Dáil Éireann debate -
Wednesday, 11 May 2005

Vol. 602 No. 2

Leaders’ Questions.

Mr. Kenny

I welcome the delegation from New South Wales, whose colleagues from Tasmania were here yesterday.

I would like to raise the issue of today's announcement of the repayment by the Government of illegal charges taken from thousands of patients in public nursing homes in long-stay beds over a long number of years. I seek assurances from the Taoiseach. First, as this matter was discovered in this House, having been raised by Deputy Perry, myself and others on several occasions, will the Tánaiste announce the detail of how the Government intends to deal with this in the House? Second, how long will that process take? I understand that 20,000 are to be paid promptly and another 40,000 in respect of the estates involved before the introduction of the Statute of Limitations, to which I will come later. Third, can the Taoiseach assure us that there will be no need to apply for compensation regarding charges? When overpayment in respect of drugs was discovered — the €2,000ex gratia payment referred to by the Tánaiste — the initial decision was that it should be paid only to those who applied, although the Government later relented.

How long will it take, when will the Supplementary Estimate be introduced, and for how much will it be? Are the Taoiseach and the Government satisfied that they are not entering into an area of grave constitutional difficulties regarding the introduction of a Statute of Limitations?

The Taoiseach

Deputy Kenny raised several questions. We will announce the scheme's full details today, dealing with all aspects that have come to light to date. I have been part of a Cabinet sub-committee with the Minister for Finance, Deputy Cowen, the Tánaiste and Minister for Health and Children, Deputy Harney, and the Attorney General. We have met several times to discuss making this an easy, transparent process that is facilitative and not adversarial. We are trying to make it as simple as possible and have examined the best ways to make payments.

Records do not exist in all cases; that is an important point. In many of the hospitals and institutions there do not seem to be many records at all, so the process will not be easy. We are considering the use of an outside agency with experience in mass claims. Many of them exist, since this has happened elsewhere. It will take time and require a legislative base. That legislation is now being prepared. I have no doubt that more cases will arise over time that will require examination, but in the last number of months a wide range of claims has come in on the telephone line regarding different aspects. We have tried to cover all those in today's announcement.

Paying back exactly the amount that people paid may be burdensome rather than easy. One of the things that we examined, which will be in today's document, is giving 80% of the contributory pension claim to try to ease payments. We have considered how we can do it in the most efficient way possible. It will take time, and if money is required this year, a Supplementary Estimate will have to be made. However, before the process is set up, we will have to tender for a claims group to do it. It will obviously have to work under the guidance of the HSE, however. If that legislation is passed in the autumn I do not envisage a great amount being paid out this year. However, it should be up and running on a full-year basis next year to deal with claims.

Mr. McCormack

Will it be paid before the election?

The Taoiseach

It will take some years.

Deputy Kenny's last point concerned constitutional aspects. The Attorney General has been involved throughout, and there are many legal issues. One cannot be certain in such instances that people will not challenge decisions, but in so far as we have been advised, we have tried to protect that as much as we can.

Mr. Kenny

How much does the Taoiseach expect the Supplementary Estimate to be for —€500 million, €1 billion or more? Second, does the Statute of Limitations apply to those in psychiatric institutions or those who have been in long-stay beds who suffer from intellectual disabilities? Third, why is it necessary to introduce a specific statute for this type of claim, which is quite unusual, in that public institutions and bodies are involved, obviously with the consent of the Department? Section 71 of the Statute of Limitations 1957 deals with the general law in Ireland. Is there no likelihood of claims that the Government was involved in a fraudulent State cover-up? In February 1987, the late John Boland, then Minister for Health, introduced and had Government approval for proposals to deal with the illegality, but that was subsequently dropped by the incoming Government in March of that year, in which the current Ceann Comhairle was Minister for Health.

An Ceann Comhairle

The Ceann Comhairle should not be drawn into debate on the floor of the House.

Mr. Kenny

The Ceann Comhairle is not being drawn into the debate. When he was Minister for Health, the Ceann Comhairle was part of an Administration that dropped proposals from a previous Government which had dealt with this matter and would have put in on a legal basis. How can the Government introduce a Statute of Limitations for six years back when the Government of 1987 knew these charges were illegal and that the preceding Government had a proposal to deal with them? Is the Government not entering into an area of grave constitutional difficulties? The Taoiseach told us before Christmas——

An Ceann Comhairle

The Deputy's time is long concluded and I ask him to give way to the Taoiseach.

Mr. Kenny

——that the Act introduced by the Tánaiste was constitutional but the Supreme Court shot that down. How certain is he, based on the advice of the Attorney General, that what he is now doing will stand up? How is it that the Cabinet could last week approve money for two State drivers for the Fianna Fáil Leader of the Seanad——

An Ceann Comhairle

I ask Deputy Kenny to give way to the Taoiseach.

Mr. Kenny

——but refuses to deal with these cases?

Finally, in the case of many patients——

An Ceann Comhairle

The Deputy may not ask any more questions.

Mr. Kenny

——their probate was not taken out. Will the Government force people to take out probates before they apply for compensation in respect of these charges?

An Ceann Comhairle

Deputy Kenny is being disorderly.

The Taoiseach

I will resist the temptation to go back to 1976 and talk about all those involved in this issue. It is more important than that.

Mr. Kenny

The issue was dealt with in 1987 and approved by the then Cabinet.

The Taoiseach

The Estimate is approximately €850 million which will be paid out over a number of years. There is no question of fraud in the judgment of the Supreme Court, which I am sure Deputy Kenny read. Although there are several categories for which this arises, the six-year rule will not generally apply for persons of unsound mind because they were not in a position to deal with this situation. We have endeavoured to deal with the matter as carefully as we can but this does not protect from the possibility of people taking cases or actions under some particular area.

We have followed the Supreme Court judgment and the Attorney General's advice. I said some weeks ago I was not certain whether legislation would be required for certain categories of patients. The advice is that there are several categories to which payment could be made without legislation. However, to cover all the categories that have come to light — Deputies will see today it is quite a detailed and extensive list — these particular categories must be covered by legislation. We have been advised that primary legislation is the best way of dealing with this.

The Government has set out to ensure the process is facilitative for the public rather than adversarial and that it is one where speed and due process are important. We already have the ex gratia scheme which will be taken into account. The scheme will be announced today and the legislation will be prepared. If it is deemed to be the best approach to deal with the issue effectively, we will tender for a claims agency. There are many such agencies in Europe and the United States which have dealt effectively with similar issues. It will take some considerable time. I emphasise that we are talking about public patients in the various institutions. The scheme does not cover the categories of private patients in other institutions.

Mr. Rabbitte

I come back this morning to the case of the O'Hara family. I understand the Health Service Executive is in discussions with the family about a care package. Until this is concluded, I will not return to yesterday's further misrepresentation by the Taoiseach.

On the issue raised by Deputy Kenny, I point to the question of political accountability for this scandal. The Taoiseach did not answer the question about how much the scheme will cost but the spinners he put out, after he refused to answer questions about it in the Dáil, said it will cost €1 billion. Is this the case or will it cost more or less than that? What is the Taoiseach's response in terms of his political accountability for the issue of illegal nursing home charges?

The Minister, Deputy Martin, claims he got the brief on this matter but did not read it. We know the two Ministers of State at his then Department read it and we know his advisors were present and that they now say they did not read it. In respect of the critical missing file that was referred to the Attorney General and about which we were told there was a conflict of evidence, we now have the evidence of a principal officer. Mr. Hardy makes clear it was his understanding the letter had gone to the office of the Minister. Moreover, he told the committee that "everybody else in the Department was of the same view".

More pertinently, we now have an e-mail from the workshare partner of the person who prepared the file for the Attorney General. She says in this e-mail, which did not find its way into the Travers report, that she was called in my Mr. Michael Corban in the Minister's office. Of this meeting she says:

He remarked that the issue seemed complicated and he asked me if I would explain it to him. My understanding was that he was about to give the submission to the Minister and wanted to be able to explain generally what it was about. As far as I recall, I said something along the lines that it was about the need to change legislation but that the Minister would need to read the submission for himself as it was quite detailed.

That did not get into the Travers report and if it did——

Mr. Martin

It did.

Mr. Rabbitte

It did not.

Mr. Martin

There was a conflict of interest in respect of this evidence. Deputy Rabbitte has only one agenda in this matter.

An Ceann Comhairle

I ask the Minister to allow Deputy Rabbitte to continue without interruption.

Mr. O’Dea

Deputy Rabbitte is lying.

Mr. Rabbitte

Now listen to them.

Mr. McCormack

The Ministers are rattled.

Mr. Rabbitte

The Minister, Deputy Martin, is responsible in this matter. His only defence is that he did not read the briefing document. Mr. Kelly lost his job but it is the Minister who should have lost his job. If he had an ounce of respect for his office, he would now tender his resignation.

Mr. Martin

That is what Deputy Rabbitte wants.

Mr. McCormack

That is what the Minister should do.

The Taoiseach

Deputy Rabbitte seems not to be asking me a question but to be making a statement. The Travers report is a comprehensive examination of all the facts. The report is being examined comprehensively before a joint oireachtas committee and people are giving their evidence. Deputy Rabbitte knows many of the issues he raises are dealt with fully in the report. The Deputy wants to make a political judgment in respect of those aspects. Everybody can study the report and the evidence. I will attempt neither to rewrite the Travers report nor to put a political spin on the evidence which has been heard by the committee.

Deputy Rabbitte began by raising the figure of €1 billion. It is not precisely known how many will respond to the scheme. The Tánaiste's latest figure is €850 million but we cannot know how many claims will come in, for what periods, for what amounts and all other relevant data until the scheme is in place. The cost could well go to €1 billion and we will have to make supplementary provision for that.

Mr. McCormack

That Minister is getting his payback.

Mr. O’Dea

Somebody should quiet that poltroon.

Mr. Rabbitte

In the words of a United States Senator, "a billion here and a billion there and soon you are talking big money". This Government has no regard for money.

Mr. O’Dea

That is very funny. We get value for money while the Labour Party had no such success.

An Ceann Comhairle

The Minister, Deputy O'Dea, should allow Deputy Rabbitte to continue without interruption.

Mr. Rabbitte

Wee Willie Winkie runs through the town. Upstairs, downstairs in his nightgown.

(Interruptions).

Mr. O’Dea

Deputy Rabbitte is the Woody Allen of Marxism.

An Ceann Comhairle

I advise the Minister that the Chair will have to treat him like any other Deputy who is disorderly.

(Interruptions).

Mr. McCormack

The Ceann Comhairle should be careful in case the Minister writes about him next Sunday.

An Ceann Comhairle

Deputy Rabbitte should be allowed to continue without interruption.

Mr. Rabbitte

We are talking about persons in nursing homes who were illegally charged by the Government at a cost to the taxpayer of what the Taoiseach now says could be €1 billion. We have a Minister in office who was provided with this legal advice in a comprehensive brief from the South Eastern Health Board and he did not bother to read it.

Mr. Martin

That is not the case.

Mr. Rabbitte

That is his defence and it is completely unbelievable. We now find from the evidence being presented before the committee and from the e-mail I have read that the critical report which was prepared for referral to the Attorney General to advise the Government, a file that heretofore had gone missing, that could not be explained and which led to the removal of the Secretary General of the Department, was in the Minister's office.

Mr. Martin

We do not find that.

An Ceann Comhairle

I ask the Minister——

Mr. Martin

On a point of order, we do not find that. The committee has not found that.

Mr. Rabbitte

The person whose work partner prepared the file——

An Ceann Comhairle

Deputy Rabbitte's minute has concluded.

Mr. Rabbitte

——was asked to explain it to Michael Corban so that he could explain it to the Minister. The basis was that legislation would be required to put it right. Now we know that it was he who was culpable and not Michael Kelly. Will there be any political accountability in this House for a scandal which, by the Taoiseach's own admission, has cost the taxpayer €1 billion?

Mr. O’Dea

What did the late Brendan Corish of the Labour Party do?

Mr. Rabbitte

Is Willie standing up?

An Ceann Comhairle

Allow the Taoiseach to speak without interruption.

(Interruptions).

Mr. O’Dea

The late Brendan Corish knew what John Boland was signing; he was aware of the situation——

Mr. Howlin

Perhaps Deputy O'Dea should give evidence.

Mr. M. Higgins

He thinks he is down at the Sunday Independent.

An Ceann Comhairle

Allow the Taoiseach to speak without interruption.

The Taoiseach

I endeavoured to respond seriously to what Deputies Kenny and Rabbitte raised in regard to nursing home charges and to state that we are trying to deal with the issue in a comprehensive way. I know Deputy Rabbitte really wants to talk about the Travers report. I cannot rewrite the Travers report, so there is no point getting into it. I will not get into the arguments. Deputy Rabbitte is making a political point that if all this had been resolved in the past year or two, it would have meant all that happened since 1976 would not have happened. He knows that is nonsense. The intelligent public knows that if this had been sorted out a year ago——

Mr. Timmins

The Government is responsible for nothing.

An Ceann Comhairle

Allow the Taoiseach to speak without interruption.

The Taoiseach

If it had been sorted out a year ago, it might have cost €800 million as opposed to €850 million. That is not the point. The fact is that from 1976 when the late and great Brendan Corish was Minister for Health, problems arose as a result of this. Several Ministers from both sides of the House were involved since. We must solve what the Supreme Court said. Throwing the issue around and trying to claim the €1 billion cost arose under the former Minister for Health and Children, Deputy Martin, is really a waste of time. It is not even smart politics.

Caoimhghín Ó Caoláin

Is the Taoiseach aware of the great disappointment and, indeed, anger in the disability sector and among people with disability at the Government's refusal to adopt their proposals to salvage the flawed Disability Bill which is now on Committee Stage? The disability legislation consultation group was set up by the Government to facilitate an input by the sector in the framing of the Bill but is the Taoiseach aware that later today, the DLCG will consider its future, including the option to pull out of the process and of opposing the Disability Bill outright?

Will the Taoiseach confirm that the Minister of State, Deputy Fahey, told the DLCG that the Government will not meet its five minimum demands? Is it also the case that the Minister of State, Deputy Fahey, said there would be no purpose in the DLCG meeting the Taoiseach on this grave issue? Is that the Taoiseach's view?

What role does the Taoiseach believe the DLCG can serve if its minimum recommendations to salvage this legislation are not taken on board by Government? I avail of the opportunity to make a last minute appeal to the Taoiseach. Will he use the opportunity of Committee Stage of the legislation to ensure the key and critical proposals of the DLCG, which represents the entire disability sector, are taken on board and enshrined in the legislation and that we have legislation which meets the needs of people with disability and removes the shame of further conflict with that sector?

The Taoiseach

The Government continues to work long and hard with the disability groups. As I said several times previously, no other Bill with which I have been involved over 20 years has taken so much time, effort and consultation. Deputy Ó Caoláin is wrong to say the Government set up the consultation group. The consultation group was involved when the Bill was being prepared over the past three or four years. I met the group many times and the Bill has now been published.

The group met the Minister of State, Deputy Fahey, myself and other Ministers many times and has asked for a whole host of amendments. A large number of amendments have been conceded, if not the five minimum points. There were 40 or 50 points. We have committed to review the legislation after five years, the definition of "substantial restriction" is to be amended to include disordered thought process, there is to be provision for intervention early in life to ameliorate a disability, the option of chief executive officer of the Health Service Executive is to be removed from the Bill and so on. The group requested a large number of amendments, which it has received.

Last Friday the DLCG asked the Minister of State, Deputy Fahey, to look at five further areas. I can go through them if required but I would not have time now. The Government discussed them again yesterday and will respond to the group. The Minister of State will also do so. I will write to the group giving our position on them.

This is the last Bill in a range of legislation which this Government has brought in, including the Employment Equality Act, the Equal Status Act, the Equality Act, the Education for Persons with Special Educational Needs Bill and the Comhairle (Amendment) Bill.

We have also put in place the additional resources which we were asked to do last year. The Minister for Finance announced the provision of a special disability multi-annual funding package of €900 million covering the years ahead. We have brought in a range of legislation, including this Bill. We are trying, in every way we can, to accommodate the Bill.

There is one amendment which is not possible, that is, to state in legislation a position on resources. That has never been done in Irish legislation.

Mr. McCormack

There are things happening now that never happened before.

The Taoiseach

We have explained that at length to the group. I do not believe I will live to see a Minister include such a provision in a Bill. Members are telling people they should keep pushing for something which has never happened since the foundation of the State and which is unlikely to happen this side of the year 4000. I have received letters stating this has happened in Canada and America. It has not happened anywhere in the world, including New South Wales, Tasmania or elsewhere. We will try everything we can to make this legislation as perfect as possible but we are not about to include a provision which is not in legislation anywhere in the world and has never been done in this country. It is wrong for Members to advise people to keep pressing for something which is impossible.

Caoimhghín Ó Caoláin

I ask the Taoiseach to answer this question directly. He has indicated he will write to the DLCG but will he not meet the group? That is critically what is required. I urge him to do so and to confirm that in the House.

It is not good enough for the Taoiseach to say rights-based legislation of the type sought does not exist in any other jurisdiction. So what? What is wrong with this country taking the lead in terms of a global approach to the needs of people with disability? What is wrong with Ireland setting out best practice and giving a lead in the world on such matters? It is time we did so and had the courage to give leadership in such important issues.

The National Parents and Siblings Alliance estimates that even under the new multi-annual funding programme, it will take until 2021 before the current backlog of people looking for residential care can be accommodated and that does not take into account those who will come on stream in the intervening years. I know a little bit about that on a personal level.

For the Taoiseach to say no Minister here or anywhere would ensure the ring fencing of resources in legislation is not true.

The Government introduced legislation in 2001 pertaining to the horse and greyhound industry that ring-fences revenue raised in that industry.

An Ceann Comhairle

The Deputy's time has concluded.

Caoimhghín Ó Caoláin

Is it not just as important to ring-fence the needs of people with disability as it is to look after the betting industry in this State?

Mr. Morgan

Absolutely.

Caoimhghín Ó Caoláin

All I can say is "shame".

Mr. O’Dea

What happened to Shergar?

Caoimhghín Ó Caoláin

Generalissimo O'Dea is probably riding it off into the hills. Be off with him.

An Ceann Comhairle

Let the Taoiseach speak without interruptions.

The Taoiseach

Deputy Ó Caoláin knows that he is mixing points up.

Caoimhghín Ó Caoláin

Not at all. If the Taoiseach answers the questions——

The Taoiseach

The Deputy has had his three minutes.

Caoimhghín Ó Caoláin

The Taoiseach is mixed up because he has not got the text.

The Taoiseach

The Deputy is only allocated one minute and has spoken for three minutes. He knows he is mixing up issues.

Mr. J. Higgins

He has learned much from the Taoiseach.

The Taoiseach

The legislation goes far beyond anything to be found anywhere else. I mentioned the one area which it cannot cover. It has an independent assessment of need and a statement of services to which they are entitled.

Mr. Morgan

Deputy Ó Caoláin has asked a question.

The Taoiseach

It has access to an appeals process to deal with complaints about the assessment of service statement. Ultimately, it has access to the courts to enforce the decisions of an independent appeal. It has transparent multi-annual funding commitments of capital and current expenditure. It has clear and transparent sectoral commitments.

Caoimhghín Ó Caoláin

The Taoiseach should leave his text and answer the question.

The Taoiseach

Every one of those issues is in the legislation.

(Interruptions).

The Taoiseach

It is the same old question and Deputy Ó Caoláin should be honest. He and his party never believed that the Government would introduce the Employment Equality Act, the Equal Status Act, the Equality Act 2004, the Education for Persons with Special Educational Needs Bill, the Comhairle (Amendment) Bill and a very good Disability Bill. He clings on to the hope that he can get some political gain by ranting on.

Caoimhghín Ó Caoláin

Answer the question.

The Taoiseach

I will answer the point today. Deputy Ó Caoláin is being entirely dishonest in this debate.

Caoimhghín Ó Caoláin

Will the Taoiseach answer my question?

(Interruptions).

An Ceann Comhairle

Deputy Ó Caoláin cannot come into this House, ask a question and then frustrate a Government member who wishes to answer the question.

Caoimhghín Ó Caoláin

I am entitled to an answer.

An Ceann Comhairle

The Deputy cannot frustrate another Member of the House when he or she is called by the Chair to speak.

Caoimhghín Ó Caoláin

No one is——

An Ceann Comhairle

I ask the Deputy to behave himself. If he does not wish to do so, he knows what to do.

Caoimhghín Ó Caoláin

I have asked the Taoiseach a question.

An Ceann Comhairle

If the Deputy opens his mouth once more, he will leave the House.

Caoimhghín Ó Caoláin

I will not give the Chair that satisfaction.

An Ceann Comhairle

Very well. Deputy Ó Caoláin will leave the House.

I move: "That Deputy Ó Caoláin be suspended from the service of the Dáil."

Question put.

Caoimhghín Ó Caoláin

Vótáil.

An Ceann Comhairle

In accordance with Standing Order 61, the division will take place on Thursday next at the beginning of business.

Mr. Allen

This is ridiculous. The Chair is becoming very tetchy.

An Ceann Comhairle

Deputy Ó Caoláin is to leave the House.

Deputy Ó Caoláin withdrew from the Chamber.

Mr. Kenny

The Members on the other side of the House should beware.