Brian Lenihan Jnr (Dublin West, Fianna Fail)

I wish to deal with three areas — first, the provisions of the Bill; second, the scheme of repayments the Government will put in place; and third, the issues arising from the handling of this question within the Department of Health and Children.

Just as the Tánaiste placed on the record of the Lower House yesterday a number of documents as an annex to her prepared remarks, I am also placing on the record of this House today the same documents as an annex to my remarks. I am putting before the House all the facts of which I am aware. This the only way each of us can form clear and fair assessments.

The purpose of this Bill is to provide a legal framework for the charging of patients in long-term care in health board institutions and publicly contracted beds in private nursing homes. The Bill will establish a sound legal basis for the long established practice of health boards in charging for the costs of maintenance in institutions providing long-term care.

Most people accept that it is fair and reasonable that those who can afford to contribute to the cost of their long stay care should do so. This has been implemented by successive Governments and by Ministers for Health from all parties in Government since 1954.

The charges raised are used to support the provision of care for those in long-term residential care. These charges currently generate approximately €100 million in revenue for health boards each year. The cost of long-term care, even of the shelter and maintenance part, is clearly more than this amount. There is no doubt that the loss of this income would have an adverse effect on our ability to provide the health and caring services our population needs.

I am attaching as one of the annexed documents a brief background note on the history of the legislative basis on which charges have been raised up to now. Similar information is found in the report of the Secretary General of my Department, prepared at the request of the Tánaiste for the Government meeting on Tuesday.

The essential point is that the basis for charges made since the McInerney Supreme Court judgment of 1976 arose from a circular issued by the Department of Health to individual health boards. This circular, which is included in the annexed documentation, authorised a practice by which the chief executive officer of a health board could regard patients as not meeting the criteria for full eligibility while being maintained in long-term care, on the basis that the necessary general practitioner and surgical services were being provided for them.

The withdrawal of medical cards and full eligibility in this way was taken to enable a charge for inpatient services to be raised under the 1976 regulations, which provided for charging for persons other than those with full eligibility.

The extension, in 2001, of full eligibility to all persons over 70 years of age, irrespective of means, was not the reason the practice of charging in this way was found to be without a sound legal basis. The flawed basis for charges for anyone with full eligibility goes back to the 1976 circular which continued to be implemented after the 2001 decision. I will return later to developments since 2002 on how the legal issues around this were handled when I address departmental management issues.

I wish to outline the scope and principal provisions of the Bill. The Bill provides for an amendment to section 53 of the Health Act 1970 as follows: To replace the existing enabling provision in sub-section (2) which provides the Minister with discretionary power to make regulations, by a provision which requires the Minister to make regulations in order to impose charges in relation to all persons, namely, those with full and limited eligibility; to insert a new sub-section (3) which specifies categories of person exempted from charges imposed under sub-section (2); to insert a new sub-section (4) which empowers the chief executive officer of a health board to reduce or waive a charge, having regard to the financial circumstances of the person and with a view to avoiding undue financial hardship for that person. It is intended that the regulations will impose a maximum weekly charge of €120, which approximates to 80% of the weekly rate of the maximum level of non-contributory old age pension. The regulations will also make clear that individuals are to retain a minimum amount of pocket money of €35 per week; to insert a new sub-section (5) to provide, among other things, that charges levied under section 53 of the 1970 Health Act, prior to 14 December 2004, are and always have been lawful. My Department is satisfied, in light of legal advice available to it, that it is constitutional and in accordance with the European Convention on Human Rights and Fundamental Freedoms. The Department has received advice from the Office of the Attorney General, which includes the opinion of Dr. Gerard Hogan SC, a leading expert in Irish constitutional law; to insert a new sub-section (6) that the retrospective regularisation provision of the new sub-section (5) does not apply in the case of a charge which is the subject of civil proceedings instituted on or before 14 December 2004 for the recovery of the relevant charge; to insert a new sub-section (7) to provide that the provisions of the new subsection (5) do not affect any other ground which may be raised in civil proceedings to debar the recovery of the relevant charge; to insert a new sub-section (8) to make it clear that any current regulations in force remain in force. This is to make it clear that the Bill does not interfere with other existing regulations; to insert a new sub-section (9) to provide that the charges shall only apply for in-patient services after a period of 30 days or periods aggregating 30 days within the previous 12 months. The new sub-section (9) also limits the weekly charge to an amount that does not exceed 80% of the maximum of the weekly rate of old age (non-contributory) pension; to insert a new sub-section (10) to clarify that the period of 30 days referred to in subsection (9) begins to run immediately the person concerned is provided with inpatient services; and to insert a new sub-section (11) to define "inpatient services" for the purpose of charges made.

The provisions of the Bill will implement the Government's policy which, in summary, is as follows: It is reasonable that charges should be made; charges must be on a sound legal basis; and clarity must be brought to charges made in the past so as to avoid needless litigation and potentially large instability in health care funding.

As indicated by the Tánaiste yesterday, and as I have reiterated at the beginning of my contribution today, where mistakes are made, they should be recognised and there should be redress if at all possible. The Government recognises that a mistake on the legal basis for charges has been made for 28 years. Notwithstanding the fact that the policy had consistent support and that persons benefited from their payment, the Government believes that some repayment should be made because a mistake was made.

It is clearly beyond our financial and administrative ability to repay all charges since 1976. We have decided, therefore, by way of a goodwill gesture to make repayments to people with full eligibility who have paid charges to date. I expect that approximately 20,000 people will benefit from this repayment. Each person will receive a repayment of up to €2,000. These payments will be made automatically, where possible, and as soon as possible in the new year. We will also advertise to allow persons to apply for this payment. This is to ensure that no person who has made payments is left out or is unduly delayed in receiving payment. For example, there may be those who previously had been in long-term care but have since left or moved to another setting and records may in some cases not be as readily available as is normally the case.

The Government believes this is a reasonable and fair way to recognise that a mistake was made. Those now in long-term care will benefit directly and exclusively. Administrative and legal costs will not absorb any part of the repayment which will be done speedily and fairly.

I will now address how this issue was handled at various times since 2002 by my Department and in its work with health boards. At the end of 2002, the South Eastern Health Board, in the context of a number of claims about charges by and against the board, obtained legal advice on a range of issues related to long-stay care in both public institutions and private nursing homes. An extract from the legal advice was handed to the Department at a meeting with the South Eastern Health Board on 11 March 2003. I am informed that the broad content of the advice was also made known by the South Eastern Health Board to the chief executive officers of the other health boards.

The relevant aspects of this advice were considered within the Department over the following months. However, a decision was not made during this period. The charges for long-term stays in public institutions were discussed in some detail at the end of year review meeting between the Department's senior management and the chief executive officers of the health boards on 16 December 2003. I am laying the minutes of that meeting before the House. The meeting concluded that it would be necessary for the Department to obtain a definitive legal assessment as the first step in drawing up legislation on eligibility and charges. Arising from that meeting, a small group was convened within the Department to prepare a position paper on the legal issues surrounding charges for long-stay patients in public institutions. This position paper was drawn up at the end of January of this year, as was a letter to the Office of the Attorney General requesting legal advice signed by the Secretary General. Unfortunately, this letter was not sent at that time.

Following questions on the issue from Deputies Kenny and Perry in the Dáil and elsewhere last October, the Tánaiste immediately sought legal advice from the Office of the Attorney General. The legal advice provided by the Attorney General on 5 November made it clear to her that new primary legislation would be required urgently to underpin a policy that persons can be required to contribute to their costs of maintenance, namely, shelter, food, bed and clothing, in a public institution, or a contract bed in a private setting.

In light of that advice, work began immediately in the Department on the preparation of the necessary legislation. The Tánaiste received further advice on 8 December from the Attorney General on legal problems arising out of the continuance of such charges. On foot of that advice, a letter was issued on the Tánaiste's instructions to the chief executive officers of the health boards and the Eastern Regional Health Authority asking them to immediately cease making such charges, pending the introduction of amending legislation. The health boards confirmed last Friday, 10 December, that they had taken the necessary steps to do so. Drafting of the legislation continued between the Department and the Attorney General's office, and was completed so that the Tánaiste was in a position to bring a memorandum to Government this Tuesday, 14 December.

These are all the facts of which I am aware which have led to today's debate. The Tánaiste made clear in the Dáil yesterday that one of her immediate objectives was to place on record all the facts she knew. As regards requests for copies of the relevant legal advice to be made available, it remains the long-standing policy of Departments not to release legal advice as this can be prejudicial to the State's ability to defend litigation in the courts.

It is clear that serious issues arise from the manner in which this important legal issue was handled in the Department of Health and Children. The Government proposes to deal with the charges by new law and by making ex gratia repayments. There is also a responsibility on us to deal with public management and administration issues. The Tánaiste has asked Mr. John Travers, a retired head of Forfás with a distinguished career in the public service, to examine the management of this issue in the Department and the reasons the Attorney General's advice was not sought at the earliest possible time. The Tánaiste will ask him to identify lessons that can be learned and applied from these events, in the interests of more effective public administration in the Department of Health and Children and elsewhere. She intends to give him the greatest latitude possible for recommendations in this regard and expects to receive his report by 1 March 2005. The Tánaiste had further stated that she will publish this report.

In the Dáil yesterday, the Tánaiste indicated that she is not interested in blame but rather only in achieving excellence in public administration in the interests of patients, the public and staff. There is every reason for the Department of Health and Children to strive for and achieve excellence, particularly at this time of change when its role will be more focused on policy, legislation and evaluation. We look forward to this report helping us to achieve that aim.

This legislation will bring clarity to an area which has not been operating on a sound basis for almost three decades. This is a genuine attempt to correct that flaw so that charges for long-term care will now have a sound legal basis. This Bill will ensure that the income from charges will continue to support the provision of quality services to those in long-term care.

If we do not allow this funding to be retained, the loss of resources for the health service is estimated to be approximately €8 million to €10 million per month. It has been accepted that these charges, as contributions to the cost of care, are fair and reasonable. I commend the Bill to the House.

The documents annexed to my speech include a background note on the history of the legal basis for charges; a Department of Health circular dated 1976; a report of the Secretary General dated 13 December 2004; and the minutes of a meeting between the Department of Health and Children and the chief executive officers which took place on 16 December 2003. I apologised in respect of my attendance at that meeting.