Alan Shatter (Dublin South, Fine Gael)
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Question 5: To ask the Minister for Health and Children if her attention has been drawn to the fact that bereaved pensioners over 70 years who automatically qualified for the medical card prior to the enactment of the Health Act 2008 and whose spouses died prior to 1 January 2009 will not benefit from the exemption which allows a medical card to be retained for a three-year period following the death of a spouse where their income exceeds €700 per week and is below €1,400 per week and that the three-year concession only applies to those bereaved as and from 1 January 2009 which adversely affects those bereaved in the years 2006, 2007 and 2008; if she will take action to amend this situation; and if she will make a statement on the matter. [6473/09]

Mary Harney (Dublin Mid West, Progressive Democrats)
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The Health Act 2008 allows for a surviving spouse of an over 70 medical card holder to retain his or her card for a period of three years provided that the death occurred on or after 1 January 2009, the surviving spouse or partner was aged 70 or over at the time of the death, and the surviving spouse remains within the €1,400 weekly income limit for a couple. After three years, the surviving spouse will be assessed under the €700 single weekly income limit.

I moved an amendment during the passage of the legislation through the Houses of the Oireachtas to ensure a person aged 70 or over would not lose his or her medical card as an immediate consequence of the death of a spouse. My Department examined the options available to ensure the trauma was minimised for an elderly person whose spouse dies. I am satisfied the provision in the legislation offers the best solution from a non-discrimination point of view.

A surviving spouse aged 70 or over who no longer qualifies for a medical card after 1 January may apply to the HSE for a card under the existing net income thresholds which take account of medical, nursing and other relevant expenses. The HSE may also issue a medical card on a discretionary basis if the person would otherwise be caused undue hardship in providing general medical and surgical services for themselves and any dependants. Such people are encouraged to apply to the HSE for a discretionary card. I am satisfied that within the confines of the legislation it is not possible to change what has recently been legislated for.

Alan Shatter (Dublin South, Fine Gael)
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Is the Minister aware that if a person over 70 with a medical card died in November 2008 as a consequence of this legislation, his or her spouse will be deprived of it from 2 March? Does she accept that it is a gross discrimination and grossly unfair that such circumstances arise, especially given that if the spouse had lived until 2 January 2009 his or her widow or widower would have retained the medical card for three years? Where is the fairness, equity or humanity in treating those who were bereaved immediately prior to 1 January 2009 differently from those bereaved this year? Is the Minister aware that as matters are now being administered by the HSE, elderly people phoning the HSE whose income exceeds €700 per week but is below €1,400 per week and whose spouses died in 2006, 2007 or 2008 are being told that they will be deprived of the medical card that they believed they would otherwise retain?

Mary Harney (Dublin Mid West, Progressive Democrats)
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When we debated the legislation in the House I said that it would have been desirable to leave the medical card in such circumstances with all such spouses. However, a number of legal and equality issues arose and it was not possible legally to do that. Unfortunately there are always cut-off points in any legislation. Currently a person in his or her 40s, 50s or 60s whose spouse has passed away is in the same circumstances when the card comes up for renewal within the calendar year. I am aware of the anomaly but I am not in a position, unfortunately and for legal and equality reasons, based on the advice I have received from the Attorney General, to do anything more than is in the legislation.

Alan Shatter (Dublin South, Fine Gael)
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Has the Minister received legal and equality advice from the Attorney General as to the position as it might occur if a person whose spouse died in 2007 or 2008, to whom the three year concession does not apply, took proceedings in the High Court, due to the inequitable application of this legislation? I suggest to the Minister that whatever advice she is getting misses the point that this is a serious unconstitutional discrimination against persons who were bereaved during 2006, 2007 and 2008. Would the Minister acknowledge that when dealing with this issue during the truncated debate that took place on this legislation, she sought to indicate that bereaved spouses, widows and widowers, who suffered a bereavement in the three years preceding 1 January 2009, would be dealt with with some greater care than is currently happening in that she told the House that the practice of the HSE will continue on an administrative basis and it will take all reasonable measures to ensure people in this position are not put at a disadvantage? Could the Minister explain what measures the HSE is currently taking? Is she aware of the fact that only last Friday, the Irish Hospice Foundation called for a change in the legislation in this area, emphasising the detrimental impact it will have on those who were bereaved in the past three years?

Mary Harney (Dublin Mid West, Progressive Democrats)
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As the Deputy is aware, the medical card scheme generally, with the exception of the over 70s, is allocated on an administrative basis. The only legislation is to do with the over 70s which was introduced in 2002. In normal circumstances, when a person passes away, notwithstanding the fact that the income may remain the same and therefore the assessment will be different in a new set of circumstances, the cards are generally left for a period of up to one year, sometimes more. With regard to some of the cases mentioned by the Deputy I would hope it can be done on that basis.

Alan Shatter (Dublin South, Fine Gael)
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Is there any direction to the HSE to do that?

Mary Harney (Dublin Mid West, Progressive Democrats)
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The Deputy asked me a question. This legislation was drafted by my officials with the help of the Office of the Attorney General and the Attorney General in person. Therefore, we sought to be as reasonable as possible. My desire would have been to have left the card but I was strongly advised that for equality and legal reasons, we were not in a position to do so.

Alan Shatter (Dublin South, Fine Gael)
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It is grossly unfair to deprive someone of the card who was bereaved three or four months ago but leave it with someone who has only been bereaved a couple of weeks ago. It is grossly unfair.