Mary Harney (Dublin Mid West, Progressive Democrats)

I am delighted to have an opportunity to discuss the Travers report in the Seanad. I pay tribute to Mr. John Travers for the excellent job he has done in carrying out an evaluation in the Department of Health and Children as to how, for 28 years, legal advice was not sought in regard to long-term charges for people in public institutions. When I asked Mr. Travers to carry out the task, I did so recognising his distinguished career in the civil and public service spanning 40 years. In a very short time, he has examined thousands of documents and legal opinions of the Department of Health and Children, other Departments and some of the health boards. He has done so single-handedly, with the help of one civil servant at the Department of Health and Children, and compiled what is a thorough and comprehensive report. It is a model of how we can have facts clearly assembled quickly and inexpensively in comparison to other routes we often use to discover information, which can take years and cost a considerable amount.

I intend to provide a brief history, which is outlined in the report, of how this matter arose. I will then deal with the conclusions. The most important issue for me is what we do for the future. Institutional assistance regulations were introduced in 1954 on foot of the Health Act 1953. These institutional assistance regulations provided for people to be charged for shelter and maintenance and that persons in public institutions could be charged regardless of whether they had a medical card.

The Health Act 1970 was the only major reform before the Act we passed through the Oireachtas before Christmas last. The 1970 Act has been the main legislation governing the health services for the past 30 years. In that Act, for the first time, the concept of full eligibility and limited eligibility was defined. Full eligibility was essentially defined as referring to people with medical cards. The report refers to the 1970 Health Act which defines inpatient services as "institutional services provided for persons while maintained in a hospital, convalescent home or home for persons suffering from physical or mental disability or in accommodation ancillary thereto". The report states "Under these Regulations, charges imposed are only payable by persons with limited eligibility. Medical cardholders are exempt as are persons with dependants".

This is relevant because a patient at Crooksling Hospital in Brittas, Maud McInerney, who was a ward of court, was being charged for shelter and maintenance. A case was taken on her behalf to the High Court which maintained, notwithstanding the institutional assistance regulations which provide for the charging for shelter and maintenance, that if one was a medical card holder with full eligibility and there is any element of medical care in the facility, one cannot be charged. Essentially, the court set down the position that only those in a hostel-type facility where there was no medical care could be charged.

That High Court decision was subsequently upheld by the Supreme Court but between the High Court and Supreme Court decisions, the Department introduced new regulations making it clear that one could only charge persons with limited eligibility and not those with full eligibility. However, at the time the regulations were introduced, the Department issued a circular to the health boards effectively telling them that they could move people away from full eligibility by taking away their medical cards. They made the point that they would not need medical cards when in institutional care. Therefore, by removing the medical cards, they became people of limited eligibility and could be charged. It is extraordinary but this is what happened. Subsequently, the Supreme Court upheld the decision in the McInerney case but nothing seems to have happened to implement the findings of the court. At the time of the regulations, between the High Court and Supreme Court decisions, the then legal adviser of the Department of Health, as it then was, stated it was not possible to amend primary legislation by regulation, which is significant.

The next significant date is 1978, when the Eastern Health Board obtained an opinion from two senior counsel of the time, Ronan Keane, who went on to become Chief Justice, and Thomas McCann. Mr. Keane stated clearly in his opinion that there was no legislative base to do this, which is detailed on page 17 of the report. The Eastern Health Board wrote to the Department of Health enclosing a copy of the legal opinion, which stated:

(i) the difficulties being experienced in levying charges on persons for long-stay care in health board institutions "arises from the failure of the legislature to deal with the question of charges for maintenance ... in a clear and unambiguous fashion when the 1970 legislation was being passed" and

(ii) the difficulties in such cases "can only be resolved by amending legislation".

The health board wrote to the Department which strongly advocated that "consideration be given to introducing amending legislation and at ending the present confused and ambiguous situation". Notwithstanding that advice, no legislation was introduced. Through the years, every time somebody sued a health board for levying these charges the advice from the Department of Health to the health board was to stop charging and not contest the case. When invited by the Registrar of Wards of Court to challenge the legislation, the invitation was not taken up.

This situation continued for many years. The Commission on Health Funding, which reported in 1989, drew attention to this difficulty. The health strategy published in the summer of 1994 drew attention to the fact that there were legal issues concerning long-term care and promised amending legislation. Many other reports were drawn up over the years.

In 2001, when medical cards were being extended to everybody over 70 years by virtue of their age, the issue arose again. In October 2002 the South Eastern Health Board obtained a legal opinion which it forwarded to the Department of Health and Children in March 2003. It asked for a meeting to be held quickly to discuss the legal opinion but that meeting — the famous Gresham Hotel meeting — did not take place until December 2003, nine months after a meeting was sought and legal advice was submitted. On foot of that meeting, at which the issue was discussed, the correct decision was made, namely, to seek legal advice from the Attorney General. A letter was drafted for the Attorney General, as well as background documents, of which I have a copy. A copy also exists in the line Department which prepared the letter. That letter was forwarded to the Secretary General of the Department but, as we know, it did not issue. A copy of the letter and the background file was used in October 2004 when I asked for the Attorney General's advice to be sought. Later today, I will publish a copy of that correspondence because some confusion has arisen overnight as to whether some new file was found. No new file was found but, as Mr. Travers acknowledges on page 54 of the report, a copy of the file was in the line division.

At the end of March 2004, after the letter was drafted on 27 January 2004, a meeting was held between the management committee of the Department of Health and Children and the chief executive officers of the health boards. Such meetings are frequent and usually take place, I understand, approximately twice a year. The minutes of the meeting are published with the report and acknowledge that legal advice was being sought. Therefore, everybody at the meeting was of the view that legal advice was being sought. The assistant secretary responsible in the line division attended the meeting and was under the impression that legal advice was being sought. The next meeting took place in October 2004. The minutes note that legal options were being reviewed. I mention these two meetings because the information was not accurate; legal advice was not being sought and legal options were not being explored.

When, as a result of parliamentary questions, I asked for legal advice to be sought from the Attorney General, I received it very quickly. The advice was that we were acting ultra vires and, therefore, what we were doing was illegal and had to stop forthwith. We did that and sought to bring in amending legislation. At that time I asked the Secretary General of the Department to prepare a report on the issue for myself and the Cabinet. That report was prepared for 13 December and it is included in the published documentation. It is there for all to read.

The report refers to a legally defensible position and so on. It did not contain any reference to the letter that had been drafted and sent to the Secretary General. I was not aware of that when I took the matter to the Government, nor was I aware of the long legal history in the Department. As I said at the Oireachtas committee meeting yesterday, the Government therefore made decisions based on incomplete and inaccurate information. That is why, when I became aware that a letter and a file existed, subsequent to the Government meeting I asked for Mr. Travers to be appointed to examine the issue.

The conclusions of the report are very strong in terms of responsibility. All of us in this House have a duty to be fair and reasonable. I have already said that this was systemic maladministration over many years, and that is a fact. Maladministration does not of course merely affect public servants but can also be the responsibility of politicians. Notwithstanding those comments and the findings of this report, in the five months in which I have had the honour of being at the Department of Health and Children I have found outstanding public servants who work extremely hard under enormous pressure. Mr. Travers acknowledges that.

The manner in which the Department set about drafting the legislation to establishing the HSE, a mammoth Bill which we took through the Oireachtas just before Christmas in very pressurised circumstances, is an example of such work. There are many other examples of complex issues such as the negotiations on the Medical Defence Union, which are handled by the Department of Health and Children. The Department accounts for about one in four of every euro the Government spends on a day to day basis. Unlike many other Departments it deals with life and death issues. Mr. Travers makes the point that the urgent — which clearly has to be dealt with — does not mean that the important has to be left aside, certainly not for 28 years.

In his conclusions, Mr. Travers said there were shortcomings at political levels over the years since 1976 in not probing and questioning more strongly and assiduously the issues underlying the practice of charges for long stay care in health board institutions even if, or because, the analysis and briefings being provided by the officials in the Department of Health and Children appear to have been deficient in many respects. Mr. Travers said that these shortcomings were, however, of a nature, scale, substance and order of magnitude considerably less than those of the system of public administration.

In summary, the Travers report says that the fundamental reason for the period of time that elapsed from the date at which legal concerns about the practice of long stay charges in health board institutions were known up to the request by the Department of Health and Children for legal advice from the Attorney General on 27 October 2004, lies in "long term systemic corporate failure". The report says that this failure is "principally a failure of public administration which, essentially, failed to identify, recognise and acknowledge the difference between actions and practices widely regarded as fair and reasonable and supportive of the development and protection of essential public health services and actions and practices that were legally valid".

The report notes:

The overall failure of administration was compounded by the fact that the solution to the dichotomy between what was, perhaps, admirable and desirable from an operational, societal and public health service perspective and what was legally valid was readily amenable to remedy through the introduction of a simple legislative amendment. The failure was further compounded by ignoring for many years a range of legal advices and opinions which pointed to the remedy of the problems arising but which were left to one side in the persistent belief that the practices at issue were at least "defensible" in a legal sense even if this, ultimately, proved to be incorrect. In summary, it was a case of "good intentions" not being supported by the requisite legal foundations.

Mr. Travers makes the point that all the legal opinion available to the Department and health boards from their own legal advisers was to the effect that this was not legal. He could not find any substantial legal advice which contradicted that.

What are the lessons to be learned? Mr. Travers makes a number of recommendations which we intend to implement and I want to work with the management team in order to do so. Above all else, it seems the lesson we all need to learn is that one must not ignore legal advice and not leave matters in the lap of the gods. We all need to act speedily when legal issues arise. Certainly, in 1976, after the Supreme Court upheld the McInerney decision, the fact that this was not put on a sound legal footing is incredible because in those days Supreme Court decisions were rarer than they are today. We get Supreme Court decisions very frequently these days and indeed had one yesterday. To get one is not as unusual as it was 30 years ago. Even though the legal adviser at the Department took a particular view, others took a different view.

This is not all about procedures and law but about people. The HSE says that 315,818 people were affected, though that figure is not yet verified. Most of those people have passed away but about 20,000 are still alive. All who have been in Government for 50 years have upheld the principle that one makes a contribution to shelter and maintenance and I think that principle is broadly supported in the community. People who live at home or live in the community support it anyway. A good principle, broadly supported, with virtual consensus in our society that it is the right thing, was not put on a statutory footing, so that we are now in a position where we have to identify where we can those individuals affected.

That will be a mammoth task. Some institutions are closed and I understand there are no records for them. We will have to get some outside expertise because we have never before undertaken a task of this kind in Ireland. As many people will know, there was much debate about the offshore and non-resident accounts but that involved nothing like the volume this matter entails in terms of documentation and records.

A Cabinet sub-committee is looking at the implications of the Supreme Court decision. We sought in the legislation which was the subject of that decision a legal basis for the future and to get the power retrospectively in order to protect the taxpayer. The Supreme Court held that the prospective legislation was constitutional and indeed that retrospection was not unconstitutional under Article 15.5. It held, however, that one cannot take away someone's property rights without compensation and it would be constitutional to do so only if the finances were such that it would cause disequilibrium in the public finances. Given our economic state, the court did not consider that the sums of money involved would cause disequilibrium. The figure mentioned in the Supreme Court was approximately €500 million.

The Government has to refund all those involved who were of unsound mind. It cannot use the Statute of Limitations against those persons. Regarding any of the others remaining alive, if one were not going to make refunds dating back to 1976 one would have to prove that they were not of unsound mind and I do not know how one would go about that task, never mind the trauma involved. Accordingly, repayments will have to be made to all those involved who are still alive. We may consider using the Statute of Limitations with regard to estates. No decision has been made on that because we were awaiting the Travers report and its legal implications. The Cabinet sub-committee will meet shortly to set out clearly how we intend to proceed because I know people are concerned. Those citizens of whom we speak are old, vulnerable, intellectually disabled and mentally ill.

It is a pleasure to have the opportunity to address the Travers report in this House. When I moved the legislation in this House and in the Dáil before Christmas, I said, as did the Taoiseach, that all of this was done in good faith. We were led to believe certain things and it was on that basis we made decisions. Very early on in the Travers process it became clear that there was legal advice going back to 1978. That is why, before the Supreme Court, counsel for the State did not argue that this matter was done in good faith. At the time, people wondered why that was the case. It was because, between the passing of the legislation and the Travers process, and the process for the court, the Keane judgment was discovered. That made it very clear to anyone who read it that we were not on a sound legal footing. That was certainly known in 1978 and we now know that it was known in 1976 because the Department's own legal advisers made it clear that we could not amend primary legislation by means of a regulation.