Brendan Ryan (Labour)

I am quoting from the report on nursing home subventions, An Investigation by the Ombudsman of Complaints regarding Payment of Nursing Home Subventions by Health Boards. I apologise for not giving the name of the report. It was an omission on my part.

I will quote further from the report because there is a point which needs to be made. In the last paragraph on page 68 the Ombudsman states that he had already raised the issue of what appears to be a growing practice within Departments whereby Ministers tend not to put their views or instructions explicitly in writing: "The views of the Minister may be conveyed verbally or via his or her private secretary", and so on. The Ombudsman was identifying precisely the mess now inherited by the Tánaiste.

In the following paragraph there is a suggestion of humour about the dialogue the Ombudsman notes between the Department of Health and Children and the Department of Finance, one of my favourite bêtes noire in this House: "This clearly falls into the category of controllers talking to the controls. As often happens, this dialogue was concerned largely with post hoc damage limitation so far as the financial costs were concerned." The report continues in that vein with the Department of Health and Children being accused of extraordinary delays. I recall that the Ombudsman wrote to the Department in the middle of one year and it was nearly October of the following year when the Department responded.

The fundamental problem regarding this issue is that it appears the Department of Health and Children is so badly managed that it cannot even ensure that it operates within the law and that it deals with the statutorily appointed Ombudsman looking after consumer complaints. It appears that it cannot even give advice to health boards, or could not, about what was legal or illegal and that it got itself involved in the most convoluted reasoning in trying to explain what was absolutely unjustifiable. That is what I hope the Travers report will identify — how we are to organise a management system in that huge Department which is based on transparency, accountability and the law and where regulations are not turned inside out in the interests of meeting budgetary targets. No one is saying, however, that the service should be provided without a contribution from users.

The Department of Health and Children introduced a blanket provision relating to medical cards for people over 70. My party made a fuss about this at the time but I am of the opinion that it was a good idea. However, the Department introduced the provision without a proper analysis of the current costs. Cognisance was not taken either of future costs, particularly regarding the fact that everyone over 70 would have an entitlement, as of right, to nursing home care because they possessed medical cards. I do not know how the Department, having been warned by the Ombudsman about sloppy interpretation of legislation and the need for clarity, managed to avoid reflecting on this issue and the dodgy nature of some of the things that occurred, particularly after it was issued with a 90-page report by the Ombudsman three years ago.

This matter involved money being taken from people and extraordinary practices. However, it also involved a view that it would be easier to do this — I do not make my comments in a political way — to people who are vulnerable, less articulate and less able to defend themselves than it would be if one tried to do it to those who young, vigorous and in the whole of their health. If it had been done to younger people, protests would have arisen so fast that action would have been taken.

When they enter nursing homes, most elderly people are, by and large, glad to be there because their health has deteriorated and their children are mightily relieved that their parents will be cared for in a proper manner. The last thing anybody is going to do is raise a fuss. That is why it is the function of law officers, the Office of the Attorney General and the law officers of health boards to offer scrupulous, detached and dispassionate legal advice. It is manifestly clear that such legal advice would have immediately indicated that, under the existing legislation, money for payment for the services being offered could not be deducted from anybody in possession of a medical card and that they would be entitled to such services without payment.

The policy to which I refer may be unwise and there is, in my view, a case to be made in that regard. On two occasions during the past three to four years, however, it has focused attention on the fact that this is a not so glamorous area of health care and that is going to become an expanding consumer of the resources of any health budget as a result of the need to provide proper and dignified support for an increasingly aging population. If we do not address this matter and continue to deal with it in the way, as outlined in the Ombudsman's report, the Department tackled its problems, we will end up with a succession of messes. If the Government decides that we cannot afford to make provision for the elderly, it should be indicated in explicit terms that people will not get State subventions. I hope it does not make such a decision because it would be cruel to do so.

To pretend to operate a system of universal eligibility while imposing charges here, restrictions there and quantitative restrictions somewhere else is to fly in the face of good policy-making. This issue is about people who have been misled and who had money taken from them without there being a proper legal basis for doing so. It was inevitable that the Supreme Court would find they are entitled to have this money returned to them. The State will incur huge costs in doing so. I hope the lesson will be learned, now and forever, and that every Government Department will give consideration to regulations which involve money and costs and ensure that their practice is consistent with legal advice. Where they are not sure this is the case, they should be encouraged to seek legal advice in order that another mess of this kind will not arise.

The Ombudsman's report to which I referred earlier showed that there was already a mess in the Department of Health and Children. This mess should have been sorted out but that was not the case. As a result, we are now faced with an even bigger mess. I hope that, on this occasion, the structures in the Department of Health and Children will be sorted out and that other Departments will be found out in respect of their charges. It is only a matter of time until somebody challenges the so-called local contribution charged by primary schools. People are entitled to free primary education under the Constitution. How is it possible then to justifiably extract a payment from people for their children's education? I am merely issuing a warning in that regard.