Brendan Ryan (Labour)

I welcome the Minister of State. He is from the same part of the country as I am. I will be careful and declare an interest. My mother has been for about two years a resident in a public hospital for elderly people in Athy, where she receives care that can only be described as superb. I am personally more than a little uncomfortable at the prospect of a substantial sum of money which I had no great objection to being deducted from her income being returned to her. There are other members of my family so I will not make silly statements about what should or should not be done with the money but no one can rationally object in principle to people who get the quality of care that I have seen given to elderly people making a contribution. The idea that this care would be provided by the State and that the children of a person receiving that care could sit back and anticipate a large sum of money provided by the accumulated income of the elderly person is not something I would support.

There is a need for balance. In this country we need a guarantee that when old people need proper institutional care, it can be provided for them at a high quality and within a system which does not threaten to bankrupt their families and is not essentially determined by income. A number of Senators adverted to greedy people who may be queueing up. There may well be some such people. I do not think that anyone who articulately defends the profit motive should ever be too shocked when greed manifests itself in other areas. However, I have also seen extraordinary quality of care of elderly parents by children over years and we should not leave that off the record.

I have a couple of questions which I would like some Minister to answer. Was the Government advised by the Attorney General that the legislation subsequently rejected by the Supreme Court was constitutional? I do not know of any lawyer outside the Attorney General's office who had much doubt that the legislation was in all probability unconstitutional. Funnily enough, I do not share Senator O'Toole's view on the property provisions of our Constitution. They have been used as an excuse by governments for not doing things. Although the Supreme Court accepted the 20% provision of social and affordable housing, it has always said than an uneven and unfair attack on some people's property rights, which is not based on a fair position, is not legitimate. The property clause of our Constitution has never been an issue. What has been at issue is the conservatism of various Governments who have used it.

There is a more fundamental question involved. How did something like this happen? I agree that it is not fair to suggest it is all the fault of the Tánaiste, nor is it fair to suggest it was all the fault of the previous Minister, or of the Minister before that. What is of immediate concern is how this was allowed to run on after the Ombudsman sometime in 2002 produced a long, detailed report on another aspect of nursing home subventions, out of which the Department of Health and Children comes very badly. I will cite small parts of it to make it clear what the Ombudsman of the time said. He indicated a Department that was not functioning properly, which was indifferent to or in some cases ignorant of the law and which on one occasion decided that there was no point in telling health boards that a particular regulation was illegal because they would have no money to remedy the illegality, so it was better not to tell them at all.

This report was issued three years ago. I will give a flavour of it. The Department was criticised for many things and was given the opportunity to reply. One of the Department's more astonishing assertions was to dispute the view that the health Acts convey a legally enforceable entitlement to hospital inpatient services. The Department got involved in what I can only describe as a Jesuitical distinction between eligibility and entitlement, which the Ombudsman correctly rejected. A succession of such comments about the Department and how it dealt with things runs through the report.

Page 71 of the report gives a further flavour. In a general address about the system, the Ombudsman talks of the difficulties the Houses of the Oireachtas face in attempting to monitor the growing mountain of regulations and other secondary legislation, the weakness of the links between the two separate legislative processes and the difficulties faced by Members of the Oireachtas in feeding into the administration in a formal way their concerns and those brought to their attention by their constituents. All through this report——