spoken to anyone about that.