Seanad Éireann - Volume 179 - 23 February, 2005

Nursing Home Charges: Statements.

  Ms Harney: 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.

[900] 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, [901] 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 [902] 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.

  Mr. Browne: I welcome the Tánaiste to the House and thank her for giving her opinion on the matter in hand. The phrase “collective responsibility” springs to mind. In 2002 the outgoing Government of the Progressive Democrats and Fianna Fáil rejoiced and proclaimed the great deeds they had achieved and what they would do after the general election. That approach has now been abandoned and the blame game is in train. The Progressive Democrats Party has made no secret of the fact that it holds the former Minister for Health and Children, Deputy Martin, responsible.

  Ms Harney: That is not correct.

  Mr. Browne: That is the perception.

  Ms Harney: That is factually incorrect. I am very confident that will not be the outcome of Mr. Travers’ report.

  Ms O’Rourke: It will go back to 1978.

  An Leas-Chathaoirleach: Senator Browne should be allowed to speak without interruption.

  Mr. Browne: This is typical of Fianna Fáil; when there is trouble it muddies the waters and harks back to the past.

  Ms Harney: That is not fair and it is not correct. I do not believe the facts will bear that out.

  An Leas-Chathaoirleach: Senator Browne should be allowed to speak without interruption.

[903]   Mr. Browne: The Tánaiste is prejudging the outcome.

  Ms Harney: No, I am not prejudging any outcome.

  Mr. Browne: It begs the question of why there is a need to hold an inquiry if the result is already known.

  Ms Harney: I do not know the result but I know some of the facts.

  Mr. Browne: The Tánaiste is aware of what constitutes collective responsibility. She has been lucky enough to be in Cabinet for almost eight years. She should have discussed this but she did not. The major decision to award medical cards to over-70 year olds in 2001 was not properly thought out and has led to this unholy mess. The Government wants to turn the clock back and go back years. It is being disingenuous in that regard.

  Ms O’Rourke: No.

  Mr. Browne: In 2003 one health board went to the bother of obtaining an 80-page legal opinion which concluded that the charges were illegal. The most shocking aspect of this sorry saga is that patients in nursing homes and their families who queried their obligation to pay were able to get away with not paying. However, anyone unable to speak up for him or herself continued to pay.

I agree with the Tánaiste in that people who can afford to do so should pay for health care.

  Ms O’Rourke: I should think so.

  Mr. Browne: We are fully in favour of that approach. I was in contact with the Health Service Executive yesterday and was informed that the practice of the former health board in the Carlow area was that 75% of a pension was taken, which makes perfect sense. Nobody would query that. The Government and politicians have failed miserably.

We should not forget that the Minister for Justice, Equality and Law Reform, Deputy McDowell, was Attorney General at the time. I want to put that back on the record as it has conveniently been forgotten. The Tánaiste was also in the Cabinet with a different portfolio. Collective responsibility does apply.

A meeting took place when difficulties were pointed out. That meeting appears to have been completely farcical; Ministers arrived late, left early or missed a crucial part of the meeting. The minutes of the meeting appear not to have been given to the relevant Ministers, nor were the difficulties pointed out to them. This comes across as being extremely amateurish.

The effect is that taxpayers are faced with a significant bill of up to €500 million, if not more. Today’s Irish Independent refers to a sum of €1 billion on the basis that people would get back interest on top of the money they are owed. Will [904] the Tánaiste please clarify this point in her concluding remarks?

Another issue of concern is the entitlements of those people who tried to get their aged parents or relatives into public beds in nursing homes but were unable to do so because no public beds were available. Such people had no choice but to avail of private nursing homes. I believe 20 legal writs have already been issued in connection with such cases. If those court cases succeed, they will open an enormous can of worms. The Ombudsman, Emily O’Reilly, has already publicly stated her belief that they have a very good case. The premise is that if one is aged over 70 years and is entitled to free medical care in a public nursing home, one should be entitled to a similar level of free care in a private nursing home as the State has not fulfilled its obligations.

I understand that 275,000 potential cases exist. Some 27,000 cases are pending in the former South Eastern Health Board area, of which 5,500 relate to County Carlow. The Tánaiste can correct me if I am wrong but the average length of stay for patients in nursing homes is ten months. According to figures I received from the Health Service Executive people would be entitled to approximately €6,000. If people spent more or less time in a nursing home then the figure would vary. The Government tried to give an ex gratia payment of €2,000, which is significantly below the figure to which they may be properly entitled. At the time we pointed out that it would only take one successful court case to challenge that and the floodgates would be opened. The Supreme Court judgment has now saved us getting to that stage.

I am interested in ascertaining the terms of reference of the report being carried out by Mr. John Travers. Will the Tánaiste clarify if the infamous meeting with Ministers coming and going will be included in the terms of reference? That was a key meeting when the issue of illegal charging for nursing home care was raised, yet it was not brought to the Ministers’ attention, or so they claim. That issue must be examined as a matter of urgency.

It is vital that people who are owed money do not have to go to the courts. The last thing we need is a repeat of the Army deafness claim, which ultimately proved a disgrace in terms of the amount of money paid out to the legal teams involved.

  Mr. Glynn: A great deal more could have been paid out.

  Mr. Browne: Nobody was happy with that scenario. We should learn from those mistakes. If people have been wronged they deserve compensation. The last thing we need is for taxpayers to be doubly punished by large legal teams capitalising on the issue.

The Supreme Court ruled that there is nothing wrong with having charges for long-term care. I do not know any political party that would quib[905] ble with that and I hope none of them would. However, the court found that there was no statutory basis for charges to be levied.

It is worth noting the efforts to which the Fine Gael Party went in order to resolve the issue. Last October, Deputy Perry questioned the Taoiseach about the matter in the Dáil. The Taoiseach consistently skirted around the issue. At the time the State’s liability was estimated to be €100 million. We finally reached a breakthrough on 8 December in response to questions from Deputy Kenny. The Tánaiste admitted that primary legislation was being urgently drafted to clarify the legality of payments made by pensioners towards their care in nursing homes.

It is clear that a new Bill is required. This has been mooted in the newspapers. The Tánaiste referred to a Bill of entitlements.

  Ms Harney: An eligibility Bill.

  Mr. Browne: It would make sense for people to know their care entitlements when they reach a certain age. That is sorely lacking at present. It is a failure of the previous Minister for Health and Children, Deputy Martin, that when medical cards were introduced for over-70 year olds, such a Bill was not introduced at the same time. We need to clarify exactly to what people are entitled as they grow older.

In spite of what the Tánaiste said, the public perception is that the former Minister, Deputy Martin, has a great deal of questions to answer in this area, as does the former Minister of State in the Department of Health and Children, Deputy Callely, who ironically had responsibility for care of the elderly. He did not fulfil his obligations in that regard. He is lucky that the reshuffle has already taken place because he would not have been reappointed had the Taoiseach known about the mess in which he afterwards landed the Government. I could spend hours speaking on this matter and stating “We told you so”, but I will not do so as it is unhelpful and will not progress the case any further.

The Tánaiste’s point about what could have been achieved using the huge sums of money in terms of new hospitals and so on makes the situation even more serious. The people who had money taken from them wrongly must have it repaid to them immediately. I am not sure whether the Tánaiste will be successful in limiting the payments back to 1999 because I suspect it may take another court case from before that point to open the floodgates.

A great deal of incompetence has been demonstrated by the Government on this issue for which the entire Cabinet must take responsibility, including the Minister for Justice, Equality and Law Reform, since he was the Attorney General at the time. We need to examine the systems in the health services so that we avoid similar debacles. If the Health Service Executive is made aware of a problem or suspects one, action must be taken immediately to rectify it, rather than it [906] continuing for years and landing us in the type of mess in which we are now.

I apologise that I am unable to stay for the debate because I must attend a meeting of the Joint Committee on Agriculture and Food on the issue of Carlow sugar factory. However, Fine Gael will be represented in the Chamber.

  Mr. Glynn: I welcome the decision of the Supreme Court on this matter. It has been a festering sore for some 29 years and there is no point in people stating that it is the responsibility of the incumbent Government. Rather, it is the responsibility of the incumbent Government to take action. Our society is governed by legislation and the Government and the Oireachtas will have confidence that continuing the policy of people making contributions towards shelter and maintenance is not alone fair but is also consistent with the Constitution.

Since this news broke, a number of people have contacted me about this unfortunate situation. When I worked in the community, I was sent to a particular county to try to find the relatives of a person in the care of a long-stay psychiatric institution who had passed away. However, no such situation will exist now because the relatives will come out of the woodwork, which has already regrettably happened. It will be interesting to see the visitors’ books in a number of those institutions to see if people who arrive claiming to be relatives of those who have passed on to their eternal reward have signed the book in the past.

  Mr. O’Toole: Absolutely.

  Mr. Norris: Hear, hear.

  Mr. Glynn: I can assure the House that in many cases they will not have done so, which is what makes me sick about the whole affair.

There is no point in becoming involved in the blame game. We should recognise the situation which exists. Legislation was brought forward to correct a situation which should have been corrected in the 1970s. The Tánaiste in very clear and has specified in concise terms why the legislation was deemed unconstitutional.

Only yesterday, an individual contacted me stating that there is no way in the world that the excellent care provided by our public and private nursing homes should be paid for entirely by the State and the taxpayer. I did not ask on which cloud the individual was but if that is a reflection of what is going through the minds of certain sections of society, we have become a very sorry and sick society.

Senator Browne is incorrect to state that the average stay in private nursing homes is ten months. Rather, the time for women is three years and for men it is two years.

  Ms Harney: Women still have some advantages.

[907]   Mr. Glynn: The Government acted with responsibility in order to deal with a 29 year problem and has acted correctly in doing so. The Oireachtas played its part, as did the Council of State, the President and the Supreme Court. As everyone knows and has been stated by the Tánaiste, permission to take up to 80% of a non-contributory pension has been in place. In my experience, where people have been in long-term care and where deductions have been made on the basis outlined by the Tánaiste, in many cases it was very difficult for the people involved to spend the 15% or 20% of the money which remained. In some cases, it was not enough but in many cases, the people in question did not need it and did not spend it. However, when these people passed on, the first question to be posed would be how much they had left in their wills.

For example, when they were eventually located, the first question asked by the relatives of a fine old gentleman who liked his baby Power’s whiskey and enjoyed smoking his pipe was whether he had left anything in his will. All he had was a couple of suits of clothes which were the property of the Midland Health Board, which the family proceeded to remove. This is what one is dealing with.

Where do we go from here? We must continue what has been started. It is deeply regrettable that it took so long to clarify the implication of a Supreme Court decision of 29 years ago. We now have a definitive resolution which is very welcome. Members will now be in a position to study the Supreme Court ruling in detail, the key elements of which have already been read into the record by the Tánaiste in the Lower House.

The provisions of the Health (Amendment) (No. 2) Bill 2004 which provides for the prospective charging of in-patients is constitutional. There is no constitutional prohibition on implementing a charge for in-patient services in future. The Bill was not contrary, as has already been pointed out by the Tánaiste today, to Article 15.5 of the Constitution in that it was not within the prohibition of retrospective legislation in that article. This is because the article is confined to rendering something unlawful which was, at the time of its commission, not unlawful.

The Bill is unconstitutional, as has already been stated, in regard to the property rights of citizens. While taking away a property right without compensation can be justified under the Constitution, it can only be justified to either avoid an extreme financial crisis or a fundamental disequilibrium in public finances. It is clear that the Supreme Court did not consider the exposure of the State or the sums involved, in the order of €500 million, to meet that criterion.

3 o’clock

The Bill was brought forward but fell at a hurdle. In that context, I commend the Council of State on recommending a referral of the Bill to the Supreme Court and the President for doing so. At least we now know where we are going. It is easy to state that the Government did not do this or that. To [908] my knowledge, no political party in this House has ever taken a stance or sought a mandate since 1976 to remove these charges. Every Government in the interim period from that date has continued with them. If political parties wish to assign political blame, it must surely be on an inclusive basis since 1976.

The Tánaiste has stated that she will not now stand over an assertion she made in the House pertaining to the bringing forward of the Bill given what is now known and neither will I. We must go back to the drawing board and we need to put right what needs to be so. Above all, we must continue to look after those who built up this State and are now unable to look after themselves.

  Mr. O’Toole: I wish to share my time with Senator Norris.

  An Leas-Chathaoirleach: Is that agreed? Agreed.

  Mr. O’Toole: I wish the Tánaiste well with her difficult brief. I appreciate that she had the courage to say recently that she would not stand over the statement she made previously to the House. I admire it when politicians admit when they get something wrong and correct the record. That is as it should be; it is no big deal. On a previous occasion I made an appeal that this matter not become a party political football. Nobody has all the wisdom on this issue. We can now speak with 20/20 hindsight and this applies to all parties and none.

This is an error which we must address now. I said from the start that there would not be a problem with retrospection. All parties in the House have, at some time, introduced retrospective legislation. The Constitution does not allow us to make criminality retrospective but it does allow us to bring retrospection to bear on many other matters. The last time we passed retrospective legislation was to approve the appointment of a judge 16 years after he sat on the Bench; it clarified that all his decisions over those 16 years were legal. That is the last case I can recall but it was not the only one. It has certainly happened half a dozen times in the 18 or 19 years since Senator Norris and I were elected to this august body.

When the news of the judgment broke, I was in the company of a colleague from Scotland. His elderly parent is in a home in the Shetlands and he is paying the home 900 per week. He will continue to pay that until his father’s estate is reduced to less than 10,000 in total. That is the situation in the neighbouring jurisdiction. I have no problem with payment. There will always be some element of payment. The concept of relating it to an amount, such as 80% of the non-contributory pension as suggested by the Tánaiste, is a fair and reasonable way to approach it.

What we must now deal with is how to repay the money. I agree with Senator Glynn that some [909] of the people who will queue to claim this money showed little regard for the people for whom they are claiming. We must accept that this will happen. People’s level of responsibility for their elderly parents and relatives is not something which should be disregarded. It is a responsibility which we all must accept in some way, even if not necessarily financially. Many things can be done in this regard. Senator Browne made an important point when he suggested that we clearly outline the entitlements of people who reach the age of 65 or 70 years. To what are they entitled in this and other areas?

We must increase the number of nursing home places, both public and private. Tax breaks for people providing such places is important. It has made inroads into the problem and has helped the private sector. However, in all fairness, as I suggested with regard to child care yesterday, people who are paying to support elderly family members in nursing homes should benefit from a tax credit. That would remove some of the pressure. It is a simple and appropriate way to deal with it.

I also believe we should promote the existing system of home care and home help for elderly people who are somewhat, but not fully, independent. At a professional level, we require a more peripatetic health service. It already exists but we must build on it. Many elderly people are happy to stay in their homes. They might be able to do 80% of what they need to do themselves and support from family and the State will remove further pressure. The four suggestions I have made should be acted on. There must be more nursing home places, tax credits for certain payments, promotion of home care support and promotion of a peripatetic service from professionals who help the elderly.

The most significant aspect of the judgment, and Senator Ryan will probably discuss this further, is that the real difficulty was not retrospection but private property. That article of the Constitution dealing with private property has caused many problems. I heard the Taoiseach speaking about trying to impose some discipline on developers who are buying up land around this city, thereby driving up the cost of building houses and creating problems for home owners and first time buyers. This relates back to the article on private property, which is the most restrictive constitutional provision on private property in the constitutions of which I am aware.

  Mr. Norris: It has never been tested against the common good provision.

  Mr. O’Toole: That is the issue. The common good must also be there to balance the provision on private property. We have seen what has happened with housing. Developers can afford to buy huge tracts of land and release them in dribs and drabs for development, with the consequence of corrupting the law of supply and demand by reducing supply and increasing prices. That is not [910] in the common good and I believe the people who drafted the Constitution did not have it in mind.

However, in this case, that provision of the Constitution protected elderly people and I welcome that fact. What we were doing was wrong because there was no discipline, control or regulation of it. We were simply taking everything. If we had passed a legal measure, as we now intend to do, whereby there would be a legal basis for doing it, there would have been no difficulty.

We need to move on repayment and to do it efficiently. We put a great deal of pressure on the banks to repay their customers when they overcharged them. Pressure was put on the banks to take the initiative to find out who was overcharged, where those people lived now and to pay them back. It is crucial in this situation that the Department goes to the trouble of finding out who was overcharged or incorrectly charged and repays them or their estate. Although Senator Glynn will probably be correct about many cases, that money is already lost. Let us repay this money and move on.

I wish to make two final points. First, I noted the Tánaiste’s comment that she will not blame her immediate predecessor and does not expect him to shoulder the blame when the report is complete. That is important. As I said earlier, it should not be a party political issue. It has been in existence for the past 20 years and all Ministers and public servants will have to share responsibility for it. However, if we discover that somebody told the Minister that this is an issue that had to be dealt with because it was illegal, unconstitutional or however it was phrased, questions will have to be asked and somebody will have to be answerable. That is the way it should be. That is what we elect people to do.

This will cost a great deal of money. The Tánaiste said in another venue that this money will not be taken from the health budget. She told us today that the Supreme Court concluded that €0.5 billion was not a hugely significant amount in the context of the €11 billion spent annually on health. She accepted that point. Either the Tánaiste or the Minister for Finance, Deputy Cowen, said recently that this €500 million will be supplied from a source other than the health budget. Perhaps the Tánaiste will confirm that point.

  Mr. Norris: I thank Senator O’Toole for sharing his time. I welcome the Minister of State, Deputy Seán Power. I am sorry the Tánaiste, Deputy Harney, is not present, being the head honcho——

  Ms O’Rourke: She was here.

  Mr. Norris: I accept that. The Minister of State, Deputy Power, will act as an effective conduit of the views of the Seanad. I agreed with much of what Senator Glynn said.

[911] Senator O’Toole suggested a tax credit, which is a good idea. I was involved in the rescue of a small old persons’ home in Dublin. It had not been charging enough. It was run by a committee of well-intentioned people but they were not in touch with commercial realities and got into commercial difficulty. We went in and with the help of Ms Ann Byrne, former programme manager to Deputy Howlin, they received a subvention from the local authorities. Mr. Bob Joyce then put together a plan whereby people could gain tax relief by covenanting, which saved the place. Therefore, the idea is an extremely good one.

Governments are far too pusillanimous in respect of the Constitution in that they have never really tested the concept of the common good. In the present circumstances, if this was tested, the common good provisions would prevail.

I am interested in considering the welfare of elderly people, in which I now have a substantial vested interest. I congratulate the Tánaiste, Deputy Harney, on taking up this job which is a poisoned chalice, although I am sorry she is not present to hear me say so. The Minister for Finance, Deputy Cowen, formerly described the Department of Health and Children as “Angola”, a place where unexpected detonations occur from previously unsuspected landmines. Goodness knows, this has shown itself to be the case. However, even the ex-master of the National Maternity Hospital, Holles Street, who is very critical of the health service, when speaking on radio had words of praise for the Tánaiste and hoped she would be able to clear up the administrative difficulties. There is much waste in this area, which I have no problem stating. I am glad our benches are not trying to play political football with the issue.

I strongly support the Minister and understand why this situation existed. However, I have heard unpleasant things said on radio in recent days. Some people telephoned to say they believed they have an unexpected nest egg, although at least some of these people did not kill themselves looking after their elderly relatives. This is a nasty and avaricious way to behave. One repeatedly encounters the compensation issue. The first little breach is like blood in the water — then the piranhas come out. When listening to the speakers on radio the day before yesterday, I was reminded of the late John Kelly, when he inverted Joyce’s phrase about Ireland being the old sow that ate her farrow and said that, nowadays, we are in danger of the old sow being devoured by her cannibal piglets. An element of this arises.

On the other hand, I listened with immense respect to a woman who telephoned a radio station. She and her elderly mother did not have much money and her mother was taken into care by the State. The woman stated she could never thank the institution’s staff enough for the wonderful care her mother received. She had no [912] intention of taking action against the State. I absolutely honour and respect that person. That is the way we should approach our society, although none of us really does. It is a body corporate. We take elements that may be of use. It would be a Swiftian irony if money was drained out of the health budget and this affected the most vulnerable people, namely, the elderly.

The pension serves to provide food, shelter and some small element of luxury and well-being. By taking people into care, the State provides the shelter and food. I do not know why people feel this should be done twice as a person in that situation is receiving the same advantage twice. There is a question mark in at least some circumstances in regard to action being taken against the State to recover money that was not intended for this purpose when it might be taken away from those in more vulnerable circumstances.

I will use this opportunity to record what I feel. I recently got into a bit of a controversy with a distinguished medical person. The security guard at my local supermarket was concerned about his mother’s condition at St. Mary’s Hospital in the Phoenix Park. I wrote the usual letter on his behalf and got a snotty letter back. Incivilities were exchanged for about a week before I replied saying that as we had finished our period of incivility, I would like to help in any way I could, if conditions were difficult.

I visited the hospital and found that its consultant geriatrician was a very decent man. I saw the circumstances in which staff, who are heroic, are working. They operate in a building which was not designed as a hospital but as a military academy, the Royal Hibernian Military Academy, before becoming a hospital for Army personnel in the time of the Free State. It was not designed as a hospital but is an 18th century building. There are many outlying buildings in the grounds, including two very fine churches, one Anglican and one Roman Catholic. However, the condition of the building is poor in some sections, although it is kept scrupulously clean. One of the rooms, for example, was a former swimming pool when it was the Army hospital. It was filled in with concrete but the roof of the building has collapsed. It is like a factory and there is evidence of rot. It is inappropriate.

On one ward, 30 patients were separated by dividers that did not go up to the ceiling, allowing perfect conditions for the spread of the winter vomiting bug through airborne infection. There was a pong that would blind Sinn Féin because there is only one lavatory for the 30 patients, which is not wheelchair accessible and has no hoists. Moreover, the windows are halfway up the walls, no doubt designed to stop the children in the Hibernian academy looking out during geography lessons. I cannot speak highly enough of the staff working in these conditions.

How lovely it would be for these elderly patients, at the end of their lives, to at least have a view of a park they may no longer be able to visit. Nonetheless, enormous strides have been [913] taken. For example, Dr. Power has organised a minibus for those who do not have cars. If they can get to the gates of the Phoenix Park, they can telephone the minibus and it will go to the relevant gate and collect them. In addition, the patients have greenhouses. This is marvellous and really inventive because elderly and wheelchair bound patients can get their hands into the soil and watch plants grow, which gives them hope. However, they are hit again by the cap on staff recruitment in the Civil Service.

I am not against people receiving nest eggs. God knows I do the lottery every week and hope to get a huge nest egg. I cannot understand those who say €2 million is too much; it is not half enough, I could do with €4 million. However, I would hate to think that people in a mean-spirited way would seize the opportunity to profit from parents they did not support to the extent one would expect in terms of looking after them during their life. By so doing, they might take away from the necessary funding to revamp an institution where elderly people live in inappropriate circumstances.

  Mr. Minihan: I welcome the Minister of State, Deputy Seán Power, to the House and thank the Tánaiste for her attendance and contribution to the debate, which I welcome. It is more measured than the mini-debate held last week on the Order of Business, when the missiles coming from the Opposition would have done Baghdad proud.

  Mr. McHugh: It is good opposition. The Senator will get used to it after a while.

  Mr. Norris: We are not the Opposition.

  Mr. Minihan: I am glad that, after a clear period of reflection, Members are more measured in their contributions as this matter unfolds. For the purpose of clarity, I wish to record my congratulations to the Tánaiste on the way she approached her responsibilities as a Minister and member of Cabinet. After a few weeks in office, this situation was brought to her attention by Deputies Perry and Kenny. She sought advice, addressed the Dáil, put the documents on the record of that House and set about a course of action. She appointed Mr. Travers to conduct a report and, in the short term, brought forward legislation to protect the situation that prevails, as well as considering what had occurred in the previous 20 plus years.

I welcome the Supreme Court ruling of 16 February. We now have clarity on a situation which was unclear for many years. This has been brought about in a relatively short time after the matter was brought to the attention of the Tánaiste. I am glad the Government progressed in the way it did because the manner in which the Supreme Court ruling was brought about is healthier for this country than if we had to wait many months for an individual or motive case to be brought in light of what occurred in Nov[914] ember. The State has been done a service in this regard. The responsibility of office holders is to protect the State and its citizens. Regardless of the views of non-office holders, when one is in office, one has responsibilities. The Tánaiste has shown very clearly that she faces her responsibilities in a decisive manner.

There is no doubt that the elderly are a valued part of society. Recent suggestions in the media and by some political commentators that this was wilful neglect and a robbing of the elderly by the Tánaiste are harsh, unfair and untrue. This type of cheap political points scoring does not serve this community or the elderly fairly.

There are examples of people suffering severe hardships trying to meet payments that were required to facilitate their elderly relatives in nursing homes, but Senators Norris and O’Toole made valuable points. People are given pensions intended to sustain them and to provide comfort and shelter for them. If this responsibility is taken on by the State, it is not unreasonable to expect that they will make a contribution. In recent years, people saw fit to put this point into practice to extremes, but we now have clarification on the matter.

Many of the institutions are providing excellent care for our elderly. There are many families that have moved away from the old situation of having three generations in one house as society changed. There are people who must place their elderly parents in homes due to their circumstances. Many elderly people are grateful for the companionship, care and so forth that they receive, but they do not expect all of this free of charge. If they have the means to contribute and pay towards that care, they are happy to do so.

I agree with the point that we now find ourselves with green-eyed monsters and cash registers clicking in people’s eyes. This worries me. Senator Norris eloquently described people ringing in to radio shows that he has listened to with different points of view about nest eggs or their gratitude for the care their parents received. I, too, have spoken with both sides of the argument. I wonder if people who saw a nest egg of pounds, shillings and pence — or the euro, I should say — and now seek to cash in, paid equal attention to looking after the elderly members of their families. People have given me a message for the Tánaiste to the effect that they were satisfied with the care their parents received, that they will not pursue a case against the State and that, if it is the case that they are entitled to money, they will donate it to the very institution that looked after their mother or father. I congratulate this type of person.

However, I am in no way suggesting that those people who are entitled to be paid, suffered a hardship or had to dispose of family assets, do not warrant compensation. Of course they do but, as in every situation, there will be extremes on either side and common ground in the middle. I hope the common ground in this situation will prevail. When there were severe cuts in Govern[915] ment spending in the 1980s, the amounts of money involved were nothing compared to the amounts we are now proposing to take out of the spending power of the Government to provide services across the board. As citizens and individuals, we should all hope that common sense and the common ground of those who express their views will prevail and that we will discharge our responsibilities well.

I welcome the establishment by the Government of a sub-committee to work through the mechanisms to accomplish and deliver this payment. I hope that, at the end of the day, we are not in a scenario in which the legal profession gets too involved, where much money is expended by the State and matters conclude in an unnecessary fashion. People will benefit to the detriment of the provision of services.

There is a system in this country wherein the Oireachtas, the Government and the courts combine in ensuring that our democracy is upheld. In this particular case, the system has been shown to work. I concur with previous speakers such as Senator O’Toole that it is unfair to point the finger of blame at the current Minister for shouldering the responsibility and for implementing these charges. The evidence, as provided to date and which I hope will be substantiated further by Mr. Travers’ report at the end of February 2005, is that this practice was spread equally over 11 Governments. The Travers report will throw light on what happened within the Department and raise many questions that must be answered. In reality, not only has the Government faced up to the responsibilities of the Supreme Court decision, but it must do so in regard to Mr. Travers’ report and taking the appropriate actions to determine where the shortfall in administration of this debacle took place. The Tánaiste will act with the same degree of decisiveness as she has acted in her short number of months in office.

I welcome the tenor of this debate and the points that have been made. The important people in this are our elderly citizens. They are valued members of society and must be treated fairly and with dignity. At the end of this process, I hope we will have repaired whatever deficiencies existed in the manner in which the elderly have been perceived by certain sections of society. Let us hope that common sense prevails and that those people who have an entitlement are compensated. It is important that a system is put in place to ensure that this compensation is brought forward and that will not allow the legal professional or individuals turn this into another debacle and divert moneys from other services for their personal greed.

  Mr. Ryan: 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 [916] 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 [917] 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——

  An Cathaoirleach: Did the Senator name the report?

  Mr. Ryan: 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 [918] 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 [919] 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.

  Ms Feeney: I welcome the Minister of State, Deputy Conor Lenihan. I also welcome the opportunity to contribute to this debate on the Supreme Court’s decision in respect of the Bill. I am glad the debate has, with one or two exceptions, been well balanced. Senator McHugh is smiling so that may be about to change.

[920] The Supreme Court decided that the Health (Amendment) (No. 2) Bill 2004 is constitutional in some respects. The court agreed that the Bill was justified in making charges in the future but not justified in imposing charges retrospectively. In my opinion, new legislation will be required in respect of the imposition of charges in the future. The decision of the Supreme Court, following the Bill’s referral to it by the President, has at least brought legal clarity to the situation. A poorly administered system, under, as other Members stated, various Governments of all hues, has been in place since 1976. We will now have to change it.

The Minister yesterday announced the establishment of a Cabinet sub-committee to deal with the issue of compensation for those who were incorrectly charged. I have no doubt that this sub-committee will arrive at a solution which will be fair to those who were wrongly charged and to those currently paying tax. The health budget consumes an enormous amount of taxpayers’ money and is under immense strain. People must realise that Exchequer funds are not unlimited. Potential figures for compensation ranging from €500 million to €2 billion have been mentioned by various parties. The Tánaiste indicated that up to 2,750 people may have been affected. It must be remembered that amounts of this magnitude must be found by cutting expenditure in other important areas, not least the existing health budget. I am glad it has been indicated, in a press release or newspaper report, that the Minister for Finance, Deputy Cowen, intends to make a once-off payment. This will, I hope, help to resolve matters.

While it is incumbent on us to ensure that elderly people are adequately compensated for being incorrectly overcharged, we must also try to ensure that the nation’s finances are not put at risk. This is a problem which has been contributed to by all Governments since the days of Liam Cosgrave and Brendan Corish. Like Senator Ryan, I am of the view that it is unfair to lay the blame at the door of any Government or on the shoulders of any Minister. We must try to find an equitable solution. We must devise a reasonable system of compensation for people who have been overcharged. This must be done in a manner which prevents the future enrichment of the legal profession at their expense and that of the general taxpayer. The Health (Amendment) Bill 2004 and the Supreme Court judgment have brought some clarity to a long-running, confused and unsatisfactory situation. I have the utmost faith in the ability of the Tánaiste and the Cabinet sub-committee and I know they will come back with recommendations on a system of compensation that is not alone honest and transparent but, most important, avoids a plethora of court actions.

The Supreme Court judgment has brought about a climate in which it is timely to look at the wider debate as to how elderly people are to be looked after. After all, these are the people who [921] have given us what we have today, and it is only right that they be looked after. I believe it is the view of every citizen that this should be properly handled so as not to rob the Exchequer of every penny.

I was impressed by what Senators Norris and Minihan had to say about people they knew that had elderly relatives in nursing homes who did not need any money back from the State. They would be prepared to invest any rebates in the homes that had looked after their elderly relatives. However, there are people who find it financially difficult when paying for their elderly relatives in care who would welcome whatever compensation is paid. It is right that the moneys are repaid in such cases, bearing in mind the wider picture in terms of the Exchequer’s coffers.

Through the Minister of State, I wish the Tánaiste well with her sub-committee. I know whatever it does will be for the benefit of us all.

  Mr. McHugh: I welcome the Minister of State to the House. I commend Deputies Kenny and Perry on raising this matter. It is indicative of an effective Opposition that has been working well in the past two years and a team of people who are getting ready to enter Government. It is a good omen for a team that will be capable and professional, when in Government.

As regards the remuneration of moneys owed to people who were otherwise charged illegally, it is important that the public has confidence in what is being done. If there is to be a remuneration in excess of €1 billion, it is important that the litigators do not take a surplus of what is available. That is to be welcomed.

Senator Minihan mentioned that the Tánaiste has done a good job since this issue was highlighted. She had no choice. It is as simple as that. She had to do a good job. An illegal technicality was identified and she had no choice. It is important that the public has confidence in the disbursement of moneys to the people from whom it was taken, illegitimately. A wider debate should be mandatory as regards care of the elderly and it is incumbent on us as legislators to begin that debate. Perhaps this is a watershed as regards opening a debate on the elderly. It is certain, however, that there is a serious equality issue as regards care of the elderly.

The symbolism of an elderly person handing over his or her pension book to either a private or public nursing home is disturbing. Such a practice is inequitable and wrong. I am in total agreement that one has to pay for services, but to require the handing over of a pension book to a public or private body is to treat people discriminately and this must be addressed. To give an example, there would be uproar if we were to insist that parents hand over their children’s allowance for pre-school care or require people to surrender their unemployment assistance to go on courses. People would not accept that. There would be a revolution if we started to demand unemployment assistance from the unemployed [922] or the children’s allowance from parents. Equally, it is wrong to ask people who have worked relentlessly and tirelessly in this State over the years, the elderly, to hand over their pension books and we have a serious inequality issue as a result.

If elderly people are functionally dependent or have cognitive needs that need taking care of, they cannot be treated differently from any other citizen. They still have to be treated on an equal basis. As a practical example, I will ask the Minister of State, through the Chair, how he would feel on his retirement, if he had to hand over his Oireachtas pension to some authorities, and it was taken away from him week by week and he never saw a penny of it.

  Mr. C. Lenihan: I already do that with my wife. I see none of it.

  Mr. McHugh: Joking aside, there is an issue regarding the symbolic nature of handing over moneys in the form of a pension, assistance or an entitlement to a private or public body. Leaving the Minister of State’s spouse or family to one side, I believe it is wrong and there is a serious equality issue to be addressed.

As regards access and funding there is need for a comprehensive debate on private and public nursing homes. On the east coast there are many elderly people in high income brackets who are holding out to get into public community nursing homes. They are holding out, in certain instances, because they do not want to go into private nursing homes. If one is paying €800 a week to a private nursing home and, let us say, the subvention is €680, down the line the cost of care may increase but the subvention may stay the same. There are problems and concerns in that regard.

There should be equal assessment between community homes and private homes. One is not financially assessed in a public nursing home whereas one is assessed in a private home. Anomalies exist between the treatment of public and private nursing home patients, which must also be addressed.

4 o’clock

As regards transparency, we have an ever-expanding elderly population base and they have to be taken care of. We must look at different avenues for treating them on an equal basis and for moving forward on the equality issue. Before Christmas I raised with the Minister of State, Deputy Seán Power, an issue regarding the 21 day rule for patients in private nursing homes. Senator Leyden will be aware of this as he was present. If an elderly person breaks a leg and has to convalesce in a community nursing home, the person will have to pay after 21 days. That is a discrimination issue, because someone in a public hospital may stay longer than 21 days but will not have to pay.

The debate on how nursing homes have been developed has not been addressed and we need to look at this. In the past, we had public and private nursing homes. Private nursing homes [923] were successful due to the fact that they were family led. I am aware of many private nursing homes across Ireland which have been family led. They have been a success story.

  Mr. Mooney: The Senator’s time is up.

  Mr. McHugh: I want to make one last point. The Chairman should allow me some discretion because I found it hard to concentrate on my contribution with the talking that was going on behind me. It is rather difficult to make a contribution when one is being interrupted.

  Mr. U. Burke: It was coming from the other side.

  Mr. McHugh: We must address the fundamentals of investment in nursing homes. At present a developer-led syndicate is driving construction which is opposed to the type of private nursing home that we had for years, which was family led and gave credibility to the sector. However, at present, syndicates of rich, successful businessmen are getting tax-breaks to feed into the construction and operation of nursing homes. This is an ethical issue because it is detaching the family run element and it allows outsiders to come into the sector. They have to provide for a matron who may not have an emotional attachment to the nursing home.

I have tried to make three important points today. The first is in regard to equality and how we treat older people. We all live in Peter Pan’s world and we think we will not get old. When I get old — I do not know when will be the cut-off point, perhaps it will be when I reach 100 years of age — I would like to be treated the same as every other citizen in this country. The second point deals with the transparency between the community nursing homes and the private nursing homes and the financial assessment of each. The third point——

  Mr. Leyden: Perhaps the Senator might like a nice, peaceful place to enable him to concentrate on his reading.

  Mr. McHugh: Absolutely. Perhaps somewhere in Boyle, County Roscommon.

  Acting Chairman: The Senator is already three minutes over time.

  Mr. McHugh: I appreciate the Chairman’s latitude. The final point is that we must have a serious debate on who or what is driving the provision of nursing homes. Is it the construction industry or is it people interested in the care of the elderly?

  Dr. Mansergh: I welcome the Minister of State to the House, as well as the Tánaiste’s statement earlier this afternoon. She has handled this whole [924] business properly and with integrity. She has done what one should do when one discovers a mess that is not of one’s own making. She took advice and she took remedial action. The Bill was struck down after the Supreme Court was consulted and she will bring forward new proposals in the light of that.

This saga, which affects the rights of our citizens and especially our elderly and more vulnerable citizens, shows that a parliamentary and constitutional system works. The system of parliamentary accountability contributed to the Bill being brought forward in December. It was correct that every precaution be taken and that a Bill affecting people’s rights be referred to the Supreme Court, especially given the limited capacity of the people affected to take legal action. We have a system in this State where the President can exercise a veto on legislation following constitutional advice, and has a duty to do so. That worked well in this instance. I can understand the decision of the Supreme Court and the reasons given. I have not heard anyone say that the Supreme Court got it wrong.

There will be an investigation on how the legal doubts were ignored over the past 28 years. A couple of points need to be made on that subject.

  Mr. U. Burke: At least a couple.

  Dr. Mansergh: Legal doubts can be raised or expressed about practically anything. As we can see in the courts on all manner of matters, an arguable legal case can be constructed in defence of any proposition or in casting doubt thereon. It would be a brave person who could absolutely guarantee that all legislation and regulations are constitutional in every respect. The real world does not work like that. The health service is always faced with enormous financial pressures. It is understandable, but not necessarily pardonable, that people under annual pressure from the Department of Finance had no particular appetite to explore avenues that might cost a great deal of money. Having said that, we must face up to these situations. If justice requires us to spend €500 million or the best part of €1 billion, then we have to do that. We are fortunately in a financially strong position today.

Today’s statement could be regarded as an interim statement, but it seemed to suggest that compensation would be given in respect of the last six years. In the case of long-stay patients such as those with mental incapacity, it would go back further. I was a little surprised and disappointed to hear the Tánaiste say that records in some of these places are very incomplete. The State should require proper record keeping in these institutions. As we have seen with institutions for children and young people, it is imperative to keep proper records in case unanticipated queries arise at some future date. A provision in this regard should be included in the Bill.

[925] In the more numerous category of elderly people entering care, relatively few people will have a stay which lasts for many years. I accept Senator McHugh’s point that families in many cases have made considerable sacrifices. We must balance payments to estates to reimburse expenditure which occurred a considerable number of years ago with the pressing needs of the health and other social services today. I appreciate that the balance which must be struck will be a matter of some debate.

Like most Members, I have some little vicarious experience of nursing homes to the extent that I have visited friends or relatives from time to time. Facilities range from the very comfortable and even superb to those with which one does not feel wholly at ease. The sector will undoubtedly grow. I spoke recently to the chairman of a hospital about the problems of accident and emergency services. He made the point that many people in nursing homes should be dealt with by primary care, which needs to be developed, while others should be in step-down facilities. It is clear that we must develop services further.

  Mr. U. Burke: I welcome the Tánaiste’s remarks in the House today as it was necessary for her to make a clear statement on the issue. We must, however, view matters in the context of the circumstances in which she found herself. She is part of a Government with collective responsibility for the scenario in which many people find themselves now.

Many Members spoke of the need for a balanced debate and a reference was made to the launching of Scud missiles by the Opposition. The use of emotive terms fails to acknowledge the reality that illegal deductions were made and demands were put on people over a period of 27 years while successive Governments failed to take action to provide redress. The issue would not have come to a head as soon as it did had it not been for the Government’s stroke mentality which prompted it to provide medical cards to all persons aged 70 years and over. We know now that the provision is impossible as a result of which the Government has reneged on it. Perhaps the Minister of State, Deputy Parlon, can clarify that matter for the House. Had it not been for Deputies Perry and Kenny, who worked persistently to highlight the problem, notice would not have been taken of it.

Reference has been made to inconsistency. In early December, the Taoiseach said the legislation to be brought forward would not have retrospective effect and that it was never the case that legislation had a retrospective character. A few days later, we found that the Tánaiste had been poorly advised and brought forward retrospectively effective legislation which was subsequently challenged and, happily, thrown out. As I have recorded previously, on 16 December the Tánaiste, as Minister for Health and Children, said it was clearly beyond the Government’s fin[926] ancial and administrative ability to repay all the charges accumulated since 1976. She proceeded to announce a €2,000 advance payment as a token of what might be due. Everything about this scenario speaks of uncertainty and confusion.

  Mr. Parlon: It is the first bit of certainty in 27 years.

  Mr. U. Burke: On the same date, the former Minister for Health and Children, Deputy Martin, said the charges were accepted policy and that no one had said anything about it for 50 years. Deputy Martin owes an apology to the many people Senator Mansergh and many other speakers have mentioned. As Minister for Health and Children he was told about the problem but he walked away and washed his hands of it. When Ministers turn away from their responsibilities it is no wonder that circumstances like those in which we find ourselves arise.

Senator Norris said he heard people making complaints on radio. He said people had called into programmes to ask if they were entitled to what the Senator called a nest egg. The Senator said it was nasty to hear that the people in question were queuing for compensation in keeping with a compensation syndrome. I remind Senator Norris that the deductions were illegal and involved people who, in many cases, could ill afford to pay the charges in question. To suggest that the people who draw down the compensatory payment are seeking to acquire a nest egg will lead to circumstances in which people have no recourse but to take legal action to obtain a refund of illegal deductions. I agree with the Tánaiste that we should avoid the legal route if at all possible. I hope she administers the scheme quickly to avoid a scenario in which it is necessary for people to have recourse to the law to obtain refunds.

The example of a person who said he or she would return to a nursing home the refund he or she expects to receive was referred to during the debate. It is fine for someone who can afford it to take that step and I hope those who are of that frame of mind will do so to facilitate the upgrading of public hospitals to provide extra comfort to patients.

The Tánaiste failed to indicate whether the Minister for Finance was correct to say that the provision of compensation will inevitably lead to cuts. Can the Minister of State, Deputy Parlon, clarify the matter? The Minister for Finance failed to specify whether the cuts would be made to the health budget or across the board, although he clarified matters somewhat after he realised his mistake when someone reminded him of the seriousness of his statement. If these funds must be found, will it result in cutbacks in the Department of Health and Children or across all Departments? The Tánaiste went on the record in December to say that it is administratively impossible to grant compensation to all. There is confusion in the minds of those entitled to a [927] refund. Despite opportunities in both Houses, clarity has not been forthcoming from any Minister making a statement on the matter.

Situations arose where people were refused access to public hospitals and there was nowhere else for them to go but to the private hospitals. Senator McHugh and others have often mentioned the hardship experienced by families forced to sell their property, the home that they built up over the years, in order to finance such hospital stays. Hopefully we will get clarity from whichever Minister might take the responsibility. However, it is important that somebody provides clarity. As a result of the confusion, people and their representatives are going to their solicitors and saying, “Will you find out the details for us?” That is the start of the legal process which would be unnecessary if there was clarity from the Minister.

It is absolutely essential the former Minister for Health and Children, Deputy Martin, apologises for what he did, because he knew about it and walked away from the problem. He can possibly exonerate the Tánaiste and present Minister. He did not care about the hardship endured by so many and it is now time that he stood up and clarified the situation and apologised to those people——

  Mr. Leyden: What about Deputy Noonan?

  Mr. U. Burke: Senator Leyden went on about that issue in 2002. It is exactly the sort of matter which he would raise and the situation to which he would return. That is over and done with. This is a current situation.

  Mr. Leyden: Senator Burke was on the health board.

  An Leas-Chathaoirleach: Do not encourage Senator Burke.

  Mr. Leyden: I did not hear the Senator make many speeches about the issue when he was on the health board.

  Mr. U. Burke: I did, but obviously Senator Leyden was not there on the particular days. He was not always in favour.

  An Leas-Chathaoirleach: The Senator should address the Chair.

  Mr. U. Burke: The Senator was taken off the board by the Minister regarding a particular case, and the work was done after that.

  Mr. Leyden: Is that why it was abolished?

  Mr. U. Burke: He has not yet forgiven that Minister. It ill behoves him to take up the matter. The deductions were mentioned by members of the health board on numerous occasions. It was not known at that stage that they were illegal.

[928]   Mr. Leyden: Senator Burke did not think I would make that point.

  Mr. Scanlon: I welcome the Minister to the House, and am glad to have the opportunity to address such an important issue which will have repercussions for a long time.

The Supreme Court has brought clarity and finality to a matter which was left to fester for 29 years, namely, the legal basis for the obligation on people in long-term care to contribute towards their living costs. This was the policy of 11 Governments and 40 health boards, but we now have clarity regarding the law, certainty about payments and confidence in the way we can proceed.

The Government welcomes the Supreme Court decision and the clarity it brings. People in long-term care, as well as their families, will also welcome this clarity. They now know what has been obscure for 29 years, namely, whether and on what basis they should contribute towards certain costs. Together with the Government and the Oireachtas, people will be confident that the continuation of the policy of contributions towards shelter and maintenance is not only fair, but also constitutional.

We are a society ruled by law, and it must be so and remain so in every detail of public policy and administration. The decision also demonstrates that our institutions of State work. We can only achieve the confidence and clarity that citizens of a State ruled by law deserve when the Government, the Oireachtas and the courts address issues clearly, exercise their powers and meet their responsibilities. Problems arise when real issues are not addressed, when basic problems are finessed or fudged and when policies are not fully grounded in law.

Since the issue was raised, the Government has to ascertain the precise legal position and to put policy on a sound legal footing. It accepted the responsibility to deal with a 29-year legal problem, and has acted to do so. The Oireachtas played its part, as did the Council of State, the President and the Supreme Court. The fundamental failure that has been corrected is the failure to properly implement a 29 year old Supreme Court decision. The delay is deeply regrettable, but the resolution is extremely welcome.

Everybody is now in a position to study the Supreme Court ruling in detail. The Government has acted responsibly and reasonably since the Attorney General provided legal advice on the matter last November. It brought forward the Health (Amendment) (No. 2) Bill in order to put the charges on a sound legal footing. The Government realised that whichever way it addressed the issue of retrospective payments, other than by the course of action taken in the Bill, individual legal challenges were likely. Older people in long-term care and their families would have endured the stress of months of legal argument.

[929] The Government could not have acted quicker or in a better manner to achieve the clarity we have today. Had it decided to make payments back for one year, claims would have been made for payments for two years or more. Had it decided to make payments for two years, claims would have been made for three. Even if the Government had decided to make repayments within the timeframe of the Statute of Limitations, the decision would most likely have also been tested. The Bill has been tested in a manner which is the quickest, most effective, most cost-efficient and least burdensome on those in long-term care and their families. This is why the Government welcomed the President’s decision to refer the Bill to the Supreme Court. As the Taoiseach said in the House, the Government gave the President advice to this effect at the Council of State, fully respecting her absolute discretion on the matter.

There was simply no easy way to deal with the long-standing legal problem about which the Attorney General advised us. There was considerable uncertainty at that time regarding the extent of legal advice given since the Supreme Court judgment of 1976. As a result, Mr. John Travers will carry out a thorough investigation into how the issue was handled over the years by the Department of Health and Children.

Had the Government waited to legislate until it knew everything, we would not have been in any better a position than now, especially those in long-term care. We would still be many months away from legal clarity. Litigation or challenges would have been inevitable whenever it took action. This source of funding available to our health services would also still be in doubt. The situation would have remained very unsatisfactory.

No one in the House suggested an easy way forward last November. Few seemed to remember the policy of charging for shelter and maintenance was supported and implemented by 11 Governments and many health boards, of which many Deputies and Senators were members. Since 1976 no political party ever took a stance or sought a mandate to remove these charges. If political parties assign political blame, it must surely be on an inclusive basis since 1976.

Many Governments served and implemented the policy. It is only fair that all political parties which participated in these Governments take some responsibility in the matter.

Whatever way the Government proceeds, it is important that those owed money are repaid as quickly as possible without having to take legal recourse. We should strive to ensure they are refunded the charges they duly deserve.

  Mr. Ross: This is a political nightmare. We require the impossible, namely, reasonable and mature debate. The situation is ready-made for an irresponsible Opposition, because a mistake has been made by a Government and the person left holding the parcel when the music stops gets [930] the blame which explodes in her face. It is wrong that the Government should suffer the kind of political attacks it has received over this matter. It was not in any sense the fault of the Tánaiste, Deputy Harney, that the Government was landed in this situation.

It is regrettable, albeit inevitable, that for several reasons the matter should have become a political football. It is becoming increasingly obvious that the issue of old people handing over their pension books and money being taken from them has been going on since at least 1976. We will never know whether everybody noticed it and said nothing, or nobody noticed it, or some people noticed it and drew it to the attention of various Ministers. We do know, however, that it has been going on for nearly 30 years while Ministers of various political hues were in office. In this country, Ministers for Health tend to present a roll of honour, which in other circumstances would be very honourable, but it is absurd to begin attributing blame to anyone for this matter. It would be political opportunism to blame the Tánaiste. It does not stick.

Children and the elderly represent two groups in society which are extraordinarily vulnerable and from whom it is easy to make political capital. As speakers on the Government side have said, the elderly are going to become a focus for great debate in the years to come because there will be many more of them. As their numbers grow they will have more voting power, will attract more consideration than they have been used to and will form pressure groups. Such lobbying groups will be successful because they will carry greater numbers than heretofore, and their members will be more articulate and will live longer.

The proposed compensation scheme has become a political football, which is a pity. However, the political argument can be defused by acknowledging the fact that the Tánaiste, Deputy Harney, has tackled this problem in a fairly forthright way. On 16 December, in a remarkably honest statement, she said the Government could not pay all the amounts that had accumulated since 1976. She then agreed to pay what turned out to be a token amount of €2,000. After that, the legislation was referred by the President to the Supreme Court and we have come across a situation which is a complete and utter mess. It is an entanglement from which it will be difficult to emerge.

We should thank the President for having referred the Bill to the Supreme Court and for fulfilling the primary duty for which she is elected. The Government may already regret the endorsement it gave her because she has caused a great deal of headache but that is exactly why she is there. She should be congratulated.

Senator Norris pointed to a practical problem that will now emerge, which is that we are a pretty sceptical and cynical nation when it comes to dealing with a big pot of money. It is essential that all those who are injured, damaged, ill [931] treated and have had money taken from them should be compensated, as well as the heirs of those who are deceased. Some will have paid money for the upkeep of their relatives, which they did not have to pay. When sums as great as €1 billion are being spoken of, however, there is a danger that people who were inconsiderate to their elderly relatives and contributed nothing will make claims to which they are neither financially nor morally entitled.

I do not know how the Government will get out of this dilemma because I suspect there will be an enormous number of unjustified claims which will be extremely difficult to take on. It is a courageous Government that stands up to people left holding the baby or, in this case, the elderly. Whereas every single penny should be paid out for justifiable claims by people who were treated badly, there is a real danger in separating those from others who feel that this is an opportunity to reclaim funds to which they are not entitled. It is difficult for politicians or governments to fight that type of battle. When individuals with apparent hard-luck stories go to the Supreme Court, there is a media frenzy. Some of the time these are worthy cases, but once in a while they are not. This is a real difficulty for the Government so we must ensure that the compensation pot is not exploited.

I wish to say a number of things about the debate that is opening up on the elderly and nursing homes. If we are to be honest about it, the taking of pension books by nursing homes or anyone else was despicable. It is difficult, however, to deal with situations of this kind. It may not be a nice thought but we must recognise that, on the whole, nursing homes are in the business for the money. Private nursing homes are established in order to make money, although some of us may find that difficult to reconcile with the idea that medicine and medical care should be an almost philanthropic duty and something to which we are entitled. Nursing homes can be extremely exploitative, ruthless, inhuman and profit-driven. That notion rests uneasily with the idea that humanity comes first. We need to recognise that problem and tackle it.

In the time remaining, I wish to make one point.

  An Cathaoirleach: There are three Senators offering and as time is limited I would like to accommodate them.

  Mr. Ross: I want to make this point quickly so the Minister of State might address it.

  An Cathaoirleach: The Senator’s time is up.

  Mr. Ross: I have been uneasy for a long time about the fact that people often appear to be locked in nursing homes. They are not allowed out because it is deemed, perhaps by doctors, that [932] they might escape, be a danger to the public or to themselves, and so are not fit to leave.

  Mr. Leyden: The Senator is correct.

  Mr. Ross: I do not know what is the legal position but perhaps the Minister of State can consult his civil servants about it. I do not know whether it is legal but I am uncomfortable with the fact that people cannot get out of nursing homes without permission.

  An Cathaoirleach: The Senator will have to conclude.

  Mr. Ross: Should that practice continue to be allowed?

  Mr. Leyden: I welcome the Minister of State but I note that, rather unusually, no officials of the Department of Health and Children are here. As far as I know, it is the normal practice for them to be present in these situations.

  An Cathaoirleach: That is not in order.

  Mr. Ross: It is true, though.

  An Cathaoirleach: I know it is true but it is still not in order for the Senator to refer to it.

  Mr. Ross: It is true and it is unusual.

  An Cathaoirleach: It is not in order for the Senator to refer to it.

  Mr. Leyden: The Minister of State is here to convey the Government’s view but we have to take into account the people who are compiling the views.

  An Cathaoirleach: Senator Leyden should continue.

  Mr. Leyden: I welcome the Minister of State, Deputy Seán Power. I will probably be repeating many of the statements already made on this issue. I was a Minister of State at the Department of Health between 1987-89. I did not have responsibility for nursing homes so I am not answerable in that regard.

The Government has welcomed the clarity provided by the Supreme Court judgment, notwithstanding the fact that it is causing major difficulties for it. Both the Taoiseach and the Tánaiste made the point that at the Council of State meetings, which are held in private, they advised President McAleese to refer the Bill to the Supreme Court. The contentious provision will be constitutional when it is passed by the Houses as part of new legislation.

It is an understatement to say that the situation is a mess; it is an unmitigated disaster as far as the Administration is concerned. It is the task of the Government to bring clarity to the matter and [933] to take appropriate action, as is required to ensure the Supreme Court decision is adhered to.

Approximately 14 Bills have been referred to the Supreme Court over the years, only two of which have been deemed unconstitutional. It is a major decision for the Supreme Court to make this ruling. Ambiguity and difficulty have surrounded the question of charging for nursing homes for a long time. The same was true of private nursing homes. Where a bed was not available for a person with a medical card in a public nursing home, he or she had no alternative but to seek a bed in a private nursing home. This is where a difficulty will arise in regard to repayments as a result of the Supreme Court decision.

The lawyers are already gathering to make claims. A lawyer, Mr. Fox, was on “Today with Pat Kenny” the other day giving advice. He urged people to apply immediately due to the possibility of the Government invoking a statute bar for the seven-year period back to 1998. That is the advice that was given to listeners on that occasion.

The Government made a decision last year to give an ex gratia payment of €2,000. The sum of €15.8 million has been repaid to 8,000 nursing home residents. That information appeared in the Irish Independent on 22 February. I assume the information is accurate. Such repayments were quick, effective and efficient.

I previously raised the case in the House of a nursing home resident in Roscommon. Deductions were made from his contributory old age pension. However, a British pension coming to the institution was seized without his permission and added to the fund. Many such anomalous situations occurred. This resident is eligible for a refund of his British pension even though it was only taken for a short time. I understand a number of other pensions were secured by administrators on the basis of the considerable cost of nursing home beds. The actual cost of a public nursing home bed could be in the region of €500 per week. The Minister of State will probably have the figures.

Public nursing homes are well funded and provide the best service. The Sacred Heart Hospital in Roscommon is a case in point. It has a full administration, nursing staff and a medical orderly on duty every day. It was brought to my attention over the years that medical cards were taken from people. As a former chairman of the Western Health Board many issues came before me. I was told that when a person was admitted to a public nursing home, he or she was given full care and attention, including all drugs and medical attention. That seemed logical. There was no need for a medical card when a doctor was on call all day every day. Were patients deprived of the services of their own doctor in the nursing home and did they have to rely on the hospital orderly? These issues now arise. Senator Ross made a very good point. He asked how much freedom nursing home residents have.

As chairman of the Western Health Board I put forward a proposal that there should be a [934] holiday scheme for nursing home residents. One can make suggestions but get very little reaction to them from the executive. I considered that people who were fit and able should be given two weeks away, be it in another health board institution, private institution or a centre abroad. There is no reason they could not be given a proper break. I respectfully suggest that with money coming into the system people should be encouraged to spend the money they are refunded and enjoy their years ahead. The same applies to the €500 million bonanza that will be paid back to residents. So be it. The money will be recycled in the State. If anybody thinks that long-stay residents of nursing homes will head off or invest in imported products he or she can forget about it, the money will be spent in the State. Good luck to those people; I wish them well. I hope they enjoy their freedom to spend money. Perhaps some of them will decide to leave their institutions and go back home and avail of nursing assistance there.

  Mr. Feighan: They might travel abroad for cheaper nursing care.

  Mr. Leyden: They may do as they please.

A redress board should be established to assess the claims of nursing home residents and those of other institutions, including psychiatric hospitals, which will also be open to claims. A redress board would be more effective than the system that is proposed. Some families of deceased nursing home residents might be well advised not to put in a claim because they may be opening a can of worms as far as claims are concerned, as the State will also investigate the circumstances surrounding the issuing of the pension in the first instance.

As public representatives we will receive representations from nursing home residents and their families. We should commend the Minister for grasping the nettle and taking action where it was required. I also commend the Opposition for stating its support for the proposed Bill that will impose charges. Opposition Members support the concept of charges being levied on people for nursing home care. I received documentation regarding access to private nursing homes and the rules concerning them. Residents of private nursing homes who have medical cards will also be eligible to claim as they also had to pay for their care.

  Mr. Feighan: I wish to share time with Senator Henry.

  An Cathaoirleach: Is that agreed? Agreed.

  Mr. Feighan: I wish to highlight the level of care that many elderly people have been getting. It is time to pay tribute to the nurses and other staff of nursing homes for their valiant efforts over the years to provide care which goes well beyond monetary value.

[935] My party highlighted the issue last year as people were still being charged illegally for nursing home care. The previous Minister for Health and Children, Deputy Martin, was given repeated warnings about the situation. While I welcome the Supreme Court decision, it pointed out that any money accruing to patients or their descendants was not a windfall but rather an entitlement which was wrongly denied by this and other Governments. The court stated that the property rights of the weak and vulnerable particularly merited attention. I do not wish to play a political game but, as politicians, we should stand back and consider that the weak and vulnerable in our society did not receive the response to which they were entitled. I do not believe anyone intended to “do” these people but their rights were overlooked and I hope we never face the same situation.

I also hope Senator Leyden’s comments do not represent a Government threat to the effect that people who seek to be reimbursed for money taken will be examined to find out where their pensions were obtained in the first place. I wish to clarify if it is Senator Leyden’s policy or that of the Government. We should not place any obstacles in the way of people seeking that to which they are entitled.

  Mr. Leyden: It is not Government policy. I am suggesting——

  Mr. Feighan: The Senator is speaking on behalf of the Government.

  An Cathaoirleach: Senator Feighan without interruption.

  Mr. Feighan: It cannot be Government policy because a mistake has been made.

  Mr. Leyden: Only Ministers speak on behalf of the Government. A Senator does not.

  Mr. Feighan: We should ensure it is convenient for people to be reimbursed and no obstacles should be placed in their way. I am sure the Minister of State will make sure of that.

  An Cathaoirleach: I must point out that Senator Leyden does not speak on behalf of the Government.

  Mr. Feighan: That is what I wanted to clarify.

  Mr. Leyden: I made a very helpful suggestion.

  An Cathaoirleach: Order, please. Senator Feighan without interruption.

  Mr. Feighan: It is not a helpful for any member of the Government parties to suggest roadblocks to place in the way of people who are entitled to be reimbursed having been short-changed by the Government for too long.

[936] The Supreme Court decision is a stinging rebuke by the highest court in the land. The meagre offer of a payment of €2,000 to compensate for a gross breach of constitutional rights was wrong. How many medical card holders were forced to go into private nursing homes due to the lack of public nursing beds? Those people could also be eligible for compensation.

  Dr. Henry: This is the most astonishing piece of bureaucratic bungling by the Department of Health and Children which there is no point discussing. However, these issues seem to recur and I ask the Minister of State to address the issue in his reply. For example, I was amazed to find a Department of Health and Children estimate of 35,000 extra people being in need of medical cards was, in fact, only 50% of the number which eventually applied for them. This sort of occurrence is inexplicable except when one discovers that officials in the Department of Health and Children were given the details of the over-70s free medical card scheme days before it was introduced. Such important schemes should not be pulled like a rabbit out of a hat by the Ministers for Finance or Health and Children; there should be proper planning.

Will the Minister of State use this occasion to plan for people in old age who may not want to go into nursing homes? At present, there are people who feel they have been robbed of their pensions by being sent to nursing homes when they might have far preferred to have stayed outside if more facilities had been available.

During the debate on child care yesterday, I raised the issue of the scheme in France whereby one can use special social care cheques which can be given to people who work in one’s home caring, for example, for children or elderly people. The cheques can be up to a value of approximately €5,000 to €6,000. They can be obtained in banks and the money can be used tax free while the person who receives the cheques can accumulate them up to a taxable income. This means people are not engaged with the black economy. It provides a very good reason for giving those who pay for the care a tax free allowance in this way because the Exchequer will take in more tax. The promotion of day care hospitals and respite care for carers will help the situation so that we do not have to have the number of people in nursing homes who do not want to be there.

  Mr. S. Power: The decision of the Supreme Court on 16 February 2005 in the matter of Article 26 of the Constitution and the Health (Amendment) (No. 2) Bill 2004 has brought clarity to the matter of the provisions of the Bill. The Supreme Court found the retrospective provision of the Bill in making lawful the imposition and payment of such charges in the past unconstitutional in so far as this concerns the property rights of citizens. The Supreme Court did not find the approach to the proposed charges in the Bill [937] to be repugnant to the Constitution so the prospective provisions to allow such charging in the future were not found to be repugnant to the Constitution.

The debate in this House has, in general, been constructive and fair, with contributions from Members on all sides. A number of Senators asked why the practice of charging continued for so long. In setting up the Travers inquiry, the Tánaiste has tried to establish the answer to that question. In seeking apologies Senator Burke was jumping the gun in this regard. In fairness, we should await the findings of the report rather than jump to conclusions before it is published. It is due to be published in the near future when we will debate the matter in more detail.

The Department of Health and Children is studying the Supreme Court judgment in detail and will take on board all the consequences for policy and law arising from the judgment. It is very important that charges for long-stay care are placed on a sound legal basis, which is what we are endeavouring to do. The decision of the Supreme Court allows for the introduction of a new Bill to provide the legal basis for charges for inpatient services in long-stay institutions. The Government yesterday approved the Bill that provides for the imposition of such charges in respect of all persons irrespective of their eligibility status for health services. The intention is that the Bill will be presented to Dáil Éireann with a view to its passage through the Oireachtas as soon as possible.

It is the position currently that charges are not being imposed. Following receipt of further advice from the Office of the Attorney General, the Department of Health and Children instructed the health boards to cease imposing any financial charges on fully eligible people in receipt of in-patient services in public long-stay institutions with effect from 9 December 2004. By way of a goodwill gesture the Government agreed to have an ex gratia payment of up to €2,000 made to those with full eligibility who have paid charges and who were alive on 9 December 2004. The Health Service Executive is making the necessary arrangements in regard to this scheme and so far payments in excess of €15.7 million have been made to approximately 8,500 individuals.

It is intended to introduce a repayment scheme which will replace the ex gratia schemes. A special Cabinet sub-committee comprising the Taoiseach, the Tánaiste, the Minister for Finance and the Attorney General has been established to consider the issue of repayment in light of the judgment. The sub-committee is meeting today to consider all the options for an efficient and effective repayment scheme, including the Statute of Limitations, without the need for litigation. This matter will be considered at full Cabinet again next week. It is estimated that at least €500 million will be repaid. Any payments made under the ex gratia scheme will be taken into account in calculating any further moneys to be repaid.

[938] The Government is determined to ensure that the repayment scheme which will be put in place is fair and reasonable to all concerned. The speed of action in setting up the Cabinet sub-committee coupled with the immediate Cabinet follow-through demonstrates the seriousness and concern with which this issue is viewed. It is the Government’s intention to devise a scheme which is fair and one which will ensure that the people entitled to a repayment will be paid as quickly as possible. We will put in place a scheme that will ensure that those who are entitled to compensation will not require legal assistance to collect that payment.

5 o’clock

It is important to note that what is at issue is the legal basis for the imposition of charges for those receiving inpatient services in public, long stay institutions. The principle of imposing charges is not at issue. As has been noted by previous Governments over the past 30 years, it is fair and reasonable that those in receipt of publicly provided residential long-term care should make some payment towards accommodation and daily living costs if they can afford to do so, just as they would if they were living in the community. This principle was most recently underlined in the health strategy, Quality and Fairness — A Health System for You. It supports the aim to provide as high quality a service as possible, to make the most equitable use of resources and to help maximise the availability of services.

It is recognised that quality care is expensive and that the bulk of the cost of providing a high standard of quality care should be borne by the Exchequer. It is estimated that the charges imposed on those in public nursing homes represents approximately 10% of the overall cost of care. It therefore represents a modest contribution towards the total cost of treatment and maintenance. Having listened to the contributions to this debate, that view appears to be shared by the House.

I appreciate this opportunity to speak to Senators on this matter and I thank them for their contributions.