Dáil Éireann debate -
Thursday, 16 Dec 2004

Vol. 595 No. 4

Health (Amendment) (No. 2) Bill 2004: Second Stage

Tánaiste and Minister for Health and Children (Ms Harney)

I move: "That the Bill be now read a Second Time."

In the debate on this Bill in the House today, I believe it is important that we address the issues with clarity, purpose and fairness. It is important that people in long-term care and their families should have clarity about how care will be provided and paid for. It is important, too, that any charges made by the State are on a fully legal basis, as it is that we should have confidence in our public administration operating effectively in the public interest at all times. It is important, too, that where mistakes are made, they are recognised, responsibility is taken and the lessons are learned and applied.

I wish to deal with three areas, the provisions of the Bill, the scheme of repayments the Government will put in place and the issues arising from the handling of this question within the Department of Health and Children. I am placing on the record of the House a number of documents as an annex to my prepared remarks. I am putting all the facts I know before the House. This is the only way each of us can form clear and fair assessments.

I wish to introduce formally the Second Stage of the Health (Amendment) (No. 2) Bill 2004 to the House. The purpose of this Bill is to provide a legal framework for the charging of patients in long-term care in health board run institutions and publicly contracted beds in private nursing homes. The Bill will establish a sound legal basis for the long established practice of health boards charging for the costs of maintenance in institutions providing long-term care.

Most people accept that it is fair and reasonable that those who can afford to contribute to the cost of their long-term care should do so. This has been implemented by successive Governments, and by Ministers for Health from all parties, since 1954. The charges raised are used to support the provision of care for those in long-term residential care. These charges currently generate approximately €100 million for health boards each year. The cost of long-term care is clearly more than this amount. The loss of this income would have an adverse effect on our ability to provide the health and caring services people need.

I am circulating to Deputies a brief background note on the history of the legislative basis on which charges have been raised up to now. I am also circulating a report by the Secretary General of my Department, prepared at my request for the Government meeting on Tuesday. The basis for charges, made since the McInerney Supreme Court judgment of 1976, arose from a circular issued by the then Department of Health to health boards. This circular, which is included in the annexed documentation, authorised a practice by which the CEO of a health board could regard patients as not meeting the criteria for full eligibility while remaining in long-term care, on the basis that the necessary GP and surgical services were being provided for them. The decision to withdraw medical cards and full eligibility in this manner was taken to enable a charge for inpatient services to be raised under the 1976 regulations, which provided for charging for people other than those with full eligibility. The extension of full eligibility in 2001 to all persons over 70 years of age, irrespective of means, was not the reason the practice of charging in this way was found to be without a sound legal basis. The flawed basis for charges for anyone with full eligibility goes back to the 1976 circular which continued to be implemented after the 2001 decision.

The Bill provides for an amendment to section 53 of the Health Act 1970 as follows. It replaces the existing enabling provision in subsection (2), which provides the Minister with discretionary power to make regulations, by a provision which requires the Minister to make regulations in order to impose charges on all persons, that is, those with either full or limited eligibility. A new subsection (3) is inserted which specifies the categories of person exempted from charges imposed under subsection (2). A new subsection (4) is inserted which empowers the chief executive officer of a health board to reduce or waive a charge having regard to the financial circumstances of the person and with a view to avoiding undue financial hardship for that person. It is intended that the regulations will impose a maximum weekly charge of €120, which is approximately 80% of the weekly rate of the maximum level of the non-contributory old age pension. The regulations will also make clear that individuals are to retain a minimum amount of pocket money of €35 per week. A new subsection (5) is inserted to provide, among other things, that charges levied under section 53 of the Health Act 1970 prior to 14 December 2004 are and always have been lawful. My Department is satisfied, in the light of legal advice available to it, that this is constitutional and in accordance with the European Convention on Human Rights. The Department has received advice from the Office of the Attorney General which includes advice from outside counsel including Dr. Gerard Hogan Senior Counsel, a leading expert in Irish constitutional law and a co-author of Kelly's The Irish Constitution. A new subsection (6) is inserted to provide that the retrospective regularisation provision of the new subsection (5) does not apply in the case of a charge which is the subject of civil proceedings instituted on or before 14 December 2004 for the recovery of the relevant charge. A new subsection (7) is also inserted to provide that the provisions of the new subsection (5) do not affect any other ground which may be raised in civil proceedings to debar the recovery of the relevant charge. A new subsection (8) is inserted to make it clear that any current regulations remain in force. This is to make it clear that the Bill does not interfere with other existing regulations. A new subsection (9) is inserted to provide that the charges shall only apply for inpatient services after a period of 30 days or periods aggregating 30 days within the previous 12 months. The new subsection (9) also limits the weekly charge to an amount that does not exceed 80% of the maximum of the weekly rate of the old age, non-contributory pension. A new subsection (10) is inserted to clarify that the period of 30 days referred to in subsection (9) begins to run immediately the person concerned is provided with inpatient services. A new subsection (11) is inserted to define "in-patient services" for the purpose of charges made.

These provisions of the Bill implement the Government's policy in this area, which is that it is reasonable that charges should be made, that charges must be on a sound legal basis and that clarity is brought to charges made in the past so as to avoid needless litigation and potentially large instability in health care funding. As I said at the outset, mistakes made should be recognised and redress should occur if at all possible. The Government recognises that a mistake has been made for 28 years on the legal basis for charges. Notwithstanding the fact the policy had consistent support and that people did actually receive a benefit for their payment, the Government believes that some repayment should be made because a mistake was made. It is clearly beyond our financial and administrative ability to repay all charges since 1976. We have therefore decided, by way of a goodwill gesture, to make repayments to people with full eligibility who have paid charges to date. Approximately 20,000 people will benefit from this repayment. Each person will receive a repayment of up to €2,000. These payments will be made automatically, where possible, as soon as possible in the New Year. We will also advertise to allow people to apply for a payment. This is to ensure that no-one who has made payments is left out, or is unduly delayed in receiving payment. For example, there may be people who may previously have been in long-term care but have since left or moved to another setting and records may not be as readily available. The Government believes this is a reasonable and fair way to recognise that a mistake was made. People who are now in long-term care will benefit directly and exclusively. Administrative and legal costs will not absorb any part of the repayment and it will be done speedily and fairly.

At the end of 2002, the South Eastern Health Board, in the context of a number of claims about charges by and against the board, obtained legal advice on a range of issues related to long stay care in both public institutions and private nursing homes. An extract from the legal advice was handed to the Department at a meeting with the South Eastern Health Board on 11 March 2003. The broad content of the advice was also made known by the South Eastern Health Board to the CEOs of the other health boards. The relevant aspects of this advice were considered within the Department over the following months. It was not, however, brought to a particular decision point during this period.

The charges for long-term stays in public institutions were discussed in some detail at the end-year review meeting between the Department's senior management and the CEOs of the health boards on 16 December 2003. I am circulating the minutes of that meeting to the Deputies. It was concluded at the meeting that it would be necessary for the Department to get a definitive legal assessment as the first step in drawing up legislation on eligibility and charges.

Arising from that meeting, a small group was convened within the Department to prepare a position paper on the legal issues surrounding charges for long stays in public institutions. This position paper was drawn up at the end of January 2004, as was a letter to the Office of the Attorney General requesting legal advice that would have been signed by the Secretary General. Unfortunately, this letter was not sent at that time. Following questions on the issue from Deputies Kenny and Perry in the House in October 2004, I immediately sought legal advice from the Office of the Attorney General. The legal advice provided on 5 November made it clear to me that new primary legislation would be required urgently to underpin a policy that requires persons to contribute to their costs of maintenance, costs such as shelter, food, bed and clothing, in a public institution or a contract bed in a private setting.

In light of that advice, work began immediately in the Department on the preparation of the necessary legislation. I made it clear in this House that we would bring in legislation before Christmas if possible. I received further advice on 8 December from the Attorney General on legal problems arising from continuing to make such charges. On foot of that advice, a letter was issued on my instructions to the chief executive officers of the health boards and the Eastern Regional Health Authority asking them to stop making such charges immediately, pending the introduction of amending legislation. The CEOs of the health boards confirmed last Friday that they had taken the necessary steps to do so.

Drafting of the legislation continued between the Department and the Attorney General's office and, when it was completed, I was in a position to bring a memorandum to Government last Tuesday. That is how we have come to today's debate on this Bill.

Clearly, serious issues arise from how this important legal issue was handled in the Department of Health and Children. The Government proposes to deal with the charges by new law and by making ex gratia repayments. There is also a responsibility on us to deal with public management and administration issues. I have asked Mr. John Travers, a retired head of Forfás with a distinguished career in the public service, to examine the management of this issue in the Department and, in particular, the reasons the Attorney General’s advice was not sought at the earliest possible time. I will ask him to identify lessons that can be learned and applied from these events, in the interests of more effective public administration in the Department of Health and Children and elsewhere. I intend to give him the greatest latitude possible for recommendations in this regard and I expect to receive his report by 1 March next year. I will publish the report.

I am not interested in blame. I am interested only in achieving excellence in public administration, in the interests of patients, public and staff. There is every reason for the Department of Health and Children to strive for and to achieve excellence, particularly at this time of change when its role will be more focused on policy, legislation and evaluation. I look forward to this report helping us to achieve that.

The legislation before the House today will bring clarity to an area which has not operated on a sound basis for nearly 30 years. This is a genuine attempt to correct that flaw so that charges for long-term care will now have a sound legal basis. This Bill will ensure that the income from charges will continue to support the provision of quality services to those in long-term care. If we do not allow this funding to be retained, the loss of resources for the health services is estimated to be approximately €8 million to €l0 million per month. It has been accepted that these charges, as contributions to the cost of care, are fair and reasonable.

I commend this Bill to the House.

Dr. Twomey

I wish to share time with Deputy Perry.

An Leas-Cheann Comhairle

Is that agreed? Agreed.

Dr. Twomey

There are two issues at stake, as far as I am concerned. One is bad government and the second is how we treat the elderly. I am disappointed with the Tánaiste's approach in her speech. She tries to put some blame on the elderly for the cost they will impose on the Exchequer and implies that there will be a reduction in other health services if this problem is not sorted out now and if the State has to repay the elderly patients the charges that were made illegally on them for years. If we do not push this legislation through the House today, somehow they will cause problems for the rest of the health service. That is most unfair.

The Tánaiste also said she did not wish to blame anybody and that we must examine public administration. This was not a problem with public administration. It was a problem with how the Government considered the issue when it was raised. There is no need to go back to 1976. There might be a need to do so when one is framing legislation but there is no such need when examining how this matter was messed up, which is what happened. The many fine words we have heard from this Government on care of the elderly were simply that, fine words. The Government is not really committed to giving the elderly a fair chance. That is why I am even more disappointed, therefore, when the Tánaiste seeks to blame the elderly for this problem.

According to today's media reports, if patients were able to stand up for themselves, the health boards did not charge them. The health boards have been making a decision on this issue for at least two years. Anybody who protested against the charges was not charged. The patients who said nothing or who were not strong enough to stand up for themselves were charged. It was the poor and the vulnerable on whom the charges were imposed by the health boards. The Tánaiste did not make that clear.

The previous Minister, Deputy Martin, who published 140 reports, admitted that when he received the 80 page legal document he did not read it. He did not even ask his departmental officials if there was anything in it that might be of concern. Of all the reports published by that Minister, this report had the potential of incurring a charge of €8 million per month on taxpayers but he did not consider it necessary to read it. The character Del Boy in "Only Fools and Horses" has an appropriate saying for this, although I am not sure if the Leas-Cheann Comhairle will allow me to refer to a Minister as a "plonker". It is terrible behaviour on the part of a Minister to admit that he never bothered to read the report, especially when the health boards were pressuring him and the Department to give them a clear and defined direction on these charges. The report was ignored.

What happened since this issue was raised? Deputy Kenny raised the matter in the House on 27 October. The Tánaiste did the right thing and sought advice on it straight away. However, there have been contradictions since then. What about retrospection? The Taoiseach only responded to Deputy Kenny on 7 December although it must have been a topical issue in the Cabinet before last Tuesday. The Taoiseach said: "As I understand it, there will be no retrospective element in the legislation." Later, he continued: "To deal with this issue we must have primary legislation. There is no retrospective factor in the legislation which is never the case anyway — we do not have retrospective legislation."

The length of time we have been given to examine the Bill has been too short to have any discussion of it with other parliamentarians, to seek legal opinion or even to allow outside interests to express their views on it. The Bill was only published yesterday morning and we are expected to rush it through the House before 3.30 p.m. Numerous people have tried to contact me to offer their opinions on the Bill but we simply cannot discuss it. There is no time.

A great deal has been said about retrospection. Apparently, this case is unique because of the amounts of money and the number of people involved. The Minister could be challenged on this legislation in court. She should clarify if the legislation is watertight or if we will be back in the House in a few months discussing it again. That appears to be the case from the legal advice we have seen. Given that the current Minister for Justice, Equality and Law Reform was the Attorney General in 2001, perhaps it is not surprising that the then Minister, Deputy Martin, sought advice from him. The Minister for Justice, Equality and Law Reform has been quite good at re-introducing legislation to the House as well. It has been happening continuously in the House for the past two years, which is disgraceful.

I cannot say much on the legislation at present. We are extremely disappointed with how it is being pushed through the House. It is difficult to give an opinion on where this legislation will lead. We are aware of the Minister's intention. She is trying to clamp down on the illegal charges that were imposed on patients in public nursing homes since 2001. When the Tánaiste responds she should focus on 2001. That was the year this issue was raised. The huge charges involved started in 2001. The Tánaiste should try to find out the charges that were incurred by the taxpayer prior to and after 2001. There will be a significant difference between them.

The Tánaiste is trying to muddy the waters a little by referring back to 1976. From a legal point of view she is correct to refer back to 1976 but this originates in 2001 and in the way this Government operates, the inefficiencies and the lack of accountability. That is the year the health boards became concerned about these charges and wrote to the Department about them. It is disappointing that the then Minister decided to ignore the issue but when the health boards made their own decision on it, which was that if somebody complained or raised the issue with them they would not charge those patients, it was a tacit admission by the health boards that it was wrong. Why was this not raised at ministerial level? That is disgraceful.

It is a disgraceful way of governing and a disgraceful way to treat elderly patients. It was discrimination between those who could stand up for themselves and those who could not. The patient population involved is made up of elderly and vulnerable people, who need us to stand up for them. As the Tánaiste knows well, all patients have difficulties dealing with health services. Many are intimidated by the way the service operates and the manner in which they are treated. For the House to treat patients this way is absolutely disgraceful.

I commend Deputy Perry, to whom I will hand over, on the hard work he has done in this area. If it were not for his hard work and the pushing of the issue in the House by Deputy Kenny, the current regime would have been allowed to continue. It might have been another ten to 15 years before we saw the Government rush through another Bill to clean up another mess. When the Tánaiste explains the matter, she should be more clearcut on the issues I have raised. We are being misled to a degree by what is being said in the House. A certain amount of spin came through in the Tánaiste's speech. We need more clarity.

Mr. Perry

I thank Deputy Twomey for sharing time. I give credit to the Tánaiste for acting decisively on the issue in the time since it was raised by Deputy Kenny at the end of October. In her contribution, the Tánaiste outlined clearly the background to the current difficulties. I was Chairman of the Committee of Public Accounts when it was proposed to extend medical card provision to the over-70s. The Comptroller and Auditor General produced a report which indicated the proposal was ill-thought out. It constituted an election ploy which when introduced by the IMO quadrupled the cost of servicing medical cards. The number of cards which would be required was underestimated by 39,000 as the Department could not calculate the number of over-70s who would qualify. Whereas the original estimate was €19 million, the regime currently costs approximately €60 million.

The legislation introduced to give effect to the provision of medical cards to all persons over 70 years was seriously flawed. It is clear that in legislation health boards were not legally entitled to extend full eligibility to people over 70 or to seek a contribution from them. The 2001 Act introduced for the over-70s confers clearly full eligibility to free inpatient services. Unlike previous legislation, it does not allow for eligibility to be diminished or for charges to be levied. Consequently, since the introduction of the Act, these charges should not have been levied on persons over 70 to whom medical cards have been issued. Charges should not have been levied for long-term care in community nursing units, district hospitals and private nursing homes in which the State has contracted beds for the provision of long-term care.

I refer the Tánaiste to section 45 of the Health Act 1970, which is important in the context of the case she has made with reference to the 1976 Act. The provisions of section 45 of the 1970 Act permit the levying of charges and were upheld by the Ombudsman in 2002. According to the section, a chief executive officer of a health board is empowered to decide that a person unable without undue hardship to arrange general practitioner services for himself or herself or for his or her dependants shall have full eligibility for health services. A chief executive officer shall, under the section, make a decision subject to his or her assessment of the means of the person on an individual basis and, if approved, will issue a medical card as evidence of full eligibility. Section 52 of the same Act provides that a health board shall make available inpatient services to a person with full eligibility. According to section 53, the provisions of which can be said to apply under the 2001 Act, charges shall not be made for inpatient services made available under section 52. Section 53 allows the Minister for Health and Children, with the consent of the Minister for Finance, to make regulations providing for the imposition of charges on persons who are not persons with full eligibility specifying the amounts of the charges or the limits to the amounts of the charges to be so made.

Under the Health (Charges for In-patient Services) Regulations 1976, the Minister decided a charge towards the cost of inpatient services provided under section 52 of the Health Act 1970 may be made on a person who is not a person with full eligibility where the person has no dependants and has been in receipt of inpatient services for 90 days or a period aggregating in total 90 days within the previous 12 months. This is the provision according to which charges were allowed to be levied. Under the Health (Charges for In-patient Services) (Amendment) Regulations 1987, the Minister decided the 90-day limit should be reduced to 30 days.

This is the body of legislation which provides for the charging of persons in long-term care. It is important to record that the Ombudsman confirmed independently that this was the appropriate legislation in his annual report for 2002. I refer the Tánaiste to extracts from the Ombudsman reports of 2001 and 2002 in which details of refunds are outlined. Refunds were made on the basis of the body of legislation to which I have referred. The Ombudsman confirms the legislation as the appropriate legislation for the imposition of charges.

As I understand it, a person admitted to long-term care who does not have full eligibility or dependants will, after 30 days, be charged by the hospital a daily amount based on his or her assessed income less an amount the person is allowed to retain as personal pocket money. This income is used to fund services at the hospital to reduce the need for State funding. Persons assessed to have full eligibility while living in the community may have that eligibility withdrawn 30 days after admission to long-term care. This is done on the basis that the hospital is providing fully for the person's medical needs thereby removing the undue hardship criteria. Up to 2001, a chief executive officer had the power to decide to diminish the status of a medical card and impose a charge.

I appreciate fully that the Tánaiste has come to the House and made a very frank statement and provided the back-up documentation. Clearly, the circumstances in question developed on the watch of the previous Minister, Deputy Martin, who received an 80-page report on the matter. The circumstances should be considered in the context of our talk of caring and sharing. The people in question worked tirelessly to build the State and are on low incomes yet chief executive officers were given the power to reduce the status of their medical cards to hold on to their pensions.

I will move two amendments on Committee Stage which I hope the Tánaiste will examine carefully which seek to ensure that within three months of the passing of the Health (Amendment) Bill 2004 the Minister for Health and Children shall lay a report before each House of the Oireachtas detailing the merits and feasibility of establishing a centralised patient database to be used by every hospital and place of care. As such databases have not been available in hospitals, bad management has led to cases in which the next of kin of persons have found funeral expenses could not be met. In health boards where no records were kept, people in many cases had to depend on the death grant. That is hardly good enough given our talk of caring and sharing. The people in question were on pensions of €160, which is why I am delighted the Tánaiste is providing for the minimum retention of €35 per week.

I will also seek to provide on Committee Stage that within three months of the passing of the Act, the Minister for Health and Children shall lay a report before the Houses of the Oireachtas detailing the merits and feasibility of providing for the creation of contracts between a caring establishment and next of kin. It is important to make such a provision as it is a sad fact of life that there are cases where fragmentation has occurred in a family of five or six people and no one wants to take responsibility for a person in care.

When I was its Chairman, the Committee of Public Accounts received numerous letters from next of kin who were completely disgusted by the management of patient accounts within institutions. I hope the Tánaiste will study carefully my amendments in the context of the extent of the Government's error in its inability to calculate the number of persons aged over 70 in the State. While the Tánaiste might be able to provide me with statistics on the exact number of persons in State beds, we require accuracy, accountability and transparency on pensions and incomes.

The Tánaiste must realise that welfare payments are now being paid through health boards and the Minister, Deputy Brennan, who is in the Chamber, will confirm that. We are not talking about pensions now but the level of payments channelled through health boards. We need transparency in this matter. We also need a database and someone familiar with accounts to deal with this area. I hope the Minister will deal with my Report Stage amendments effectively.

On the legality of the charge, persons who were assessed as having full eligibility while living in the community had that full eligibility withdrawn on admission to long-term care not later than 30 days after admission on the basis that the hospital was providing for the person's full medical needs, thereby removing the undue hardship element. That approach was in conformance with the law up to 2001 but the decision to grant full eligibility to persons aged 70 and over from 1 July 2001 has created this problem. According to the amendment to the Act, under section 1 of the Health (Miscellaneous Provisions) Act 2001, section 45 — this is the critical section — of the Health Act 1970 was amended. With all the intelligentsia, advisers and legal opinion in Government, how did the Government get it so wrong? Several amendments were made to the 1970 Act but that Act was amended in 2001 to include the provision that a person who is not less than 70 years of age shall have full eligibility by virtue of his or her age. Such a person can never have full eligibility withdrawn. I am focusing my case solely on those aged 70 years and over. The medical card was brought in to give them full eligibility, with no means test, regardless of income. Even millionaires would get full medical expenses paid. This was the case where the Irish Medical Organisation went to Government and got three times the rate to service that card. That card gave full eligibility and that entitlement could not be withdrawn.

The Minister is wheeling this back to 1976 but I am talking about people aged 70 and over in State contract beds in community district hospitals, community nursing units and private nursing homes. The Minister should do the calculation on those, and I can give her the figures. Under the current law, it is illegal to levy a charge for inpatient services on anyone aged 70 years and over. That is based on the amendment to the 1970 Health Act.

We are dealing with a serious situation here and the report outlines the number of patients in care who qualify under that law. We are talking about those aged over 70 who are the most vulnerable in society. This is supposed to be a caring and sharing Government but this was an illegal charge. The Government is now saying that the banks should refund the money if an illegal charge was imposed.

Giving people a €2,000 contribution towards their accommodation costs is not good enough. I respect what the Tánaiste is trying to do in theory. She is being very frank and open with regard to this situation but we are talking about an amendment to the 1970 Act, which became law in 2001, giving full eligibility to everybody over the age of 70. Those are the people to whom I refer. They are the people who are legally entitled to a refund. Regardless of the legal derogation the Tánaiste introduced yesterday, there will be a challenge to this action in the courts. People aged 70 and over who were given full eligibility will have remit to go to the courts to get a total refund. They have been let down by this so-called caring and sharing Government. I doubt if the caring and sharing approach being taken here today has got the Inchydoney approval.

Ms McManus

I move amendment No. 1:

To delete all words after "That" and substitute the following:

"Dáil Éireann:

—having regard to the fact that the Bill proposes to impose a retrospective liability contrary to the constitutional rights of persons thereby affected; declines to give a second reading to the Bill.".

We listened to the Minister defend the indefensible in her contribution. It is an appalling record of this Government. This issue was staring it in the face and it did nothing about it. Deputy Perry in particular underestimates his role in all of this. Were it not for Deputy Perry and Deputy Kenny, the issue would not have reached the floor of the House and, in all likelihood, the Minister would not have said anything about it today. At some point in the future the issue might have been addressed but there is no evidence that anybody is being up-front. The Government was caught out and it is now rushing legislation through the House.

The Minister said she has attached all the facts and information available to her but she has not done that. She has not attached the legal opinion that we should we see, and that I have requested. I want to see the legal opinion that was available to the Minister for Health and Children in early 2003 from the South Eastern Health Board that we now know extended to 80 pages. That should be attached to the speech, along with the legal advice from the Attorney General. It would be interesting also to attach the position paper that was prepared but never acted upon in the Department.

I found the Minister's contribution quite harsh. She referred to sensitivity being important in dealing with any legislative change in respect of the elderly. Most people would agree with her on that score but these are very serious matters that are her responsibility, ultimately, to address yet we have not had a word of apology. These people in long-term residential care do not have power. They are mentally ill, disabled and elderly. They do not have the power to change history, like Reverend Ian Paisley, but Reverend Ian Paisley got his apology. These people got an outline of what happened, in part, and no expression of remorse. That is very disturbing. An apology would have been appropriate and would not have compromised the Minister, rather it would have put what happened in the right context.

This Bill is being rushed through the House without proper preparation and debate and without consideration of its constitutional implications. It arises because of a failure by this Government to address an injustice that consisted of the State raiding the pockets of the elderly and the infirm. In fact, the Bill adds to the injustice exerted upon these people by declaring that the charges levied against them are and always were legal, even though we know that is not true. They are and they were illegal. Not content with mugging the elderly once, the Government is now intent on mugging them twice and the Minister, Deputy Harney, is trying to soften the blow by returning a paltry amount of the stolen money to its rightful owners.

This issue could and should have been dealt with either in 2001, when I understand the Government was made aware of the issue arising, presumably, out of the over 70s scheme or in early 2003, when the South Eastern Health Board provided full legal opinion to notify the Minister for Health and Children of the problem, but nothing happened. It was not even referred — and the Minister confirmed this today — to the Attorney General. The Minister has a duty to tell us the reason nothing was done in such a serious matter. It is clear that even when the Department was alerted about this information and did nothing about it, it was supposed to be dealing with the growing evidence that the illegality of the charges was already well-known. At health board level, the pattern appears to have been that when elderly residents were compliant, the money was taken from them and when they resisted, it was not. When a resident went to the Ombudsman, the money was invariably returned. We know from the Ombudsman's report on nursing home subventions the extent of the money denied illegally to elderly residents of nursing homes and, in that instance, I understand the Attorney General also said the money did not have to be returned and restitution did not have to be made. Nevertheless, it was made. The Minister needs to explain to the House why restitution is not being made in this situation.

Health professionals providing care for elderly people are concerned about what may happen to their elderly patients who are rehabilitating in long-stay units. An elderly person might remain in an acute hospital for quite a long time with no question of his or her medical card being removed. However, it is uncertain what will happen to such a person recovering in a long-stay unit for more than 30 days. Presumably, such a person will be charged. This will create difficulties for people who are inappropriately placed in acute hospitals. We support the Minister's attempts to deal with the accident and emergency crisis but the key to those efforts is to ensure the smooth transfer of patients to step-down facilities. We need to hear more about the effect of the legislation on this matter.

The Bill defines, for the first time, inpatient care with regard to the maintenance of the person. Until now, no such legal mechanism existed. We are being asked to do something quite significant, but in a manner which allows for no scrutiny. The Bill is being rushed through to be got out of the way before Christmas and to save money. There is to be no proper parliamentary scrutiny or consultation. We are being told that €2,000 is to be paid to everyone affected. This is intended to keep everyone quiet, although the measure is not even included in the Bill. That amount is roughly the equivalent of 16 weeks of care. In most cases, more than €6,000 per year was taken from these people but they will only receive a fraction of that amount. When banks overcharged their customers, the Government, the Minister for Health and Children in particular, was very clear about proper practice in the private and commercial sector. Customers were assured of full restitution. When taxes are unpaid, the Revenue Commissioners get full restitution with penalties. However, when the Minister for Health and Children presides over an overcharging regime affecting 20,000 vulnerable people, she considers it unnecessary to do the right thing and make restitution.

With regard to this partial payment, since each individual has already been identified as a target for the extraction of money, there must be no question of any unnecessary form filling. These are known individuals and they also happen to be elderly, frail, mentally ill or disabled people who should not be subjected to any kind of bureaucratic demand.

Shaky emergency legislation is being rushed through the Dáil because no one appears to have learned from experience. I cite the experience of the married women's equality issue. In that case, rushed legislation did not work and the issue ended up in Europe. Ultimately, married women were paid £550 million, which was not an insignificant amount of money. Nevertheless, the State paid it, and rightly so, and the country was not bankrupt as a result.

The purpose of the Bill is to amend section 53 of the Health Act 1970. The effect of sections 52 and 53 of that Act, taken together, is that persons with full eligibility cannot be charged for inpatient services, meaning institutional services provided for persons while maintained in a hospital, convalescent home or home for persons suffering from physical or mental disability or in accommodation ancillary thereto. This prohibition extends to long-term residential stay and this is the prohibition which was, effectively, ignored in the regulations under which charges were imposed. The Government now concedes that the regulations are unlawful. The charges were levied without statutory authority. If a court were seized of the issue, it would declare the regulations to be ultra vires the Act and they would be held to be a legal nullity invalid from the day they were made. A separate set of institutional assistance regulations made under an earlier Health Act were continued in force and suffer from a similar invalidity.

Those who had paid money on foot of demands made without statutory authority would, if nothing were done, be entitled to sue for their money back. Their claims would presumably be covered by the Statute of Limitations and limited to six years' arrears. If all 20,000 residents had been so resident for six years and had been paying the current rate of €120 per week, the figure would be approximately €750 million.

The essential purposes of the Bill are to authorise charges in the future and to declare previous charges to have been legally imposed. The new section 53(5) of the Health Act 1970 as inserted by section 1 of this Bill states: "It is hereby declared that the imposition of a relevant charge is, and always has been, lawful". A relevant charge means a charge imposed under regulations made under the new section 53(2) of the Act as inserted by section 1 of the Bill and paid at any time before the enactment of the new section 53(5).

So far as retrospection goes, the only specific constitutional prohibition relates to declaring Acts to be infringements. Article 15.5 of the Constitution states: "The Oireachtas shall not declare acts to be infringements of the law which were not so at the date of their commission." Retrospectively validating an invalid provision where those subsequently found to have been in breach of that provision, even at a time when it was invalid, are nonetheless exposed to liabilities for their infringement of the law is prohibited by Article 15.5. A health board recovers an unpaid charge as a simple contract debt rather than through the criminal process. Section 74 of the Health Act 1970 states: "Any charge which may be made or contribution which may be levied by a health board under the Health Acts, 1947 to 1970, or regulations thereunder may, in default of payment, be recovered as a simple contract debt in any court of competent jurisdiction from the person in respect of whom the charge is made, from the person's spouse (if any) or, in case the person has died, from his legal personal representative." Although the charge would be recoverable if it were a simple contract debt, it is not a contract debt because there is no contract. The action is for the recovery of a statutory charge imposed pursuant to ministerial regulations in respect of the provision of public services by a public body. Even if the payment of the charge were simply a matter of contract, the imposition of a charge makes non-payment a breach of that contract. It would follow that non-payment is, thereby, to be classed as an infringement, breach or contravention of the civil law.

It follows that what the Bill seeks to do, in seeking to make the charges valid necessarily also involves making civil court proceedings for the recovery of unpaid charges valid, which could only be so if non-payment of outstanding charges infringed the civil law. This is to create an infringement of the law with retrospective effect and is unconstitutional. There might be difficulties in finding a plaintiff with locus standi to make this point in a challenge to the Bill. A good potential plaintiff would be someone with unpaid bills which the health board was seeking to recover.

However, we are concerned with the validity of the Bill in terms of general principle and it is important that we consider constitutional issues. Non-payment of outstanding charges is not something which could ground an action for their recovery today. The action would fail since the charges were invalidly imposed. However, it is claimed by the Government that such an action would succeed at the end of this week and that the defendant would become liable to a health board on foot of a judgment secured as a result of a breach of a statutory obligation to pay. This is implicit in the Bill. One cannot retrospectively declare charges always to have been valid to justify holding on to money already collected without, by necessary implication, also retrospectively declaring that non-payment of those charges always gives rise to a cause of action on the part of health boards as a breach of a statutory obligation and an infringement of the law by the recipient who is in default of payment. This legislation is in conflict with Article 40.3 of the Constitution, which requires the State in its laws to respect and, as far as is practicable, to defend and vindicate the personal rights of the citizen. In particular, it must by its laws protect its citizens as best it can from injustice and, in the case of injustice, vindicate the life, person, good name and property rights of every citizen.

When a health board unlawfully takes €120 per week from a pensioner, it is breaching his or her property right. The State is seeking by its laws utterly to defeat that right rather than defend and vindicate that right, as it is constitutionally obliged to do. That is why the Labour Party opposes the taking of this legislation before these important constitutional issues are addressed.

It is important that the constitutional aspects of this legislation should be scrutinised fully and that we should be given time to ensure everything is done to address this issue. There is agreement that the matter must be addressed and there is also universal agreement that services must be paid for. The Government has failed to deal with the issue of long-term care for the elderly. Reports are produced but nothing happens. Hopefully, progress will be made in the next year but, in the meantime, it is absolutely wrong of the Minister to sacrifice vulnerable and voiceless people to whom a wrong has been done. Nobody can support the notion that somehow by passing this legislation a pretence can be created that these charges have always been legal. All of us were reared to be honest and to tell the truth. The Minister has a reputation for being honest and telling the truth and nobody wants to take that from her but what the legislation is saying is untrue.

We are being asked to collude, as parliamentarians, in something that will rewrite the past, the role of the Department and the failure of the Government to deal with this issue, although it is not solely the failure of this Government. However, the Minister is trying to offload that responsibility from her shoulders. The only way to address the issue is to give the restitution to which they are entitled to the people affected. Their money was taken from them by the State and the Government is responsible for addressing the issue.

I hope the Minister does the right thing but I am afraid that will not happen. A Bill is being pushed through the House, which is based on a lie, an untruth. Everybody wants to ensure care for the elderly is provided because we are not irresponsible. Such provision is difficult and costly but it faces everyone of us and we need to get our act together. I would be more than happy, on behalf of the Labour Party, to co-operate in that regard. However, I will not collude in an untruth. That is what we are being asked to do. I urge the Minister to withdraw the legislation so that we can start again and work on this issue properly.

Caoimhghín Ó Caoláin

I wish to share time with Deputies Cowley and Gormley.

The Government has a duty of care to all who are in long-term care institutions. This includes a responsibility to ensure the vulnerable are always treated fairly and their rights are always upheld. The question that must be asked regarding everything that has led to this legislation is whether the Government measures up to that responsibility and the answer is definitely "no".

I hope the Minister will respond to a number of questions during her reply to the debate. We have been advised that these illegal charges were stopped in cases where people complained. How many cases were involved? Approximately 20,000 people have been subject to the illegal charges regime, despite the fact that senior health board and departmental officials knew the charges were suspect. A newspaper reported today that, in some cases, older people were refunded. However, we were advised charges were stopped in a number of cases where complaints were made. Have refunds been paid? What was the basis of the computation of the refund in each case? If precedent has been set in addressing the issue, that will have an impact in how the ex gratia payments should be processed.

We were also told the charges were dropped last week. However, I made inquiries last evening, which indicate that people in long-term institutional care were continuing to be subject to those charges in at least one health board area. It may not be the case in all institutions but it is continuing in one area. Will the Minister clarify why this is the case, given that we were assured a communication was sent to each chief executive officer that the charges should cease forthwith? A letter issued to the chief executive officers of the health boards and the ERHA asking them to immediately stop making such charges. I ask that copies of all the relevant correspondence on this matter be made available to health spokespersons of the political parties and members of the Technical Group who are directly interested in this and allied matters. It is important that we know what communications issued and how they are being processed on the ground.

An ex gratia payment of €2,000 will be paid to the 20,000 people in qualifying care. What about those who have left institutions or who have died in them? Has consideration been given to payment to their estates? These people were clearly subjected to illegal charges over the period of their lifetime in care. In her address this morning, the Tánaiste said each person will receive repayment of up to €2,000. May we have clarification of that? The words “up to” suggest it may not be €2,000 in every case. Is there a sliding scale of qualification and eligibility?

Is it possible the former Minister, Deputy Martin, was unaware of the South Eastern Health Board's legal opinion that was considered over several months within his Department while he presided in office? Twelve months ago, the Department raised the matter of charges with health board chief executives and established a small group within the Department to prepare a position paper on the matter. Could that have been going on without the former Minister's knowledge. He stated he was unaware of the opinion obtained by the South Eastern Health Board. That is incredible. I appeal for a return to the premise that we have a duty of care and a responsibility to ensure the rights of the most vulnerable in our society are protected. Does this legislation measure up to that responsibility? I say no. The legislation should be withdrawn and redrafted or fundamentally changed.

Dr. Cowley

This is a knock-on effect of a political decision made by the Government and the Department of Health and Children to give medical cards to everybody over the age of 70 on a non-means tested basis. That decision was fine in itself, but it did not stop there. The knock-on effects continue, and this is one of them.

The decision showed up the deficiencies of the Department of Health and Children and the need for reform. When the decision was initially made, a certain cost was indicated. However, the cost has mushroomed to an enormous level. Nobody knew the number of those over 70 years of age. As a result it cost the taxpayer much more money than predicted. The concession was given before it was negotiated with the Irish Medical Organisation. Everybody over the age of 70 has a medical card, no matter how rich or poor. That is the difficulty which exists at this time. We are still paying for the decision.

That was a concession for older people, and would have been worth doing had we been able to afford it. However, we could not afford it at the time. Minimum wage families with children were in dire need of a medical card. Instead of giving them the medical card, the scheme was extended to everybody over the age of 70. In retrospect it was a bad decision. It also drove a wedge between general practitioners in leafy Dublin suburbs and inner city practitioners as well as rural practitioners in that they were paid four times more for the same care of patients over the age of 70.

Was it right to give non-means tested medical cards to everybody over the age of 70? We are revisiting that question again. A gross injustice was done to people who were made to contribute when it was illegal for the Government to do so. That now needs to be rectified. The Government is giving a sop towards this end, and the amount deducted should be refunded whatever the cost might be. Right or wrong, that is the situation.

The Government messed up on this issue. I am glad it has dropped the idea of having old people apply for a refund because that would have been difficult for them. Cynical people would say it was a deliberate attempt to ensure there would be no great pay-out.

This issue opens up the important debate about funding of care for older people. Greater support is needed for older people. Everybody says they should be kept in their own community if possible, but there is too much lip service. In reality many end up in profit-driven, non-community nursing homes. Where can older people go when they can no longer live in the community by themselves? Currently, they are given the choice of going to a State-run institution, if such a facility is available. There is a limited number of beds. Political pressure ensures these institutions are located in particular areas.

Community nursing units, formerly called welfare homes, form a patchy network in certain areas but not in others depending on political clout. Ballinrobe, County Mayo, still does not have a facility to care for the aged. This is an important and necessary debate. There are community alternatives. There is no reason people who are needlessly in nursing homes should not be in their own community. The potential is there for them to be kept in their own community. Some years ago, a Green Paper on psychiatric services stated the majority of long-stay residents in institutions were over the age of 65. Long-stay was defined as being resident for more than one year. The majority of these people could be brought back to their communities if facilities existed. That should be the real debate.

Mr. Gormley

Earlier the Tánaiste paid tribute to the Opposition, saying we perform a valuable function, and that is true. Deputy Perry's role has been pivotal, and he has performed a valuable function as an elected Member of the House. I pay tribute to him and compliment him on his assiduous pursuit of the matter. It has come to a head in what should have been a productive manner. However, what is happening today is appalling. We are rushing legislation through.

The Government should acknowledge at all times our role and function, not just at Christmas. We try to raise important issues, keep tabs on the Government, make it accountable to the public and ensure it correctly spends public money. I raised an important issue this morning. We should be involved in the framing of the terms of reference of the inquiry into the hiring of a PR consultant by the Minister for Transport, Deputy Cullen. The terms of reference should include conferences that were attended and whether they were relevant to the PR consultant's role. However, we were excluded from framing the terms of reference. I was regrettably blocked by the Ceann Comhairle.

With regard to this legislation, we are looking at how the most vulnerable people in society have been treated. The Bill is being rushed through in the same way we rushed through the legislation, comprehensive in terms of reform, on the health service in three days. We complained then, but then as now and always our complaints fell on deaf ears. This is not a listening or caring Government. This legislation confirms that.

We know the Government has been illegally charging the old and vulnerable. Now it is patting them on the head, giving them €2,000 if they are lucky and saying "Happy Christmas". This is extremely cynical. The Government is trying to patch up the mistakes of the past but, as has been said, it is riding roughshod over the constitutional rights of our citizens, especially the elderly who have made a fantastic contribution to building up the State. They were there from the beginning, not just through the good Celtic tiger times but through the bad times of the 1950s and beyond. Many of them had to emigrate, but we got a demographic bounce from that. However, we are looking at those in the country.

The Tánaiste was at pains to point out that this has nothing to do with the granting of medical cards to the over-70s. One only has to look at the Department's briefing document to know that was the catalyst. I have no doubt about that. The report from the Secretary General, dated 13 December 2004, points out:

The capacity of health boards to raise charges from persons with full eligibility has been contested on numerous occasions over the past 30 years. Instances include the McInerney case (1976), the Ombudsman's Report on Nursing Home Subventions (2001), various cases pending against health boards, and the raising of the matter in the Dáil over recent months. Overall, this body of law is quite complex, and has previously been regarded as allowing for some uncertainty as to interpretation.

If this body of law is so complex, why are we rushing it through with unseemly haste? The Secretary General comes to the conclusion "It is quite clear that it now requires radical review and updating". We do not dispute that assessment. It may well require this, but why are we doing it in just one day?

If we look at what is being said in terms of section 53(2) of the Health Act 1970, the report goes on to say that in its assessment medical card holders are exempt. It is clear that the granting of the medical card to the over-70s was extremely important. It was criticised by Professor Niamh Brennan when she came before the Oireachtas Joint Committee on Health and Children. However, the measure, a cynical election ploy, was put through. As we all know, those are precisely the people who vote. The Government benefited from that, but now it is turning its back on those who voted it back into power. These people are being treated with total contempt and cynicism. I intend to speak again on the issue on Committee Stage.

Mr. O’Donovan

It is inappropriate to use the word welcome with this Bill, but while I accept there is a problem with it, I will support it. There is a flaw in the system which has been unearthed in the past year or so. It is correct that the introduction of the free medical cards for the over-70s was the catalyst for this. However, it cannot be disputed that this problem goes back to 1976. There have been four or five different Governments since.

We must consider the practical reality and Government must govern and be accountable. If we looked back all the way to 1976, we would find significant logistical difficulties in this regard. It has been estimated that this measure would cost the health boards or health authority €10 million per month. A former chairman of a health board to whom I spoke this morning said this is a conservative estimate and it could be up to double that. If that is the case we are looking at a cost of €250 million. He urged me to bring this to the attention of the House.

If we went right back to 1976 and tried to undo the damage or wrong, it would cause major difficulty for the Government. However, this Government did not create the problem. When I hear the Labour Party spokesperson talking about unkindness to the elderly and unfairness and lack of provision of care, I am reminded that it is not too many years since a Labour Party Minister only provided 75p of an increase to those on social welfare or suffering from disability etc. One should not therefore be critical of this Government's care and attention for the elderly. The most recent budget was an exceptional example of a caring Government and it gave particular help to the elderly etc.

There was mention of constitutionality and rights of individuals and the elderly. It was also stated that the Bill is being rushed through. The Government, once the problem was brought to its attention — Deputy Perry and his party take credit for that — got the advice of the Attorney General who is an independent legal officer. He advised it to take a certain course of action, resulting in the current Government initiating this Health (Amendment) (No. 2) Bill 2004. The Government did not introduce it to create problems coming up to Christmas. The problem was brought to its attention and the Attorney General, after some months deliberation, advised it on what to do.

The Government was vilified some months ago when Members felt it was making a mistake and rushing the Irish Nationality and Citizenship Bill through. That Bill was passed by the Houses and tested in a referendum by the public, which gave it an overwhelming endorsement. We are criticised for rushing Bills through on one hand, but here we have an example of fast action by the Government on the advice of the Attorney General which resulted in a Bill being passed and enacted and endorsed by the public. It is important to recognise this.

I have raised the matter of medical cards for over-70s at parliamentary party meetings on several occasions. Medical cards for over-70s should be means tested. As many as 20% of elderly people are sufficiently well-off to take care of themselves, either through life assurance schemes or other sources of wealth. I accept it is difficult to assess how well-off people are. I am aware of a number of anomalies from my legal experience and work with health boards. In some cases the Department of Health and Children has been led up the garden path.

Three or four years ago I came across a situation which I brought to the attention of the county manager. An elderly bachelor was in receipt of two grants, a disabled person's grant and an essential repairs grant, to which he was entitled. His house was repaired but due to ill health he had to go to the local hospital where he spent up to 12 months. I assume he made some contribution to his hospital fees. When he died, he was not cold in his bed when his nephew began to look for what was due to him. This would be quite typical of such situations, although many people do not have the courage to say it. In this case, the nephew got the property. He sold the house that had been repaired at the expense of the health board through Government funds, in addition to two acres with a nice sea view, for €380,000. There was also a balance of land left over. This is a common scenario where, in some instances, people with property or land are in homes in the care of the State and somebody else reaps the benefits. I was never a member of a health board but I understand health boards have powers to access bank accounts and other assets. However, I believe this power was more observed in its breach than observance.

The advice of the Attorney General is that this problem dates back to 1976. Some people are of the view that it may go back even further. There are implications for this and future Governments.

Schull Hospital needs a 14-bed or 16-bed extension and that is on the agenda. Bantry Hospital is looking for a day care centre and it also has plans for a 50-bed convalescent home adjacent to it where land has already been bought. There are probably several other projects in the pipeline. I would prefer the Government to plough that money into the worthy cause of providing extra beds for the elderly in cottage hospitals, many of which exist in rural Ireland.

Again being parochial, the Mizen Peninsula, in my constituency, has a population of about 5,500. I was informed at a recent meeting that 22% of the population is over the age of 65. This means there are 800 people over the age of 65 in the Mizen peninsula, which is probably one of the highest statistics for elderly people in Ireland. The 22-bed hospital in Schull is all there is to deal with the elderly in the peninsula.

I do not particularly welcome the Bill. However, I will support it because the Attorney General has given clear and succinct advice to Government and it would be negligent of the Government not to act on that advice.

Mr. Allen

I wish to share time with Deputy Neville.

Acting Chairman (Mr. Carey)

Is that agreed? Agreed.

Mr. Allen

I regret the confined nature of this debate, but I will address a number of key issues.

The Tánaiste has said on many occasions in recent days that as soon as she got the views of the leader of Fine Gael, Deputy Kenny, and Deputy Perry, she raised the issue with the Attorney General and took immediate action. I wish she were in the House to answer my question which I direct to her via the Minister of State, Deputy Seán Power. Can he confirm that a meeting took place on 16 December 2003 in the Gresham Hotel, at which three Ministers were present, Deputy Martin, Deputy Callely, who had responsibility for the elderly, and Deputy Tim O'Malley? Questions were raised at the meeting about the legal uncertainty of charging over-70s with medical cards. However, nothing was done. I would like to know why the then Minister, Deputy Martin, did not go to the Attorney General. Can the Minister of State, Deputy Seán Power, or the Minister, Deputy Harney, give any explanation for his indifference or lack of urgency? I accept the then Minister was taking his lap of honour in regard to the smoking ban but this was a core issue over which a major question mark had been raised. Why did nothing happen until Deputies Kenny and Perry raised this issue? It was only then that the Tánaiste sought the opinion of the Attorney General.

Does the Minister of State agree that this lack of action by the former Minister, Deputy Martin, is a serious indictment of his ministerial tenure? I suggest it is a sign of incompetence. Who will make him responsible for his lack of performance on this urgent matter affecting the most vulnerable, the elderly and sick? We have heard endless lip service from the former Minister, Deputy Martin. He constantly resorted to review groups and so on while this matter was festering in the Department. He chose to ignore the matter and he should be made accountable for this appalling oversight and for not dealing with the issue on foot of the meeting on Tuesday, 16 December 2003.

Will the Tánaiste or the Minister of State, Deputy Seán Power, confirm that meeting took place and that the issue was raised? The Department indicated it would make an assessment of the need for a stand-alone Bill in its legislative programme and that it would be necessary to get a definitive legal assessment of the current arrangement as a first step in regard to long-stay charges for the over-70s. Why did that not happen until the persistence of Deputy Perry and the Fine Gael leader led to the matter being raised as a matter of urgency?

Mr. Neville

I welcome the opportunity to discuss the Bill. I am disappointed there is not time for a more comprehensive debate. I congratulate Deputies Perry and Kenny, particularly, Deputy Perry, for his research and insistence on the matter. It is difficult to comprehend that the Department was aware of this for some time but it had to be exposed over a period of time by Deputy Perry and the leader of Fine Gael.

We must seriously examine our approach to the elderly, which is indicative of our attitude as a society. We have a growing elderly population. Approximately 436,000 people are aged 65 or over, which represents 11.1% of the population. Some 67.8% of these are female. It is projected that within 30 years the number of elderly people will double to 858,000 or 18% of the population. While Ireland has the lowest percentage of older people in the European Union, the life expectancy of older people is also the lowest in Europe. It is important to note that older people are not a homogenous group. Their experiences and needs vary according to cross-cutting determinants such as socio-economic and cultural circumstances.

Elderly people in hospital are repeatedly being put under stress while people try to make decisions about their future. Families are put under pressure to make decisions about elderly relatives' continuing care by hospitals, which want to have them discharged without providing them with a care plan. Families often merely receive a message to state that a relative is being discharged. An elderly woman, who was discharged from a hospital in her dressing gown to a house on her own, walked into a river and drowned herself two days later. We must take a holistic approach to dealing with the elderly.

In the circumstances to which I refer, the last person to be consulted is often the elderly person in the bed. The family, consultants and ward managers discuss the matter but often do not consult the person in the bed. It is amazing that a person who has paid taxes all his or her life and is cognitively aware, although possibly physically infirm, is not consulted about his or her circumstances. That is an affront to their dignity and independence. We must examine the issue of nursing homes and how we deal with elderly people.

Elderly people who have worked all their lives do not want to put their families under pressure and stress. They do not want to be forced into the sale of assets, which may be inevitable. It is often distressing for elderly people when their families ask them to sell their houses to pay for their care because they often cling to the hope that they might return home one day. This might not happen and often it does not, but it is reasonable that they should have such hope. However, families often sit down with elderly relatives and, having worked out their level of subvention, inform them that they must sell their house to pay for their continuing treatment. If the homes of such people are taken away, they have nothing tangible from their past to cling to. There should be a policy examination of the social and psychological impact of those decisions on elderly people.

We often rightly refer to the distress of families under pressure on this issue and, as politicians, we experience the difficulties and conflicts in families when they make decisions about fathers, mothers, uncles or aunts, for whom they are responsible. This in turn places extra stress on the elderly people involved. We should try to visualise the circumstances of a person who is infirm, not in control of his or her physical movement and must be confined to a hospital and subsequently realises that his or her children are fighting over him or her. We must examine the issue and ensure that stress is minimised, if not eliminated.

The National Suicide Research Foundation, under the direction of Professor Ivan Perry, today published its report for 2003. The figures show an 8% increase in the incidence of attempted suicide, a 5% increase in the incidence among young women between 15 and 20 years of age and an 8% increase among young men between 20 and 25 years of age. These figures relate only to those people who attended accident and emergency departments. At least 60,000 people attempted to take their lives last year in respect of which nothing has been done, no concern has been shown and no prevention programme has been established. The Tánaiste is new to her brief but I plead with her not to ignore the issues of suicide and attempted suicide in the way that has been done for decades. I am not pointing the finger at anyone in particular but rather at everyone. I implore the Minister of State and the Minister to examine the issue as a new year's resolution.

Mr. Nolan

I welcome the opportunity to speak on the legislation and I compliment the Tánaiste on introducing it. I commend Deputy Perry for highlighting on a number of occasions the shortcomings of the legislation and regulations, whereby health boards applied charges to individuals who availed of long-stay institutional care. Few individuals are not prepared to pay for the care and attention they receive in institutions throughout the State. However, this Bill will bring clarity to a practice which, as we have discovered, has not operated on a sound legal basis for almost 30 years. The charges for long-term care will now be based on a sound legal basis, which is to be welcomed. Some Opposition Members who have contributed to the debate failed to recognise that if the Government sat on its hands and was not prepared to introduce amending legislation now, the Department of Health and Children would lose approximately €8 million to €10 million per month. At a time when we hear cries for more resources and financial assistance for the Department——

Mr. Hogan

That is what is called wheeling the scrum.

Mr. Nolan

——the loss of €120 million per annum to that or any Department could not be condoned.

I commend and compliment the chief executive officer of the South Eastern Health Board who highlighted this discrepancy and made the position known to the Department of Health and Children some time ago. The legal advice on the issue of charges being made in respect of medical card holders who are long-stay patients in publicly-funded residential care was requested by the South Eastern Health Board and the legal advice it received at the time was passed on to the Minister for Health and Children and the Department. The Department consulted the health board representatives on this matter and the issues raised were considered over a period of months in the context of an overall review by the Department of the eligibility arrangements. The health board's position has been vindicated by the fact that this emergency legislation must be introduced.

While I regret that we must sometimes introduce legislation at short notice, in this case there is no other option for the Tánaiste and her Department. It is important to point out that where mistakes are made, they should be recognised. This is the case now and action is being taken to rectify the situation.

The purpose of the Bill is to provide the legal framework for charging patients in long-term care in health board-run institutions and publicly-contracted beds in private nursing homes. It is important we acknowledge the first class care and attention elderly people receive in both publicly funded and private nursing homes. In recent years, we have seen an increasing number of private nursing homes because of increased demand due to people living longer and receiving much better care and attention, all of which puts pressure on the resources of the State and the health boards.

There is long-standing acceptance that it is fair and reasonable that those who can afford to contribute to the cost of their long-stay care should do so. Moreover, the vast majority of people are prepared to do so. This scheme of making a contribution has been implemented by successive governments, not just by this one. In 1976, as a result of the Supreme Court judgment in the McInerney case, a circular was sent by the Department of Health which authorised the practice by which health board chief executives could regard patients as not meeting the criteria for full eligibility while being maintained in long-term care on the basis that necessary general practice and surgical services were being provided for them. Medical cards were then withdrawn which enabled the health boards to request payment from these patients. Most patients and their families did not have difficulty with this. From my experiences of visiting individuals in long stay care, I have never encountered a patient who resented having to make a contribution. The only case I came across, where the charge was questioned, was with an individual who was to inherit the estate of the patient. Greed is part of it but it is not on the part of the patient.

The contribution made by local authorities in the form of the disabled person's grant and essential repair grant must be recognised. Where possible, elderly individuals and couples who wish to remain in their homes in their twilight years should be facilitated to do so. These grants are available for the upgrading of houses to provide central heating, draft proofing to windows and other essential repairs. The popularity and success of these grants is evident as there is always an outcry for more funding to local authorities for their provision.

One shortcoming in the application of these schemes, is the length of time taken to process the applications. The individuals applying for them are in their advanced years and it is uncaring for the application process to be strung out. I am not blaming the individual health board personnel because I know the pressure they are under. However, the Department of Health and Children, in consultation with the Department of Environment, Heritage and Local Government, should examine a way of fast tracking these schemes.

The Department of Social and Family Affairs provides a generous carer's allowance. This scheme ensures individuals, whose families may have moved on, are looked after in their home environment. It is a scheme worthy of support. I ask the Minister to examine these schemes to ensure that individuals, particularly the elderly who have contributed to the building of this country, are looked after as far as is possible in their own homes. Only as a last resort should they avail of institutional hospitalisation. I commend the Minister for Health and Children for introducing the Bill, although it is at short notice. It is in everybody's interests that it is passed by the House.

Mr. S. Ryan

In normal circumstances, I would warmly welcome a debate on the challenge of ensuring that older people are adequately provided for into the future, whether this be in the home, the community, accident or emergency or hospital wards, or public and private nursing homes. However, the Bill is being rushed through the House without proper preparation and debate. With less than 24 hours notice it is difficult for Opposition spokespersons to do justice to the detail of the Bill, which will have such long-term implications. This is not the way to deal seriously with such an important issue. The Tánaiste informed the House that this emergency legislation is necessary to close off a loophole that the State was aware of as early 2003. It now proposes to implement retrospective legislation. However, when issues are raised in the House, we are told they cannot be resolved retrospectively.

The people in question were overcharged and are entitled to retrospective payments. If a person owes money to the Revenue Commissioners, or a lone parent is overpaid through a social welfare payment, the full rigours of the law are put in place to ensure that the money is repaid. In recent weeks, numerous cases of social welfare overpayments have been brought to my attention. The Department of Social and Family Affairs is pursuing individuals for liabilities of up to €5,000. It is unacceptable that there is one law for the State and another for the ordinary people, in this case, frail elderly people. Older people are just as entitled to get what is due to them. If the Government made an error they should not be short-changed. Bundles of money are available when it is required for tribunals and the like.

The demographic profile of the population is changing with increasing numbers of people living into old age. While having the youngest population in Europe, Ireland also has one of the fastest growing older populations. Our social and economic policies need to reflect this change. Most people will enjoy an active and healthy old age. However, a sizeable minority is likely to require special care as they grow old. Details of age groups from the 2002 census show that there are 436,000 people in the State over the age of 65 years and 190,398 people over the age of 75 years, more than 10% of the total population. Projections also suggest significant growth in the numbers of older people as a whole over the next ten years.

This projected increase will result in a strongly demographically-induced growth in demand for health and social care services for older people. Significant services will be required to meet this demand and they will have to be funded. People in their working lives do not tend to provide for their pensions. With these changes in society, the requirements of our older people will become more evident. If services are not provided in the local community, the State will have to provide them. Surveys and reports indicate that older people want to be cared for in their homes and with minimum health service involvement. The majority want to continue to live at home. In this context, it is a scandal that community care is not adequate and is not being delivered as envisaged to deal with the legitimate requirements of older people, both now and in the future. If this issue is not addressed, there will be a knock-on effect on the care of older people. The problem must be addressed as a matter of urgency.

The public nursing homes sector and the private sector are both important providers of long-stay care and this is an area that must be better planned. There must be emphasis on community care and long-term care for older people. I read recently in a senior citizens' parliament document that older people must be treated in the health system in the same way babies, teenagers, adults and other groups are treated. The Labour Party fully supports that. The reality is that elderly people in need of long-term care in a public nursing home in areas of Dublin face a waiting period of up to 12.5 years.

There are three subventions which are related to the assessed level of dependency. Medium dependency costs approximately €114.30, high dependency €153.40 and maximum dependency €190.50. An enhanced subvention can be offered by the health boards up to €600 per month depending on the financial circumstances of the applicant and the availability of finance within the health board region. Personal subvention rates for long-stay care, particularly in the greater Dublin area, are inadequate. They do not meet the needs of older people in nursing homes or those seeking such care. Along with this, there is no uniformity in the allocation of subventions throughout different health boards. I also recognise the lack of equity in the subvention scheme and the lack of transparency regarding means testing and disposal of assets in the private and public sector as demonstrated in this debate. The cost of nursing home care makes it prohibitive for the majority of people to gain access to a nursing home facility. Even with the maximum subvention, there is still a significant gap that presents a serious difficulty for most people and their families. There must be a dramatic increase in the funds allocated and changes introduced to the means test applied under the scheme pending a review of the scheme and the introduction of a proper community care service.

I had reason to raise on a number of occasions in this Chamber the scandalous situation regarding the lack of access to nursing homes. As I said at the outset, I would like to have an opportunity to debate the issue of care for the elderly and how the service can be financed in future. This Bill, which is being rushed through the House, deprives older people of their entitlements, particularly at a time when a different approach is being taken to other people. This is a lost opportunity to deal adequately with the problem.

Mr. N. O’Keeffe

I congratulate the Minister in her absence on her appointment as Minister for Health and Children. It is a challenging and difficult job which is evident in the emergency legislation before the House. I also pay tribute to the outgoing Minister, Deputy Martin, who put many new procedures in place in the administrative area. He was a very innovative Minister during a difficult time in the Department.

It is easy to come to lecture Ministers on the services that should be available. However, we must examine the fact that the health service costs in the region of €11 billion and whether we are getting value for money.

Mr. F. McGrath

People are still on trolleys.

Mr. N. O’Keeffe

If people pay more tax, there will be a better service. Deputy McGrath would have another story if that were the case.

Mr. Healy

Some people pay no tax.

Mr. N. O’Keeffe

The Deputy can identify the people if he wishes. The Department of Health and Children is the highest spending Department in the country and I empathise with the need to introduce this emergency legislation. I thank the Southern Health Board for extending the SouthDoc primary care service in the remaining rural areas of north Cork. This service employs 18 general practitioners in my area. The decision was made on Monday at a cost of €1.82 million. The campaign has been in existence for a long time. The former Minister, Deputy Martin, made a promise in Mallow on Good Friday last in this regard, which has been honoured. However, it took a long time for the health board to face the reality of the necessity for this service. This will improve the service in the area because all medical problems will first be seen by GPs in local areas.

I have been concerned for some time about the medical card system. We have a two-tier system, and there may be a three-tier system with the introduction of a new card. All health boards operate different systems and have different criteria. There was a more rigid approach taken in the Cork East constituency to the availability of medical cards and other services than was the case in the north Cork area of Midleton and Mallow. It was much easier to get concessions on medical cards, to which people are entitled, in the Mallow area than it was in the southern part of the constituency.

Some weeks ago I visited a family encountering some difficulties and the woman involved told me her story. When I was leaving the house, she said that she had the medical card for those over 70 years of age and for which she was grateful. I asked her how her husband was, to which she replied that he was very well but had problems at times. I asked if she had home help and she said she did not but was paying for it. I told her that she would be entitled to home help on the medical card and that she could get home help outside the medical card. The woman said that the public health nurse told her she was not entitled to home help on the medical card for those over 70 years of age. Surely a medical card would be of less value to those under 70 years of age than for those over 70 because the second group would have more requirements. I knew that trouble was brewing in this regard. I do not understand why health boards interpret the regulation in this way.

Most people have a desire to get into public nursing homes. These come under the Southern Health Board and Mid-Western Health Board areas in my constituency. Care for an elderly patient in a Southern Health Board nursing home costs approximately €1,100, while the maximum charge in a private nursing home is €700. While the standards in private nursing homes are very high, most people have a desire to get into public institutions because the service is better there. However, this service cannot be provided in a public nursing home at a cost of €700. This issue must be addressed somehow because demand is increasing. There are more and more elderly people in need of support and help because of people being in the workplace. We must have a more liberal form of subvention if we are to address the issue of the elderly and private nursing homes because there are not enough public nursing homes available for the elderly.

We could accommodate people if we had a more liberal approach to home help, with more hours available. That would be a big help because most people do not want to leave their homes but to stay in their own environment. They do not want to be institutionalised or forced into nursing homes. The home help scheme should be more liberal because a very rigid approach is being taken to it. Different assessments could be made, with different criteria applied.

In this modern world, people suffer from Alzheimer's disease. God forbid but many of us might suffer from it when we leave this House and retire. The disease can appear at an early age. Many of those who suffer from Alzheimer's disease are not welcome in private nursing homes because the homes have not got the facilities to care for them. Such people are more prone to going into public nursing homes. The matter is all about facilities and the kind of accommodation that can be made available.

It annoys me that the means test for the subvention is very strict, especially for old people, which annoys relatives and causes friction in families. Workable criteria should be laid down so that there are fewer difficulties. There is a kind of hide and seek game played among relatives, with a daughter perhaps unwilling to support a mother or vice versa. This goes on quite a lot. If there were proper criteria and simplified means testing, people would find it easier to use the system and would work better with the officials.

Different figures have been mentioned by Deputy Seán Ryan, with enhanced subventions. To qualify for an enhanced subvention one would want to be on the breadline. Means testing is always dreaded, but if criteria were laid down we would have a better system.

The medical card was introduced in the 1960s and was very welcome at the time. I was a youngster then, and I am not the oldest Member in the House. Since the introduction of the medical card scheme there have been many changes to it, and it has been issued to many people. The Ombudsman's report in the 1990s should have been implemented. In recent times we have had the report of the Committee of Public Accounts which is before us today. There are many reports around. The medical card is a discretionary document. After the 1976 report, a new Government came to power led by the former Taoiseach, Liam Cosgrave.

I welcome the Bill if it can improve the situation. There is a long way to go in this area where so many people are seeking hospital beds, particularly long-stay beds. If we cannot alleviate that problem we will have further difficulties. We must consider a more liberal approach to means testing and increase the subventions. The entire area will be a minefield for the next 12 months because many other issues will arise from it. I do not envy the task of the Minister in trying to solve the problem.

Mr. Healy

I wish to share time with Deputies Finian McGrath and Morgan.

Acting Chairman (Mr. Costello)

Is that agreed? Agreed.

Mr. Healy

For a number of reasons, this Bill should be withdrawn. It is being rushed through the House with no scrutiny, effectively to save money. There are other issues related to that of the elderly and nursing home care, public and private, which are not being addressed in the Bill. They include constitutional issues, the retrospective nature of the Bill, private nursing home subventions and family home and community care facilities for elderly people.

It is ridiculous that following the payments taken illegally from elderly people, we are offering them the sop of about €2,000. When the banks overcharged individuals and organisations, we in this House demanded full compensation for them. The Revenue Commissioners were short-changed by taxpayers and demanded not just repayments but interest and penalties. We are now dealing with about 20,000 vulnerable, elderly, frail people, some of them disabled or mentally ill. Rushing this Bill through the House is out of order. It should be withdrawn and the areas I have noted should be addressed.

There are situations where elderly people who cannot be accommodated by health boards in public hospitals and homes are forced into private nursing homes. The question arises of the subvention for those people. I support the report issued some years ago in which the Ombudsman indicated that those people are also eligible persons under the Health Act and should be fully subvented. That matter is not addressed in the legislation. Items arising under that heading include the situation whereby very many elderly people are forced to sell the family home to fund nursing home charges. That is wrong. It puts elderly people and their families under great pressure.

Community care facilities should be available for elderly people. There are not enough home help or care attendant hours available. Even though the carer's allowance system has been expanded over the years, the allowance remains minimal. The vast majority of carers get no payment, while those with a payment get about 70 cent per hour.

I have come across a case, one of many, where two elderly people aged 90 who were forced into a private nursing home had to leave it because they could not afford it. They had to return home. That is not acceptable in this day and age.

Mr. F. McGrath

I thank the Acting Chairman for the opportunity to speak on the Health (Amendment) (No. 2) Bill 2004. I share the concern of many Deputies about rushing legislation through the House without a detailed debate and sufficient time. | am open to the idea of coming to the House during the Christmas recess to allow adequate time for all Deputies to debate, analyse and examine this legislation. Rushed legislation can often be flawed. I am dismayed that we do not take a few days to deal with this important issue. I do not want to return in the future with further legislation or cause the taxpayers and citizens of this State to pay further hundreds of millions of euro because the Minister and the Cabinet have got the legislation wrong.

I raise these issues because legislators must give time and professionalism to all legislation. We must first acknowledge that it is the national and civic duty of everyone in this State, especially the Government, to look after our elderly. We must also acknowledge that they have played a valuable role in society as citizens and as taxpayers for many years. The Government and State have a duty and responsibility to look after them. The scheme to use the pensions has been in place since 1954 but an anomaly arose under the 2001 Act which gave the medical card to those over 70. In principle, they are entitled to free medical care but their pensions have gone automatically to the institutions. The charge is about €10 million per month and the refunds could cost in the region of €300 million.

I urge caution on this issue. We must focus on the elderly, Alzheimer's disease patients and people in their 70s and 80s to ensure that they or those directly helping them are the beneficiaries of the returned money or the income distribution.

In recent days I received a letter from a constituent family of mine one of whose members is an Alzheimer's patient. This man is 76 years old and is suffering from age-related Alzheimer's dementia. In early August he was assessed by the psychiatric unit for the old age team and was admitted to an institution. When members of the family visited him they had to go searching for the man and eventually found him sitting in a chair in the women's ward. The letter says:

We then went in search of his bed and after numerous inquiries, finally found it. He was beside a window which was very draughty and we noticed how cold it felt. In relation to his hearing aid we discovered that it was not turned on, which meant he could not hear and therefore it would have been impossible for anyone to communicate effectively with him. When we explained this to one of the nursing staff we were told it was a good job that he could look after his hearing aid.

Such a comment did not inspire confidence in the family. As regards clothing etc., there were no personal items in his locker or wardrobe. They were told that his clothes had been sent to be marked with the unit brand and that they were due back on 26 October. During this visit the family noticed dirt beside the man's bed and described what looked like dried-up vomit which appeared to have been there for some time. These are the type of institutions in which people are being held and such issues should be dealt with as well.

Mr. Morgan

There is much annoyance at the manner in which this legislation is being rushed through the House. There are concerns over the propriety of the retrospective element of the legislation. As my Sinn Féin colleague, Caoimhghín Ó Caoláin, has stated, "the State has a duty of care for those in State-provided care and institutions". The charging scandal, which this Bill has been brought forward to redress, has shown that the State has been remiss in its duty.

I want to raise a related matter, namely, the threat hanging over the provision of respite care in County Louth. The Order of St. John of God raised concerns in 2003 regarding the level of funding available for staff at St. Mary's residential institute in Drumcar, County Louth. At that time it was accepted that an additional 94 staff members were required to provide a safe environment and reasonable quality of life for the people who live there. Following negotiations with the Department of Health and Children and the North Eastern Health Board, it was agreed that funding for additional staff would be made available over a three-year period. Despite the agreement, funding has been granted for only 30 extra staff to date. That is hardly a success story. This failure to fulfil the terms of the agreement is threatening to have a major impact on families who completely rely on the respite services provided by St. Mary's. As a result of the failure to resolve this issue, despite ongoing negotiations with the Department and the health board, the management has been forced to consider a number of options to deal with the crisis in which the institute now finds itself.

One of the options under serious consideration is the closure of the respite units until funding for adequate staffing levels is made available. St. Mary's management does not want to close the respite services, but feels there is no choice if it is to retain an appropriate level of care for patients, given current staffing levels. Respite care gives carers a short period of relief from care work that in many cases is being provided 24 hours a day, seven days a week. They save the State uncalculated revenue through the services they provide. The least they deserve is to be able to access respite for those for whom they care. I ask the Minister for Health and Children to intervene, as a matter of great urgency, to ensure the people in County Louth who rely on respite services are not denied them because of delays or failure in providing funding promised to St. Mary's. I ask the Minister to address this crisis in his response to the debate.

Dr. Devins

I am delighted to have the opportunity to speak on the Health (Amendment) (No. 2) Bill 2004. I congratulate the Minister for bringing forward legislation so quickly. It might appear that this legislation is being rushed, but the fact is that the Government has reacted with commendable speed to a difficult situation. People in receipt of a pension who, for whatever reason, have had to go into long-term care, have a portion of their pension payments deducted by the relevant health boards. This is in line with a long-established principle of paying for bed and board, which has operated in this country for the past 50 years. It is worth noting that this has been the situation under successive Governments of all political hues. However, it has recently emerged that the legal basis for such charges may not be sound. As the Taoiseach indicated in the House yesterday, once it was shown that there might be a legal difficulty, the Tánaiste and Minister for Health and Children immediately ordered all the health boards to desist from charging patients who were in long-term care, while the same time she sought a definitive opinion from the Attorney General.

That opinion is now to hand and the Government has moved with commendable speed to put any such charges on a sound legal basis. It is important that any charges made by Government must be founded on legal security. Hence the reason for today's Bill. These charges relate to the cost of shelter and maintenance and amount to approximately €120 per week. There is no charge for any medically related expenses incurred by such residents. The State pension is provided to people who qualify as a contribution towards their living costs of shelter and maintenance. In that regard the Government has stated that it hopes to have the old age pension raised to €200 per week by the end of its lifetime. That promise was made in An Agreed Programme for Government and it will be reached. The Fianna Fáil-Progressive Democrats Government delivers on its promises and this is a prime example of how the elderly may be looked after in a caring fashion.

In the past it appears that various health boards followed different patterns as regards whether patients in long-term care should be charged. Indeed, even within individual health boards different approaches appear to have been followed by separate institutions. There was a high degree of confusion over how the charges were to be applied. I know of some people who were notified on admission that the deductions would come into operation after a certain length of time, while other residents were not charged for a considerable interval. This type of administrative bungling led to confusion and a degree of inequality. The Bill before the House will remove any such indecision and place any charges to be made on a sound footing. It will ensure uniformity throughout the State.

I especially welcome the ex gratia payment being made to every person who has been charged in the past. Anybody who has been a long-term resident in a State institution and has had at least €2,000 deducted from his or her means, will receive a €2,000 refund. I welcome the fact that it will cover people currently in long-term care or who have received such care in the past. Some concern has been raised which suggests many of these people may not be able to apply for this payment. I am delighted the Taoiseach made it clear that the State will make these payments automatically. People who qualify will not have to make applications. The State will do the administration.

The new Health Service Executive will be in charge of these payments and I urge it to send the money out as quickly as possible to the people who qualify. For those who may not be aware of the ex gratia payment, advertisements will be placed to alert the general public to the scheme. I urge the Health Service Executive to concentrate the advertising on local newspapers and local radio stations. Many elderly people listen to local radio and I hope that word about this payment will disseminate as widely and as quickly as possible. The sum of €2,000 is not inconsiderable and will be warmly welcomed by the recipients. It is right and proper that the State should make this payment, as a recompense to the elderly who have had to pay for long-term care when there was not a sound legal basis for such deductions being made by the health boards.

For many people the State can often appear to be distant and far removed from their daily activities. It can often appear to be cold and unfriendly. This will put a human touch to the State's business and it is being done out of sense of moral obligation rather than as a legal requirement. It has been mentioned that approximately 20,000 will qualify for this payment. I do not know how that figure was arrived at. It is conservative and I believe the figure to be much higher. The Department of Health and Children got it wrong when it estimated the number of people who would qualify for medical cards on reaching the age of 70. Whether the figure of 20,000 is right or wrong, the important point is that all people who have had money deducted should receive this ex gratia payment as soon as possible. This Bill will correct the confusion of the past and bring clarity to the issue of payment for long-term care. I congratulate the Minister on her speed in correcting this important issue and I commend the Bill to the House.

Mr. Ring

I would like to share time with Deputy McCormack.

I want to be fair to the Minister and I compliment her for dealing with this matter when it was brought to her attention. She made a big play about the fact that the Attorney General gave her the information. In 2001, the Attorney General cleared the last Bill and he is now the Minister for Justice, Equality and Law Reform. He made a mess of that Bill and he has now made a mess of his Department.

On 16 December 2003, a meeting was held in the Gresham Hotel with CEOs of the health boards. The then Minister for Health and Children, Deputy Martin, was at that meeting, as were the Ministers of State at the Department, Deputies Tim O'Malley and Callely. They discussed at that meeting the overcharging of people over the age of 70. The then Minister knew well about it, as did the Ministers of State, so let us not pretend that this was brought to their attention in the past few weeks. They robbed the old people of this country.

What about those who were over 70 who had medical cards and for whom no State bed was provided? Such people in my county were refused beds and had to go into private accommodation. They are not being looked after, so what will happen to these people? Their pension was taken away from them and their family members had to subscribe. They were hardly able to afford it, even though they had a medical card which obliged the State by law to provide for them. Many people made great play about this. I pointed out four years ago on the health committee that the Ombudsman said that the State was obliged to provide a bed for someone over the age of 70. I put that on the record four years ago when I was junior spokesperson for Health and Children, and the Minister can check that if she wants.

I listened to Deputy Devins talk about the GMS scheme. If he was owed €100,000, would he accept €5,000 from the State? I deal with people on social welfare who over-claim and I can tell the Deputy that the State will not take €2,000 from them if they owe €15,000. When the State attacked people with off-shore accounts, it penalised them and did not take a subsidised amount of money. If the State owes money to the public, it has to pay it back. We cannot have two laws; one for the State and one for the ordinary people. If the State owes money to the elderly, it must be paid back.

The then Minister for Health and Children, Deputy Martin, knew about all this. I compliment the current Minister for dealing with the matter before the House today. However, the Minister, Deputy Martin, and members of the previous Government should not wash their hands of this issue as they knew all about it. There should be a public inquiry into this, but we should not get solicitors and barristers involved as they have made enough money from inquiries. The Committee of Public Accounts should now conduct an inquiry into this incident to find out who knew what. If the Minister, Deputy Martin, knew about it, he should resign like they do in Britain. People who were over 70 had money taken from them. The Ombudsman identified that and I identified it, as did many other Deputies in this House. What will happen to those who had a medical card, who needed and were approved a State bed, yet got nothing from the State? We have opened up a can of worms and instead of rushing legislation through the Dáil, we should have closed off the loophole and had a full debate about the elderly.

This is a disgrace. The State robbed the poor and it should at least pay back the money. There should be no excuses and no €2,000 payments. This is not a cattle subsidy, but money the State took off old people. It should be paid back as the State has an obligation. This House is not a private institution. The State lays down the law of the land, and the law of the land states that if one takes something wrongly from another person, it must be paid back. The State must pay the money back to the elderly and to the family members left behind.

Mr. McCormack

This Bill shows the hypocrisy of the Government, particularly the Minister for Health and Children. I do not compliment the Minister on bringing this legislation before the Dáil. This is a cruel attempt to retrospectively legalise something that was illegal for three and a half years. It brings this House into disrepute and subjects politicians to deserved ridicule. It will certainly lead to more cynicism among the public about politicians. Rushing through this legislation on the last sitting day before Christmas should cause an outcry among the public. Health boards and the Department have confirmed that they have been illegally deducting money from old age pensioners. The Government is now making an attempt to muddy the waters. Despite such an attempt to confuse the issue by referring back to earlier Bills, it is very clear that since the Health Bill 2001 was enacted under which people over 70 qualified for medical care, health board deductions from pensioners were illegal.

Health boards have illegally taken €100 million from pensioners in health board nursing homes, or 80% of patients' pensions. That amounts to €80 per week per patient in 2001, €104 per week in 2002, €117 per week in 2003 and €120 per week in 2004. That means that over the past three and a half years, health boards have illegally taken €19,812 from a person on a non-contributory pension. The Minister now wants to wipe the slate clean by offering such people €2,000. Who does she think she is codding?

I was intrigued to hear Deputy Devins suggest that those people would welcome €2,000. Would he welcome €2,000 if he was owed €19,800? No one would welcome that in this day and age. It is not clear if pensioners in private nursing homes with public beds also had those amounts illegally deducted from their pensions. What about the person in a private nursing home who could not get a bed in a public nursing home? Is such a person to be treated as a second class pensioner compared to others? There is no way the Minister will get away with that.

This Bill will be passed today with the support of the Government parties. That is a tragedy because it is bringing this House into disrepute. What is the position on compensation for the next of kin of such pensioners who have died since July 2001? Will they be refunded? One would think that the Government was in liquidation, offering people 10 cent for every euro illegally taken from them. If this Bill is not challenged, it will attempt to make three and a half years of illegal activity retrospectively legal. We as legislators are a disgrace if we allow such legislation to pass through without protest. That is all we can do on this side of the House, because the Government has already decided that it will do that, which is highly questionable. We as legislators are a bad example to tax dodgers, cheats and others who see the Government rushing through legislation to help it avoid paying money legitimately owed to people. It is no wonder that people are cynical about politicians.

The Minster for Health and Children is giving all politicians a bad name because the public will say that just because politicians owe money, they are able to fix it up. When members of the public owe money, nobody can fix it. A person on social welfare who is accidentally or otherwise overpaid has to pay back the money to the State. Yet the State will not pay back the money to the old age pensioners who had this money deducted from them. I was a Member of the Seanad when, on 17 December 1987, the famous rod licence Bill was rushed through the House. That, too, was rushed legislation. Rushed legislation is never correct. The then Government, after rushing that Bill through, discovered its mistake and spent the following two and a half years trying to get off the hook before abandoning the legislation. I warned the then Government that day in the Seanad and I warn this Minister now that rushed legislation is bad legislation.

I urge the Minister not to make the same mistake. Our citizens live 70 years to qualify for medical cover but now, in less than 70 minutes, the Minister will illegally take more than €19,000 from them. Our senior citizens deserve better and this Dáil should not be used to rush through legislation that makes a farce of Members as public representatives and leads to cynicism about politicians and what they do. This Minister for Health and Children is adding to that cynicism.

Ms O’Donnell

I wish to share time with Deputy Sexton.

Acting Chairman

Is that agreed? Agreed.

Ms O’Donnell

As a long-standing Member of the House, party Whip of the Progressive Democrats and former Opposition spokesperson on health, I regret that we must rush through this legislation on the last day of the session. Patently, it will receive inadequate scrutiny. However, I accept the advice of the Attorney General and the political judgment of the Tánaiste and the Government that these are extenuating circumstances and that to protect the Exchequer from the loss of an income stream which has been accepted for the past 50 years by all parties in the House, it is appropriate to move quickly to regularise the situation with these charges.

The legal advice is that the current system of charging for long-term care is without legal basis, notwithstanding that such charges have been made in good faith under the relevant regulations for 50 years. This legislation seeks to regularise the matter and to protect the Exchequer against liability for the total cost minus the charges, which is deemed to be approximately €10 million per month. That income stream amounts to approximately €100 million per annum. It is important, in the context of the overall review of the health services system, that every Member of the House supports endeavours to get maximum value for taxpayers' money which will amount to €11 billion in the Estimates for next year's health budget.

The question is whether the Tánaiste is doing the right thing. Obviously, the Opposition queries that. I believe she is. The political call the Tánaiste has made on this issue is that she has a constitutional duty to protect the taxpayer against this patent loss of income as a result of a malfunction or maladministration. I welcome that the Tánaiste took immediate action when this matter was brought to her attention.

This saga raises questions about who knew what and when. For that reason, the Tánaiste, in characteristic form, decided to put an inquiry in place. It will be headed by an eminent individual who will go through the various aspects of this matter and test how robust the administration was in dealing with it. It is clear that the matter was brought to the attention of the Department of Health and Children in March 2003 and that it was discussed at departmental level. The minutes of that meeting, which was attended by three Ministers, senior officials and chief executive officers of the health boards, were circulated. It is clear the matter was raised and an instruction was given that legal advice be sought. For some reason, following receipt of the legal advice, a letter was drafted by the Department but not sent.

There are issues of legitimate concern. The Tánaiste has indicated that she is not seeking to blame but to avoid a situation whereby such a malfunction, maladministration or mistake can recur. I was involved in 25 debates in this House about the hepatitis C scandal. In that situation, legitimate questions were raised by Opposition Deputies over a period of two years. They tried to extract the truth about what turned out to be a total disaster in terms of the effectiveness of the then Department of Health and the blood transfusion service to protect vulnerable women and to protect the taxpayer against huge liability due to negligence.

Credit is due to the Opposition for tabling the appropriate questions to the Minister on this issue. It succeeded in extracting the truth in so far as we know it. I applaud the Deputies who tabled questions in that regard. It is essential in a Department so large and costly as the Department of Health and Children that there be a system of proper accountability for its massive, multi-billion euro expenditure. This is one such case. I regret that the Government is forced to introduce this legislation in such a hasty manner but it has a constitutional obligation to move speedily when it is apparent, and legal advice from the Attorney General indicates, that the State must protect the taxpayer.

It is disingenuous of the Opposition to suggest that no charges be levied for persons in full-time care——

Mr. Sherlock

That is not being said.

Mr. Perry

Nobody said that.

Ms O’Donnell

——when Deputies from all parties have accepted these charges over the years. If people examine the substance of this issue, they will see that the Government is trying to do the right thing. The issue of charging for people in full-time care, particularly the elderly, will have to be dealt with on a more long-term basis given the demographics. Every Deputy knows that.

I commend the Bill to the House. The Opposition should understand the situation in which the Government finds itself. I look forward to the results of the inquiry that has been established by the Tánaiste. It will be to the benefit of the Department that when mistakes are made, people take responsibility for them.

Ms Sexton

I welcome the opportunity to speak on the Bill. I take serious issue with the emotive, over the top and exaggerated language used by some Opposition Members, particularly Deputy McManus. Talk of mugging the elderly is outlandish and calls for an apology and full restitution are grossly unfair. If Deputy McManus had listened to the Minister for Health and Children, she would have heard her say that where mistakes are made it is important that they be acknowledged, that responsibility be taken for them and, if possible, that they be redressed. As is her trademark, the Tánaiste is doing that and ensuring that lessons are learned and applied.

I particularly take issue with the attempt to draw a comparison with AIB's recent episodes of overcharging customers or the penalties imposed by the Revenue Commissioners on individuals for deliberate attempts at tax evasion. The charges on people in long-term residential care were not being levied for base profit considerations or to fill the State's coffers. They were being used to support the provision of quality services for those in long-term care. The situation in the AIB or any other institution is utterly different. Attempts to draw such comparisons amount to cheap, political points scoring. The money raised by these charges was used to provide essential, long-term care services for those from whom they were raised.

Deputy McManus has been her party's spokesperson on health for a considerable time. She is aware of and understands the cost involved and the resources required for the provision of high quality appropriate long-term care. It is highly disingenuous of her to suggest there was something morally wrong in what the Government was doing. These charges were illegal; they were not immoral. That is an extremely important distinction.

It has been the practice of successive Governments since 1954 — Governments in which colleagues of Deputy McManus served — to levy appropriate and necessary charges for those in long-term care. Is Deputy McManus now suggesting that if her party were in power, no charges would be levied on anybody in public nursing homes? I had a cursory look at the Labour Party manifesto but have seen no such commitment in its pages. In fact, the manifesto makes very little reference to care of the elderly. I recall that it was the Tánaiste at our party conference in April who made a political commitment to the elderly by pledging to their care Exchequer funding currently used for SSIA schemes. Nobody recognises more than she the contribution of this group to the country over the past 50 years or is as anxious to ensure they are cared for and cherished in their later years. The Tánaiste's record stands on its merits.

While Deputy McManus paid tribute rightly to Deputy Perry of Fine Gael for raising the issue of the legality of charges, I detected a certain regret that she missed the opportunity to do so herself. I wonder if that is the cause of today's naked opportunism. Deputy Cowley wants all deducted moneys to be refunded. While we would all love that, Deputy Cowley knows full well that he and other Members will be back in the House seeking extra funding for various health services nationally.

Today's legislation will bring clarity to a regime that has not operated on a sound basis for nearly 30 years. It represents a genuine attempt to correct flaws in the system. It is imperative, therefore, that the Bill is passed today. I commend it to the House.

Mr. Boyle

I propose to share time with Deputies Crawford and Hayes.

Acting Chairman

Is that agreed? Agreed.

Mr. Boyle

It is difficult to know whether any additional words can be summoned by Opposition Members to express our outrage at the emergency legislation before us. The analogy has been made whereby it is suggested the Tánaiste runs the risk of being considered in future political history in the same way as Ernest Blythe who took a penny off the pension. The effect of her legislation is an attack on the most vulnerable citizens who find themselves in need of care, who had been in receipt of State money and then that money was taken from them. They are now being given half a horse to repay the damage done by the Government.

Like previous speakers, I find it incredible that information was made available to departmental officials but not, according to Deputy Martin, to the Minister. We must accept that information was available and made known but resulted in political inaction. A particularly offensive aspect of the Tánaiste's response in providing for an ex gratia payment of €2,000 is that it will not only fail to meet the costs of the people who were overcharged, but will send a series of mixed messages on the care of the elderly. Where do those who choose to care for aged relatives in family settings stand in terms of Government policy? Will they be promised an ex gratia payment on foot of the money they save the State? The recent budget was particularly deficient in the provision of additional resources for carers. Will the voluntary agencies which visit and provide resources to those who cannot receive full-time nursing home or family care and consequently live alone receive an ex gratia payment based on the number of people with whom they work?

The lack of joined up thinking in this context is as typical of the Government as the reactive approach to legislation we have seen far too regularly in the 29th Dáil. We are beginning to lose count of the number of Bills that have been introduced on an emergency basis. Emergency Acts always come back to the House at a later date to receive the more extensive consideration required to formulate better legislation. Unfortunately, the Government has chosen to travel down the wrong road again. Rather than to own up properly to its mistakes, the Government has chosen to create a new set of victims.

Mr. Crawford

I welcome the opportunity to say a few words on this very important legislation. I am vexed that it should be introduced at the last minute in the session. It is another example of rushed legislation, which has always proved in the past to have had negative consequences. I congratulate my colleague, Deputy Perry, for bringing this matter to the attention of the public. He has done a wonderful service to the elderly and the system of care provided for them. While I welcome the fact that the Tánaiste has come out with her hands up, her offer falls far short of what is required.

It is interesting that the Tánaiste can introduce retrospective legislation when it is required to save the Government money. It should be remembered that when she was Minister for Enterprise, Trade and Employment, it was decided it would be illegal to legislate to apply increases in redundancy payments retrospectively when I wanted her to backdate them for workers at Lissadell Towels. The Taoiseach himself said it would be illegal to make the Bill before us retrospective. Who are we to believe? What is the legal position? I remember a previous scenario in which animal health grants were made retrospective to January and subsequently to an earlier date to suit the individuals concerned in legislation introduced in May. If money could be provided to deal with an animal health issue, it is strange that we are so anxious to prevent the payment of money to care for the over-70s. They are people and they built the State.

It is clear that the problem was known to the previous Minister, Deputy Martin, and Minister of State, Deputy Callely. It is stated in the documentation supplied by the Tánaiste that a meeting attended by Deputies Martin, Callely and Tim O'Malley took place this day 12 months ago at this exact hour at which the subject of long-stay charges for persons over 70 years of age was discussed. Why, despite written evidence from a senior health board representative that the matter was signposted in July 2001, must the Bill be introduced suddenly a few hours before the House breaks for Christmas 2004?

There are many things I would like to discuss in this context. I cite the example of a farmer who lives in his own home, but as it is in his mother's name, its value is taken into account in an assessment for subvention. Will the legislation before us provide that family with a chance to obtain a subvention? Cavan-Monaghan is a Border area that is supposed to be well looked after due to the peace initiative. At the last election, we had 254 people in receipt of subvention but there are only 214 now. People must register on a waiting list to receive one. The House must reconsider the issue as soon as possible when sitting resumes after Christmas to ensure we make proper provisions for care of the elderly. The Minister of State opposite should note that this is not a laughing matter but is extremely serious. The people involved built the State.

Mr. Hayes

I am pleased to have an opportunity to say a few words on this very important Bill. We must commend Deputy Perry on his insistence in seeing this issue through. It is a demonstration of the importance of the job of backbenchers that Deputy Perry was so successful in his efforts. His achievement must be recorded.

While it is positive to see the issue involved addressed, it is a pity in some ways that we must have this debate. Once again, older people have been treated unfairly.

The truth is that elderly people are very vulnerable. They depend on the State in their later years and need security. This legislation has highlighted the insecurity this problem has caused many elderly people and the need for legislation. When the Bill is passed the Minister should ensure that people are informed of their entitlements, either by way of an advertisement campaign or through direct contact. I was on a local radio programme this morning and listeners were telephoning in inquiring about entitlements. There is total confusion surrounding the issue and the Minister should clear it up and ensure everyone is aware of his or her entitlements.

Ireland is not the best country in the world in which to grow old because of our attitude, this problem that has now arisen and the general insecurity. That affects not only older people but the many families who have to look after elderly parents or other relatives. We have forgotten about the elderly for too long. They have made a major contribution to society. Proposals must be brought forward to ensure the elderly are looked after properly. All the figures confirm that the country is getting better off by the year and in that respect we should examine the way we look after our elderly.

Mr. O’Connor

Like other colleagues I welcome the opportunity of contributing to this debate. I thank those prominent members of the Opposition who have turned up to hear my contribution.

Humble backbenchers do not often get an opportunity to put statements on the record but I wish to be associated with the remarks made this morning about Mr. Paddy Behan because I know the worth of Mr. Behan. I would also like to be associated with the warm Christmas greetings that were expressed——

Mr. Sherlock

This is a different matter. It is a serious matter.

Mr. O’Connor

——because listening to the debate, it is more like "Bah, Humbug". That is a pity.

Mr. Sherlock

The Deputy is wasting time with that guff.

Mr. O’Connor

Perhaps we need to be reminded——

Mr. Boyle

Who is introducing the Bill?

Mr. O’Connor

I did not interrupt Deputy Boyle so he might just allow me my few minutes to speak, although I know the Ceann Comhairle will protect me. Other colleagues talked about nursing homes in every parish in their constituencies and I am sure they will not object if I mention Tallaght.

I wish the Minister of State, Deputy Power, well in his job. I agree with one statement made earlier by the Opposition. There is a need for a comprehensive debate on the care of the elderly. I represent a constituency with a young population. There is not a large elderly population in Tallaght, although we have some elderly residents. There are challenges in that regard and in my constituency of Dublin South West, particularly in the Tallaght area, we have long had a difficulty with regard to accommodation for the elderly. I made the point in various debates, particularly in debates on Private Members' business, that many families come to see me regarding subvention, property issues, which was the subject of some debate earlier, and the problem of finding accommodation. Like many other families in the Dublin region they have to go elsewhere to find accommodation because it is not available in many of those communities.

Despite being the third largest population centre in the country, Tallaght has suffered in that regard. There are a number of private nursing homes in Tallaght, and there is the Crooksling Hospital in Brittas. I am pleased to refer to the recent development of the Kiltipper Woods care centre, which is a new care centre catering for the elderly and for young, chronically ill people. That centre, which is only a mile from Tallaght Hospital, provides a tremendous service to the local community.

I do not disagree with some of the comments of my colleagues opposite but we should be fair to the Tánaiste who has reacted to a particular problem. She was right to bring in legislation to address it. I am bemused when I hear Members complain about legislation. One day they are calling for more legislation and the next they are saying too much legislation is rushed through the Houses. As a new Member, I sometimes get confused about the situation here and it has taken me some time to realise that many Members are simply scoring political points. As we are so close to Christmas, although not as close as Deputy Crawford appears to think — it is longer than a few hours away——

Mr. Crawford

We will gladly sit next week.

Mr. O’Connor

The public can see through that cynicism. They know we are trying to deal with all the business. That is what we are doing here today and on which we will vote later in the afternoon. There is other legislation we could have dealt with today but the Government would be in dereliction of its duty if it did not respond to a problem that was brought to its attention. Like other colleagues, I am not afraid to compliment Deputy Perry and his colleagues in that regard. They are in opposition and that is what the Opposition does in a democracy.

The Minister and other colleagues have put on record the view that the legal advice on the issue of the charges being made in respect of medical card holders who are long-stay patients in publicly funded residential care was requested in the first instance by the South Eastern Health Board. The advice it received was then passed on to the Department in March 2003. The Department consulted on the matter with health board representatives and we were told on a number of occasions —I do not understand why it is not believed — that the issues raised were considered over a period of months in the context of an overall review of eligibility arrangements under way in the Department of Health and Children.

The legal position on long-stay charges in health board institutions is based on a succession of provisions in the Health Acts, various sets of regulations made under those Acts and interpretation of those provisions arising from judgments on cases in the courts. The capacity of health boards to raise charges from persons with full eligibility has been contested on a number of occasions over the past 30 years, and those matters have been placed on the record.

The overall position about charges in public institutions was discussed at the end of year review meeting held with chief executive officers of the health boards on 16 December 2003. The record shows that as a result of that discussion a small group was convened in the Department to prepare a position paper on the legal issues surrounding charges for long-stay patients in public institutions as a prelude to submitting a request for legal advice to the Office of the Attorney General.

The Minister impressed me when she said the work of the Department during 2004 was dominated by a number of issues including the unprecedented requirements of the health reform programme which have demanded a large commitment of time, particularly at senior level, in the Department and on the part of successive Ministers; the requirements of an active Presidency of the EU in regard to health issues; the management of ongoing service pressures in areas like accident and emergency, disability services and services for older people and the management of ongoing financial pressures. I am glad some colleagues acknowledged that, in those circumstances, the follow through on the position paper prepared in the Department did not receive the priority that would otherwise have been possible. In the event, the request for legal advice from the Office of the Attorney General was made, as the Minister said, on 27 October 2004.

The Attorney General gave initial legal advice to the Tánaiste by letter of 5 November 2004. In light of that advice, work was immediately commenced on preparation of a short Bill to amend the Health Act 1970. That culminated in preparation of the draft Bill submitted to Government on 14 December 2004. I am told a further advice was received from the Attorney General in December 2004. On foot of this, a letter was issued to the chief executive officers of the health boards and the Eastern Regional Health Authority asking them immediately to stop making those charges, pending the introduction of amending legislation. I am told the health boards confirmed on 10 December that they had taken the necessary steps to do so.

I have listened carefully to the debate and I sympathise with many of the points made. It is the job of the Opposition to oppose and the job of the Government to govern. The Minister for Health and Children has been applauded, not only from the PD benches but also by other speakers, for the manner in which she is dealing with this matter. Sometimes one is damned if one does and damned if one does not.

The legislation will be welcomed. Some of my colleagues have drawn flak in response to their stated opinions regarding payments. That may be fair enough. However, the Minister is right to deal with the question of payments and I hope the matter will be dealt with as efficiently as possible and the cheques paid.

I wish you a happy Christmas, a Cheann Comhairle

Mr. Sherlock

I wish to share time with Deputy McHugh.

An Ceann Comhairle

Is that agreed? Agreed.

Mr. Sherlock

Unlike other speakers, I wish to make a few points relevant to the Bill.

Mr. O’Connor

I was following the example of Deputy Sherlock's colleagues.

Mr. Sherlock

The Bill will amend section 53 of the Health Act 1970 by substituting, "Notwithstanding anything in the Health Acts 1947 to 2004 but subject to subsections (3), (4) and (9), the Minister shall" for "the Minister may", which is the wording of the Health Act 1970. If this Bill amends the Health Acts 1947 to 1970, where stands the Health Act 2004?

Because the Bill proposes to impose a retrospective liability, contrary to the constitutional rights of people thereby affected, the Labour Party does not support it. The Bill substitutes the word "shall" for "may" in the 1970 Act. The health authority did not act on the Supreme Court judgment of 1976 and no legislation was passed to deal with the matter. We were told that because of major pressures, such as the health reform programme and the EU Presidency, time could not be found to deal with this matter. Consequently, the elderly were forgotten and continue to be forgotten.

The Bill prevents people from seeking rebates if they did not claim before 14 December 2004. Certain parties can claim because they had been advised to do so by their legal advisers and have lodged claims. They will be fully compensated because they were fortunate enough to go to their legal advisers and make applications. Others will be prevented from doing so.

The measure applies to community hospitals and where the health boards have contract beds in private hospitals. No reference is made to the fact that families of elderly people are directed to private nursing homes. Health board officials are providing them with application forms and telling them that places are not available in public facilities. These families have no choice but to accept places in private nursing homes. They then find they are liable for the full cost, except for a subvention of €190 per week, which is what most of them are entitled to. Medical card holders are entitled to the full cost of private care. Surely it should be taken into consideration that many people are being directed to private nursing homes. It is not their choice. They go to private nursing homes because health boards do not have adequate provision for them in public hospitals.

In some instances, family homes are sold to meet the cost of private nursing home care. Old people lying in hospitals know their family homes are being sold. Legislation requires that it be done in order to pay for private nursing home care. Such people have full eligibility under the Health Act 1970 but they are not receiving the service for which they are eligible. In introducing this legislation the Government seeks to renege on future payments for medical card patients. Under the Health (Nursing Homes) Act 1990, health boards pay a subvention to assist a person in meeting the cost of nursing home care. I call on the Government to review this system. The Minister says she has asked Mr. John Travers, a retired head of Forfás to examine the Department's management of this issue and the reason the Attorney General's advice was not sought at the earliest possible time.

Given this situation, what can we expect when power is handed over to the Health Service Executive and full control is given to 11 people? What is happening is outrageous.

Mr. McHugh

I thank Deputy Sherlock for sharing time.

I acknowledge the extent of the information given to the House by the Minister this morning. She outlined very clearly the position pertaining to this issue and the sequence of events surrounding it. I thank her for that clarity and openness.

However, the manner in which the issue has been handled since it first came to light in 2002 throws up many questions which need to be answered fully. We must ensure that there is accountability. When issues arise which affect the vulnerable they must be dealt with urgently and fully.

Another disquieting aspect of the case is that people who complained were not charged while others who did not complain were charged, even though they were in the same health board area. That is despicable. It resurrects a comment made by the Minister for Finance on budget day that people with disabilities were treated poorly in the past because they had a weak voice. Unfortunately, that is true but it illustrates a reprehensible trait in Irish society. The strong prosper at the expense of the weak. Government must guard against this trait. We must always protect the weak.

There is no evidence of any attempt to protect the weak in the handling of this matter. The initial approach taken to the ex gratia payment of €2,000, that elderly people in nursing homes would have to make a written application, is proof of that. The strong may be able to do this but the weak would not. This is not how a caring, sharing Government should operate and it bestows no credit on the Government that it only backed off from this proposal in the face of opposition.

This came to the attention of the Department in 2002. At the very least, all money taken from patients since that time should be refunded, together with the ex gratia payment. We cannot have one law for the Government and a different law for the citizen. For example, if a social welfare recipient unknowingly receives an overpayment from the State, he or she will be pursued by the State for repayment of that amount, even where he or she is unaware of the overpayment and the fault lies with the Department of Social and Family Affairs. The Government is obliged to repay the money knowingly and illegally taken from those vulnerable people.

I do not understand why yet another report must be compiled by the Department on this issue. Is the Department not expending money that could be used elsewhere in the health service? There has been a total cock-up in the handling of this issue since 2002. It has been allowed to continue for a number of years without being acted on because it was judged that other matters were more important. The Minister does not need a report. The circumstances are clear and she can and should take action to ensure there is not a repeat.

Ms F. O’Malley

I am glad to have the opportunity to contribute to the debate. I refer to the charge that the Government is rushing the legislation through the House. It would be a highly irresponsible Government that would not rush it. If it was left until after the Christmas recess, a bill of €30 million would be amassed, and such an amount would be better spent in other areas. It would be reprehensible if the Government did not take its duty seriously and seek to remedy the issue as soon as possible. The charges about rushing the legislation are extremely disingenuous.

Mr. Sherlock

What about 1976?

Ms F. O’Malley

Good Government is about priorities and making sound judgments. State spending is finite and a decision to levy a charge on people in long-term care who have the means to pay is the principle underpinning the legislation. The question of how much it costs if it is free does not have to be addressed by Opposition Members. The Government must constantly think of this wise oxymoron. It is easy for Opposition Members to say that if they were in a position of power and influence to make this decision, they would let the public finances run riot and refund every person who has made such payments since 1976. That would be highly irresponsible and no party in Government would consider that option. It is a cheap shot and politicking on the part of Opposition Members to throw these accusations at the Government. The language used has been anything but temperate. It is a pity because it does politics no good to throw an issue such as this around like a football.

References or attempts to make comparisons with recent overcharging scandals in the AIB and other institutions are also highly unfair. The Minister pointed out yesterday that in these cases the bottom line in for-profit organisations was involved whereas, in this case, State resources are involved. It is in our interest that they are managed correctly and in the most efficient manner possible. The resources generated in the State should be devoted to those who are not in a position to pay and they should be provided in the most appropriate way possible. That is why choices must be made.

The Government's gesture is generous. The €2,000 payment is a sign of goodwill. Many people may feel it is not enough but it is a measure of goodwill and an acknowledgement of the imposition of an illegal charge. If limitless amounts were refunded, one would have to ask what health services would be cut back to provide the money. It is a wise gesture on the part of the Government for this reason.

Minister of State at the Department of Health and Children (Mr. S. Power)

I thank Deputies for their contributions on this important legislation. A number of issues have been raised but I will not be able to respond to all of them.

Ms McManus

The Minister of State does not have enough time.

Mr. S. Power

The Minister provided documentation along with her speech earlier. It included the minutes of a meeting on 16 December 2003 attended by departmental managers, health board chief executive officers, the former Minister for Health and Children, Deputy Martin, the former Minister of State at the Department, Deputy Callely, and the Minister of State, Deputy Tim O'Malley. The Secretary General has confirmed when item No. 4 in the minutes, long stay charges, was discussed, the former Minister, Deputy Martin, was not present.

Ms McManus

I believe the Minister of State.

Mr. S. Power

The Opposition can be as cynical as it likes.

Ms McManus

I am glad the Minister of State clarified that.

Mr. S. Power

The Deputy can believe what she wants.

Ms McManus

I believe the Minister of State.

Mr. S. Power

As the Minister pointed out in her opening contribution, the legislation is necessary to provide a legal framework for the long-established practice of charging those patients in long-term care in health board run institutions and publicly contracted beds in private nursing homes. The Office of the Attorney General has provided advice on the current system of charging for long-term care and has concluded that health boards have no legal entitlement to charge persons who are fully eligible, including those who are 70 and over.

Given this advice, my Department wrote to each of the health boards instructing them to stop imposing charges on fully eligible persons in receipt of health services, pending the enactment of legislation to regularise the power to impose such charges. If this loophole is not closed to allow this funding to be retained, a significant loss of resources for the health services will result. As the difficulty may date back to 1976, the need to bring in the legislation becomes even clearer, given the potential liability for the State.

Deputy Ó Caoláin stated a number of people who complained had their charges stopped and that refunds had been provided in some cases. He asked what is the basis for the refunds. We do not have details in this regard but we will contact the health boards and ask them to investigate these issues. We will provide information to the Deputy when they report back.

It is generally accepted these charges, as contributions to the cost of care, are fair and reasonable. In addition, if more money is refunded, less money will be available for services. It would be irresponsible not to endeavour to continue to collect these charges in these circumstances. The charges in the legislation are intended to cover maintenance of patients in publicly provided long stay care.

I am aware of concerns about the provisions of the Bill that declare that the imposition of charges prior to the enactment of the legislation is and always has been lawful. However, my Department is satisfied, in the light of legal advice available to it, that it is constitutional and in accordance with the European Convention on Human Rights. The Department has received advice from the Office of the Attorney General, which includes advice from external counsel, including Dr. Gerard Hogan SC, a leading expert in constitutional law and co-author of Kelly on the Constitution.

The Bill seeks to protect the State from having to refund moneys that could date back to 1976 in regard to charging practices, which were accepted under successive Governments. The refunds issue could have a significant impact on the finances of the State and its ability to provide public services across the board as well as health services. This key aspect of the legislation is vital to preserve the resources available to the Exchequer and it is in the interests of the taxpayers. The subsection as drafted, therefore, is the best way to protect the resources of the State contributed by the taxpayers and the only financially responsible way to proceed.

The Minister earlier made it clear that one of her immediate objectives was to place on record all the facts that she knew. Deputy McManus asked for copies of all relevant legal advice. It is a long-standing policy of Departments not to release legal advice as it would be prejudicial to the State's ability to defend litigation in the courts.

Deputies referred to comments in the report of the Secretary General regarding the complexity of the legislation and the need for overall review. The comments refer to the overall body of law surrounding eligibility, and the policy and legal complexity involved helps explain the time it has taken to conduct the overall review that has yet to be completed.

An Ceann Comhairle

As it is now 3 p.m., I am obliged to put the question on the amendment.

Question put: "That the words proposed to be deleted stand."

The Dáil divided: Tá, 64; Níl, 54.

Tá

• Ahern, Noel.
• Andrews, Barry.
• Ardagh, Seán.
• Blaney, Niall.
• Brady, Johnny.
• Brady, Martin.
• Callanan, Joe.
• Callely, Ivor.
• Carey, Pat.
• Carty, John.
• Cassidy, Donie.
• Cowen, Brian.
• Cregan, John.
• Cullen, Martin.
• Curran, John.
• Davern, Noel.
• Dempsey, Tony.
• Dennehy, John.
• Devins, Jimmy.
• Ellis, John.
• Finneran, Michael.
• Fitzpatrick, Dermot.
• Fleming, Seán.
• Gallagher, Pat The Cope.
• Glennon, Jim.
• Grealish, Noel.
• Hanafin, Mary.
• Harney, Mary.
• Haughey, Seán.
• Hoctor, Máire.
• Jacob, Joe.
• Keaveney, Cecilia.
• Kelleher, Billy.
• Kelly, Peter.
• Killeen, Tony.
• Kirk, Seamus.
• Kitt, Tom.
• Lenihan, Brian.
• McDowell, Michael.
• McEllistrim, Thomas.
• McGuinness, John.
• Martin, Micheál.
• Moloney, John.
• Moynihan, Michael.
• Mulcahy, Michael.
• Nolan, M.J.
• Ó Cuív, Éamon.
• Ó Fearghail, Seán.
• O’Connor, Charlie.
• O’Donnell, Liz.
• O’Donovan, Denis.
• O’Flynn, Noel.
• O’Keeffe, Batt.
• O’Keeffe, Ned.
• O’Malley, Fiona.
• Power, Peter.
• Power, Seán.
• Sexton, Mae.
• Smith, Brendan.
• Wallace, Mary.
• Walsh, Joe.
• Wilkinson, Ollie.
• Woods, Michael.
• Wright, G.V.

Níl

• Allen, Bernard.
• Boyle, Dan.
• Breen, Pat.
• Broughan, Thomas P.
• Bruton, Richard.
• Burton, Joan.
• Costello, Joe.
• Coveney, Simon.
• Cowley, Jerry.
• Crawford, Seymour.
• Crowe, Seán.
• Cuffe, Ciarán.
• Deasy, John.
• Deenihan, Jimmy.
• Durkan, Bernard J.
• Ferris, Martin.
• Gilmore, Eamon.
• Gormley, John.
• Gregory, Tony.
• Hayes, Tom.
• Healy, Seamus.
• Higgins, Joe.
• Higgins, Michael D.
• Howlin, Brendan.
• Kehoe, Paul.
• Lynch, Kathleen.
• McCormack, Padraic.
• McGrath, Finian.
• McGrath, Paul.
• McHugh, Paddy.
• McManus, Liz.
• Mitchell, Olivia.
• Moynihan-Cronin, Breeda.
• Murphy, Gerard.
• Neville, Dan.
• Ó Caoláin, Caoimhghín.
• Ó Snodaigh, Aengus.
• O’Shea, Brian.
• O’Sullivan, Jan.
• Pattison, Seamus.
• Penrose, Willie.
• Perry, John.
• Quinn, Ruairi.
• Ring, Michael.
• Ryan, Eamon.
• Ryan, Seán.
• Sargent, Trevor.
• Sherlock, Joe.
• Shortall, Róisín.
• Stagg, Emmet.
• Stanton, David.
• Twomey, Liam.
• Upton, Mary.
• Wall, Jack.

Tellers: Tá, Deputies Kelleher and Kitt; Níl, Deputies Kehoe and Stagg.

Question declared carried.

Amendment declared lost.

An Ceann Comhairle

I declare the Bill read a Second Time in accordance with Standing Order 119(2)(i).

We now move on to Committee Stage in accordance with an Order of the House today.