Mary Harney (Dublin Mid West, Progressive Democrats)

I am pleased to have an opportunity to address the House concerning the recent Supreme Court judgment on the Health (Amendment) (No. 2) Bill 2004. As the House is aware, for the past 50 years, people in long-term institutional care have made a contribution towards their shelter and maintenance. That principle of making such a contribution has been upheld by the Supreme Court. Those aspects of the Bill that provide a legal basis for doing so were found by the Supreme Court to be constitutional.

The Supreme Court did not find unconstitutional the retrospective nature of the legislation under Article 15.5, which deals with retrospective legislation, making something unlawful that was lawful at the time. The court did not strike the legislation down under that provision but stated that it was unconstitutional because it infringed on the property rights of the persons in question. The court argued strongly that if someone is to take away one's property rights, it can only be done if the people involved are compensated. The only time it would be constitutional to remove property rights without paying compensation would be if it were to cause, in the words of the court, "disequilibrium in the public finances". The court held that a sum of €500 million would not cause a disequilibrium in the public finances, given that the health spend for 2005 will be €11 billion. That is the position that has been adopted by the court and we must now act on foot of that decision.

At least we now have legal clarity on a matter that had been allowed to fester since 1976. The genesis of the difficulty goes back to a Supreme Court case, which was an appeal of a High Court case, namely, the Maud McInerney case. Ms McInerney was an elderly resident of Crooksling Hospital, Brittas, County Dublin. She succeeded in her Supreme Court challenge to a High Court decision that because she was fully eligible under the 1970 Act, she did not have to pay any contribution towards her care. At the time, the then Minister and the Government brought in a regulation to give effect to the Supreme Court's decision. That regulation was certainly in order but at the same time they issued a circular to all health boards stating that they could withdraw medical cards from people in long-term care since their medical needs were being met. That meant, therefore, that they were not fully eligible and they could go on to charge them. The Supreme Court has now held that there was no legal basis for doing so.

Last week, I stated in the Lower House that I first became aware of the problem in November when I consulted the Attorney General. He told me there was a legal problem and that we could not continue to make these charges because we had no legal basis for doing so. Until very recently, I had always felt that these charges were levelled in good faith. I now know from documents that have come to light in the context of John Travers' report and, indeed, of the Supreme Court's decision that going back to 1978, there was strong legal opinion, which was clearly stated, from a former Chief Justice, Mr. Ronan Keane, and Mr. Thomas McCann, SC, that there was no legal basis for imposing these charges and that they should not continue without a legal basis. Therefore, the charges continued for almost 30 years without a legal basis. I cannot now stand over my assertion in December that the charges were levelled in good faith.

In December, I announced the appointment of Mr. John Travers to examine why this had happened, why it went on for so long, who was aware of the illegal basis on which this was done and what efforts were made by the Department of Health and Children to seek level advice and rectify the situation. I gave Mr. Travers terms of reference which included looking back on what had occurred, making recommendations on how we can go forward and what changes we need to put in place to ensure the State is not exposed in this fashion again as regards any charges it might impose on citizens. I gave Mr. Travers until 1 March 2005 as a deadline for the completion of his report, although I explained when I met him in December that if he required more time I would obviously give it to him.

Last Friday, I met Mr. Travers for the first time since I appointed him because he had interviewed a number of Ministers, former Ministers and officials of the Department of Health and Children. I am reasonably optimistic that I will have the report within the specified timeframe, although if any inferences or references are made to individuals they are entitled, as a matter of natural justice, to see what is being said about them before the report is finalised. Clearly, Mr. Travers will be going through that process as everyone else does. Subject to that, however, I hope to have the report in the next couple of days, following which I will take it to Government and publish it.

This sorry mess, which will cost us at least €500 million and perhaps much more, need not and should not have happened. Yesterday, the Government approved legislation to make this legal going forward because every week that this charge cannot be levelled costs us €2.5 million. That is €2.5 million that otherwise could be spent on health services. In all, over €100 million is raised annually from this particular charge.

We must also pay back the moneys that were collected illegally. The Government has established a Cabinet sub-committee, comprising the Taoiseach, myself, the Minister for Finance and the Attorney General, to examine the mammoth task of how we will set about making these repayments. We must pay everybody back for six years, including the estates or personal representatives of deceased persons. In addition, we cannot apply the Statute of Limitations to anybody of unsound mind. Therefore, those in mental health institutions and intellectually disabled people in institutional care must be paid right back to the start.

I want to avoid a situation where citizens — particularly, vulnerable, elderly people in long-term care — are forced to take a legal route to try to get their money back. Subject to Cabinet approval, therefore, it is my view that we need to set a mechanism in place to make it easy for people to apply to have their money returned. Clearly, those people who can be identified will be, but in many parts of the country we do not have good records — certainly not going back as far as we will have to concerning those who were in institutional care. We have to make it as easy as possible for those persons and their families or representatives to be able to access that to which they are entitled.

As a result of Government decisions, I hope to be in a position shortly to explain publicly the format of the scheme that will be put in place. Not only do I want to make it easy for the individuals involved, but also I want to avoid unnecessary litigation. I want to avoid millions of euro of taxpayers' money going unnecessarily to lawyers, which is what will happen if we do not put a fair, transparent and honest scheme in place.

I am happy to have the opportunity to address the House on this matter. I thank Senators for having raised the issue, which is of major concern. The sum of money involved could pay for the construction of a new children's hospital in Crumlin, a new Mater Hospital and probably at least one other hospital. That is what we are talking about — it is a vast sum of money. Most people have acknowledged that making a contribution towards shelter and maintenance, which citizens in the community have to look after for themselves, is not unreasonable. As I have said, everybody that has been in Government for the past 50 years has abided by that principle, which is not one that has been challenged very often.

Yesterday, the Government cleared the legislation to make the position legal and we will publish it later this week. It is incorporated in the legislation that will provide for doctor-only medical cards. It made sense to do it as quickly as possible because those resources are badly needed in the health service. Most people agree that a contribution should be made. The maximum contribution that can be taken is up to 80% of the non-contributory pension. Heretofore no maximum limit was set in legislation.

My colleague, the Minister of State, Deputy Seán Power, will take over later. I apologise to the House as a Cabinet sub-committee on health, in addition to the sub-committee relating to this matter, will meet this afternoon. I am not in a position to stay for the duration of this debate although I will be present for the main speakers from the Opposition. I do not wish that to taken as a discourtesy to the House. It is just not possible for me to stay for the entire debate because of two important Cabinet sub-committees that will sit this afternoon.