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Dáil Éireann debate -
Thursday, 30 Mar 2006

Vol. 617 No. 3

Health (Repayment Scheme) Bill 2006: Second Stage.

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

I am pleased to introduce Second Stage of the Bill to the House. A significant and long-standing feature of our health system of publicly funded long-term care has been the principle that it is fair and reasonable that people should make some contribution to the cost of their long-term care. The Government, however, accepts fully the Supreme Court decision which found as unlawful the retrospective imposition of charges on fully eligible persons for their publicly funded long-term care. The Bill provides for the legal framework for making repayments to those wrongly charged for inpatient services in publicly funded long-stay residential care. This legislation must be passed at the earliest opportunity by the Oireachtas to ensure that those due a repayment receive it as soon as possible. We also propose legislation to regulate patient private property accounts. It is considered efficient to address both issues in the same Bill.

Charges for publicly funded long-stay residential care have been raised by health boards from people under two sets of regulations, namely, the lnstitutional Assistance Regulations 1954, as amended in 1965, which applied to all, including those with full eligibility, and the Health (Charges for In-Patient Services) Regulations 1976, as amended in 1987, from which medical card holders and those with dependants were exempt.

The Supreme Court judgment in the Mclnerney case in 1976 narrowed very significantly the grounds on which a charge could be raised for institutional assistance; it could only be made for shelter and maintenance without any medical or nursing care being provided. A circular from the Department of Health to the health boards in 1976 authorised a practice by which the chief executive officer of a health board could regard patients as not meeting the criteria for full eligibility while being maintained in an institution, since necessary general practitioner and surgical services were being provided for them, and so withdrew their medical cards. The withdrawal of full eligibility in this way allowed a charge for inpatient services to be raised.

The health boards, with the knowledge of the Department of Health and Children, continued to raise charges under both sets of regulations up to 9 December 2004. On the basis of advice from the office of the Attorney General, the Department instructed the health boards to cease charging all fully eligible persons in receipt of inpatient services in public long-stay institutions and in contract beds in private nursing homes, solely by virtue of a contractual arrangement with a former health board, with effect from 9 December 2004. By way of a goodwill gesture, the government agreed to have ex gratia payments of up to €2,000 made to those wrongly charged and who were alive on 9 December 2004. The Health Service Executive has so far made payments in excess of €21 million to approximately 10,800 individuals.

The Health (Amendment) (No. 2) Bill 2004 was passed by both Houses of the Oireachtas on 17 December 2004. The purpose of the Bill was to provide a statutory basis for the imposition of charges on those to whom inpatient services were being provided in public long-stay institutions. It also contained a retrospective element which provided that charges levied prior to the enactment of the legislation were also lawful. This Bill was referred to the Supreme Court for a decision in regard to its constitutionality. The retrospective element provided that a relevant charge levied under section 53 of the Health Act 1970 for long-stay care prior to the enactment of the legislation was lawful. The Supreme Court decision of 16 February 2005 found this retrospective element of the Bill to be unconstitutional.

The charging for long-stay care was put on a statutory footing under the Health (Amendment) Act 2005 and is being implemented by way of the Health (Charges for In-Patient Services) Regulations 2005. These regulations were signed on 14 June 2005, reinstated charges for inpatient services and provided for the levying of a charge in respect of the maintenance of persons in receipt of inpatient services. The regulations were prepared following extensive consultation with the HSE and others.

The Supreme Court in its decision of 16 February 2005 did not consider the exposure of the State, or the magnitude of the sums involved, to justify the extinguishment of a property right. A Cabinet sub-committee was subsequently established to consider the implications of the Supreme Court judgment. It was agreed that money received by the HSE as a result of the imposition of unlawful charges would be repaid.

In light of the level of repayments which would be due to individuals in certain cases and the overall amount of money involved, it was agreed a repayment scheme to repay fully eligible individuals who paid inpatient charges while in publicly funded residential care would be established and placed on a statutory basis. On 11 May 2005 the Government agreed the key elements of the scheme for the repayment of these long-stay charges, one of the key considerations being to ensure that those eligible for repayments receive them as quickly as possible with the minimum possible imposition of bureaucracy. It is regretted that, due to the detailed and complex nature of the issues involved and the need to consult with a broad range of agencies and interests, the drafting of this Bill has taken longer than anticipated.

It is estimated that up to approximately 20,000 people who are still alive and a further 40,000 to 50,000 estates will benefit from repayments under the scheme. The overall costs arising from the long-stay charges repayment scheme have been estimated at approximately €1 billion and an appropriate allocation for 2006 will be made when the legislation is passed by the Houses of the Oireachtas.

The unfortunate reality is that a high proportion of those patients due a repayment have varying degrees of mental impairment meaning that any scheme would clearly require appropriate safeguards to be put in place to prevent fraud and exploitation of those who receive repayments and are not in a position to manage their own financial affairs. In these instances the legislation will allow repayments to be placed in patient private property, PPP, accounts. These accounts need to be regulated given the significant amount of money which may be in them as a result of repayments of long-stay charges.

Patients' private property refers to money and personal possessions that patients have with them on admission to care. In the case of long-stay patients, the property also includes regular pension payments. Patient private property accounts are operated by the HSE, and formerly by the health boards, in supporting clients in managing their financial affairs and assisting them in dealing with various aspects of daily living. The patient private property account system manages the private money of long-stay patients, which may include pension income, maintenance charges, spending money or comfort payments to patients or clients and lodgements to clients' accounts.

This account provides the patients with an ability to exercise their autonomy through such activities as choice of clothing, recreational activities etc. The account may be administered by an institution as a service to patients who are not in a position to administer the property themselves or have a relative or other person do it on their behalf. The Department of Health and Children accepts the need for clarity and consistency in the area of patient private property accounts and is introducing a statutory framework for these accounts to protect patients' interests, particularly in the context of large repayments under the scheme being placed in these accounts.

Due to the nature, volume and complexity of the repayments involved, it was decided, in line with the Government decision, to appoint an outside company with appropriate knowledge and experience in dealing with mass repayments. Such a company is being engaged by the Health Service Executive, HSE, to manage the repayment scheme within the agreed Government parameters. This company will also provide an independent assessment of the amount of repayment due to each applicant under the scheme, which will help to reassure the public that the scheme is being operated in the most equitable and effective way possible.

The HSE has supported the decision to engage an outside company as the nature of the work is not one of its core functions and in any event it would not be in a position to administer a repayment scheme of this magnitude within existing resources without having to divert staff from their normal functions in relation to the delivery of health services. The HSE is already committed to providing resources for the implementation of a unitary system for the delivery and management of health services at local, regional and national level following its establishment in January 2005.

An initial procurement process undertaken by the HSE in the latter half of 2005 resulted in 11 expressions of interest being received for the design and administration of the repayment scheme and these were short-listed to three. Following consideration of all the issues, the initial procurement process was terminated in December of last year as the HSE considered the tenders were unsuitable for a number of reasons, including value for money.

The HSE decided that in these circumstances it was necessary to put a new procurement process in place and subsequently placed a further advertisement in the Official Journal of the European Union on 2 February 2006. Seven companies have been short-listed and the HSE is confident that the process will result in a satisfactory outcome. The timescale determined by the HSE for the new selection process, including the appointment of the successful company, is the end of April 2006, with repayments to claimants likely to commence in June 2006.

Consideration had been given to the involvement of public sector staff to assist in administering the scheme; however, the HSE informed the Department that the time constraints of the procurement process and the potential for significant logistical difficulties and protracted delays, with consequent implications for the commencement of the repayment scheme, did not allow for this option to be implemented. There would also have been a requirement to assign dedicated HSE resources to train and supervise such staff thereby removing them from their normal duties with a subsequent effect on service provision.

However, in recognition of the importance of progressing repayments, the Tánaiste has asked the HSE to identify all those living patients who were wrongfully charged and to calculate the details of the repayment due to them in as many cases as possible during the period prior to the selection of the outside company. This will ensure that a significant proportion of patients should receive their repayments within a short period of the company becoming operational. The HSE has informed the Department that approximately 10,000 repayments have been calculated by the HSE to date, approximately half of which relate to those who are alive.

Extensive discussions have taken place with the Office of the Attorney General, the Department of Finance, the Office of the Revenue Commissioners, the Department of Social and Family Affairs, the Probate Office of the High Court, the Office of the Wards of Court, the Law Reform Commission, the Office of the Ombudsman, the Courts Service, the Data Protection Commissioner, the Mental Health Commission and the Health Service Executive in relation to the provisions contained in the Bill.

In addition, the Tánaiste appointed a National Oversight Committee last August, which is representative of service users, including Age Action Ireland and the Irish Senior Citizens Parliament, to provide an independent input into the design of the repayments scheme and to monitor the operation of the scheme to ensure that it is being implemented quickly and in the most equitable and effective way possible. It is chaired by Professor J. Bernard Walsh, consultant physician, St. James's Hospital, and it reports directly to the Tánaiste.

The committee usually meets on a monthly basis and has examined such issues as mental capacity, appropriate appeals systems and the protection of patient private property. The committee is also in the process of obtaining independent legal advice to assist it in its task. The chair of the committee has met the director of reform and development, Courts Service, to discuss in detail a possible framework for making repayments to persons with diminished capacity. The committee is fully briefed on all aspects of the scheme and has provided valuable input into the legislative process at each stage to date.

The draft Bill has been agreed with the oversight committee. The first report from the oversight committee to the Tánaiste, which I understand will confirm the committee's satisfaction with all aspects of the processes and procedures undertaken by both the HSE and the Department of Health and Children to date in relation to the establishment of the repayment scheme, is due to be submitted shortly.

The Health (Repayment Scheme) Bill 2006 provides a clear legal framework for a scheme to repay recoverable health charges for publicly funded long-term residential care and regulates patients' private property accounts. All those fully eligible persons who were wrongly charged and are alive, and the estates of all those fully eligible persons who were wrongly charged and died since 9 December 1998, will have the charges repaid in full.

The original explanatory memorandum that accompanied the Bill contained an error with regard to the time limit applicable to estates. The original sentence stated: "The scheme will not allow for repayments to the estates of those who died more than six years prior to this date". The sentence should have read: "The scheme will not allow for repayments to the estates of those who died prior to this date"—"this date" being 9 December 1998. This error has subsequently been rectified. However, the memo is not a legal document and the error contained therein does not affect the contents of the Bill.

The decision to limit repayments to estates of those who died since 9 December 1998 reflects the reference in the Supreme Court judgment to the possible application of the Statute of Limitations, namely: "The State has available to it a defence of the Statute of Limitation i.e. a 6 year limit." The Government has a responsibility, in view of the very substantial sums involved, to have regard to what the Supreme Court said about the Statute of Limitations to place appropriate limits on the scale of total repayments which today's taxpayer will have to fund. I am satisfied that the scheme strikes a fair balance in this regard.

Normally an assessment is made by the health boards to determine the eligibility status of a person, which is manifest by means of a medical card. Medical card holders and those aged over 70 with effect from July 2001 are considered to be fully eligible for the purpose of this scheme. In addition, given the vulnerability of those in long-stay care and cognisant of the fact the former health boards did not make a determination on eligibility status in many instances, based mainly on the incorrect assumption that full eligibility could be removed from long-stay care patients as set out in the Department of Health and Children circular 7/76, it has been agreed that those not having a medical card on admission but who fell within the income-means threshold for a medical card, that is, those in receipt of the non-contributory old age pension, will be regarded as having full eligibility for the purpose of this scheme. This will ensure the scheme is broadly inclusive and is implemented in a fair and equitable manner.

All those wrongly charged for inpatient services will be repaid in full. For the purpose of this scheme community hostels which provide either medical or nursing care on a rostered basis are considered inpatient services and residents will have unlawful charges repaid in full.

Priority in making repayments will be given to those who are still alive to allow the persons in question to benefit from the repayment by availing of comforts they may not otherwise be able to provide. In the case of estates, those who paid the charges will not receive any benefit from the repayment due to their death. Many of the living patients have already been identified as a result of the ex gratia scheme announced in December 2004.

At the Tanaiste's request the HSE has already begun proactively calculating the amount of repayments due to living patients in advance of the selection of an outside company. I understand from the HSE that in excess of 10,000 repayments have been calculated to date and this will continue in the period until the company is appointed. This is to ensure prompt repayment can begin in many cases following the appointment of a company.

It is important to note that the repayments will include both the actual charge paid and an amount to take account of inflation by reference to the consumer price index, CPI, a widely accepted tool for monetary calculation over an extended period. CPI data is also available on a regular basis, thereby facilitating a match with periods when payments are due. The index is also used by the Department of Social and Family Affairs in dealing with under payments of social welfare entitlements.

In addition, under current social welfare legislation, any moneys received by non-contributory pensioners and other social assistance recipients are assessed as capital, subject to the existing disregard of the first €20,000 of all capital owned. Repayments to some living patients, depending on the amount of repayment due, could therefore have been significantly reduced. In the case of those who were wrongly charged and are still alive or their spouses, repayments under the statutory scheme proposed in the Bill will be exempt from tax and will not be taken into account in assessing means for health and social welfare benefits.

The normal tax and means assessment arrangements will apply to those who benefit from repayments to estates. Currently, beneficiaries of the estates of others are, for social welfare purposes, assessed with the value of inheritance received from the estates regardless of the original source of any of the capital or property inherited. It is consistent with existing provisions to treat repayments in the hands of beneficiaries of estates as inheritances, assessable in the normal way.

The procedure for obtaining a grant of probate in the case of an estate of a deceased person can be arduous, time consuming and expensive, with the process taking in many instances up to 18 months to complete. For the purpose of the repayment scheme a streamlined procedure is being developed in conjunction with the probate office of the High Court for a person applying for repayment on behalf of the estate of a deceased person. This procedure will allow an individual to obtain the documentation necessary to receive repayment in a timely, cost-effective and efficient manner. This process is solely for the purpose of receiving repayment under this scheme. Where there are other assets of the estate involved or disputes arise among potential recipients, the normal procedures and requirements for obtaining a grant of probate will continue to apply.

The scheme will include an independent transparent, user friendly appeals process which will be independent of the Health Service Executive and the company engaged to administer the scheme. The appeals process will allow both written and oral submissions to support an appeal. Applicants to the scheme will be advised of the outcome of their application as soon as possible and will be provided with details of their entitlement to appeal if their application has been rejected or if they dispute the amount of the repayment. The legislation allows for regular reports on the operation of the appeals process, which will be laid before the Oireachtas.

The scheme will include a provision to allow those eligible for a repayment to waive their right to all or part of the repayment and have the money donated to fund one-off service improvements for older persons and persons with disabilities. Many people have indicated to me that their mother or father was well cared for and, as a result, they might want to donate their payment to help those less fortunate. The fund will be specifically established for this purpose to ensure any money donated will be expended for the purpose for which it was intended. This fund will be audited by the Comptroller and Auditor General and the Health Service Executive will submit an annual report to the Tánaiste on its operation.

The HSE, in association with the scheme administrator, will operate a helpline-advice centre to deal with queries and correspondence from patients, relatives, estates, members of the public etc. Advertisements will also be placed in the media highlighting the establishment of the scheme and where to apply or seek advice. Arrangements will be made to ensure all information on the scheme will be available in the Irish language.

An area of particular concern in the drafting of this legislation and administration of the repayment scheme is in regard to those patients who may have issues in regard to mental capacity. The unfortunate reality is that a high proportion of patients in long-stay care have varying degrees of deteriorating mental impairment and special arrangements are required for such persons given that they will be in receipt, in certain cases, of significant amounts of money but may not have the capacity to manage their financial affairs. As part of the legislation a statutory framework is being put in place to protect patient interests, particularly in the context of receipt of substantial repayments. Where doubt may exist regarding the capacity of an individual, a certificate issued by a registered medical practitioner who has examined the relevant person in the six months prior to the application will be required to be submitted with the application form. In developing the framework for protecting vulnerable patients consideration was given to the work of the Law Reform Commission, which is preparing a comprehensive report on vulnerable adults and the law. The commission expects to publish it later this year. The provisions were also discussed with the Courts Service and the oversight committee devoted extensive time and input to the drafting of these provisions.

Where a doubt exists as to the capacity of an individual, repayments can only be made into the individual patient's private property account, pending a decision on the capacity of that individual. Clearly, this would only apply where the patient is not already a ward of court or has no other legal representative. Moneys lodged to these accounts will be used specifically for the benefit of the individual patient. To protect these moneys in the case of persons with capacity issues no moneys in excess of €5,000 per annum can be used for the benefit of the patient without the payment being approved by the Circuit Court. Day-to-day expenditure for personal purposes can be made without the necessity of court application but the expenditure of large sums of money will be regulated. Moneys may also be invested by the HSE on behalf of the patient in financial institutions authorised by the Irish Financial Services Regulatory Authority.

The legislation also allows for the appointment of an independent person to be appointed by and report to the Minister for Health and Children on patient private property accounts to ensure that these accounts are administered in an appropriate fashion and any moneys expended are for the benefit of the patient. Patient private property accounts will be administered in line with national guidelines which are to be developed by the HSE to ensure consistency in their application throughout the country.

I now propose to briefly outline the main provisions of the Bill. Section 3 allows the Health Service Executive to enter into an arrangement with persons to provide services on their behalf. This will enable the HSE to engage an external company to administer the repayment scheme within the agreed parameters. The Government decision indicated that an outside company with experience in dealing with mass claims would be engaged to manage the scheme within the agreed parameters. I have already referred to the tendering process being undertaken by the HSE in this regard. The timescale currently envisaged by the HSE for the appointment of the company is the end of April 2006, with repayments to claimants commencing shortly thereafter. The company in question will also provide an independent aspect to the validation of claims and the repayment scheme generally.

Section 4 outlines the type of forms and other documents the scheme administrator may require for the purposes of the Act. Section 5 outlines the application process for a repayment using the forms mentioned in section 4. It also outlines the grounds for refusing an application and the closing date for receipt of applications. The legislation allows for applications to be accepted until 1 January 2008 and this date can be extended by regulation if required.

Section 6 sets out the process for determining if an applicant is entitled to a repayment and the amount due. In the event of insufficient information being available on the amount due for repayment, the scheme administrator can make a determination on repayment based on a formula linked to the patient's old age non-contributory pension for the period in which the patient was in care. However, a separate lower or higher rate will be fixed in cases where there is evidence that a reduced or increased charge was paid.

Section 7 allows for applications from living persons to be prioritised over those from estates of deceased persons. This is designed to allow patients to benefit from repayments while still alive.

Section 8 is designed to make the repayments scheme more beneficial than litigation for the applicant and relates to other legislation on which this Bill impinges. This section allows for repayments to a living person or his or her spouse to be disregarded for income tax purposes, repayments under the statutory scheme to living persons or their spouses to be disregarded in means assessments for health or social welfare benefits and for any tax relief claimed for medical expenses in respect of payments or for any probate tax liability that may arise to be disregarded. It will allow for a streamlined process with regard to the normal probate requirements for estates for the purpose of facilitating repayments through the statutory scheme. It also provides that a final repayment will be net of any ex gratia payment made or any outstanding charges due for long-stay care arising from the imposition of the charges for inpatient services in 2005. Currently, beneficiaries of the estates of others are assessed for social welfare purposes with the value of inheritance received from the estate, regardless of the original source of any of the capital or property inherited. The scheme will be consistent with existing provisions, to the effect that repayments to beneficiaries of estates, as inheritance, will be assessable in the normal way.

Section 9 regulates patient private property, PPP, accounts. These accounts consist of money and personal property that is managed on behalf of the patient by the HSE. Where there are no legally appointed representatives for a patient with capacity issues, the repayment due will only be paid into a PPP account, which will be administered on the patient's behalf by the HSE. This is to protect patients who may be in receipt of large sums of money and who are not in a position to manage their own financial affairs. In other cases, the money may be lodged with a financial institution or may at the patient's request be lodged to a PPP account.

This section allows the Minister to appoint a person to oversee the administration of PPP accounts and to report to the Minister on these matters. It also allows the HSE to invest money in PPP accounts on behalf of patients and to use money in these accounts for the benefit of the patient and provides for the HSE to make an application to the Circuit Court to use sums in excess of €5,000 per patient in any calendar year for such purposes.

Section 10 provides that where a person accepts a repayment under the scheme, he or she waives the right to sue for recovery of that charge. Where a person has received a court settlement in respect of a repayment, he or she is disallowed from making an application to the scheme. It allows the HSE to make a lodgement to court of the amount rejected or any other amount that the HSE deems appropriate if an applicant decides to reject repayment under the scheme and pursue action through the courts.

Section 11 provides for the HSE to establish a donation fund to enable those due repayments under the scheme to donate all or part of the repayment. Such donations will be used specifically for improvements in public health services for elderly persons and persons with disabilities, the costs of which are non-recurring, and will be exempt from capital acquisition tax and from any probate tax liability.

Section 12 will facilitate the operation of the scheme and allows the HSE or any person administering the scheme on behalf of the HSE to have access to the records required to enable it to process claims. It protects those to whom the records relate by providing for the imposition of penalties on those who breach confidentiality around any aspect of the scheme. It prohibits the disclosure of information except for the performance of the functions of the relevant person under the Act. It also compels publicly-funded bodies to co-operate with the scheme through the provision of relevant records. The Revenue Commissioners may request the scheme administrator to provide them with details of repayments made.

Section 13 provides for the establishment of a special account to facilitate repayments being made under the Act and to ensure transparency with regard to the repayments or any costs associated with implementing the scheme. The account shall only be used for this purpose and funds will be issued by the direction of the Minister for Finance. All repayments will be paid out of this account, which will be subject to audit by the Comptroller and Auditor General.

Section 14 provides for governance arrangements on the repayment scheme. It allows for reports to be submitted to the Minister by the HSE on request or at regular intervals on the operation of the scheme and the PPP accounts and allows the Minister to lay such reports before each House of the Oireachtas. It requires the chief executive officer of the HSE or a representative of the scheme administrator to give evidence on the scheme before an Oireachtas committee. It also details the information to be kept in respect of applications for repayment.

Section 15 provides that the scheme administrator will inform the applicant of the outcome of the application as soon as possible and will give notice of the reason for the decision and the right to appeal. Section 16 provides for an independent and transparent appeals process by allowing the Minister to appoint suitably qualified persons to determine appeals. It also outlines the grounds on which a person may appeal. The Minister may request reports on the operation of the appeals process and copies of these reports shall be laid before each House of the Oireachtas. The process also allows for appeals to the High Court on a point of law.

Section 17 allows for the recovery of any overpayments and payments fraudulently obtained under the scheme. Section 18 provides that the accounts of the scheme administrator, in so far as they relate to the scheme, may be audited by the Comptroller and Auditor General. The accounts of the special fund established to make the repayments, patient private property accounts and the fund established to receive donated payments can also be audited and reports shall be laid before each House of the Oireachtas.

Section 19 outlines the penalties and offences which can be imposed on persons who make fraudulent applications or on persons who disclose confidential information. Section 20 allows for regulations for the purpose of administration of the scheme and the administration of patient private property accounts. Section 21 allows for regulation to remove an impediment or difficulties which may emerge within a year of commencement of the Act and which may prevent or delay any provisions of the Act from becoming functional.

I now want to outline some of the major developments that the Government is pursuing to improve services for older people. It has been the policy of successive Governments to endeavour to help older people maintain themselves in the community while at the same time providing for residential care which is not prohibitively expensive. The policy of the Government on the development and delivery of services for older people is to maintain them in dignity and independence at home for as long as possible and in accordance with their wishes.

The past 12 months have brought an increased focus on services, particularly in terms of residential and community based long-term care. Additional funding of €150 million for services for older people was allocated in the last budget. A total of 1,366 home care packages are in place, 249 of which have commenced since January 2006. The Health (Nursing Homes) (Amendment) Bill, which was recently published, will ensure that the existing subvention scheme for private nursing home care is grounded in primary legislation and will help the HSE to implement the scheme on a standardised basis across the country.

The general scheme of the health information and quality authority, HIQA, Bill will be published within the next few weeks as part of a public consultation process. The draft heads provide for the establishment of HIQA, the establishment within HIQA of the office of the chief inspector of social services and the establishment of a registration system for residential services for children in need of care, persons with disabilities and older people. The establishment of HIQA and the office of the chief social service inspector demonstrates the Government' s commitment to the health service reform programme. A working group has been established to develop standards for residential care for older people and aims to have draft standards available in July.

Last year, the Tánaiste and the Minister for Social and Family Affairs established an interdepartmental group to examine the area of long-term care for older people. The group included senior officials from the Departments of the Taoiseach, Health and Children, Social and Family Affairs and Finance and was chaired by the Department of the Taoiseach. A number of reports were made available to it, including the Mercer report on the future financing of long-term care in Ireland, which was commissioned by the Department of Social and Family Affairs and published in 2002. Having examined the range of benefits and services in place and the various issues arising from the financing of long-term care, the group has now sent the report to the Government for consideration.

The issue of funding long-term care needs for older people, both residential and community, is among the most difficult and complex areas in the health sector. The demographic challenges facing all countries must be tackled and sustainable programmes put in place. While many different approaches are taken by governments in addressing these challenges, there are no simple answers. Nevertheless, the pace of change from a demographic, social and clinical aspect requires society generally and the Government in particular to respond in a coherent way so that appropriate funding and service delivery programmes can be implemented.

The Bill will provide an appropriate mechanism to allow for repayments to those wrongfully charged for publicly funded long-term care in an uncomplicated manner. The provisions of the Bill will significantly reduce the imposition on patients in terms of bureaucracy. The oversight committee has provided valuable input into the scheme to date and will continue to do so for the foreseeable future to ensure that the scheme is implemented quickly and in the most equitable and effective way possible. The committee will submit reports to the Tánaiste on the operation of the scheme at regular intervals.

I am confident the safeguards put in place with the regulation of the patient private property accounts will prevent the exploitation of those who receive repayments and are not in a position to manage their own affairs. I commend this Bill to the House.

I thank the Minister of State for his contribution. Deputy McManus and I have come from an almost four-hour long meeting of the Joint Committee on Health and Children. If some of the officials feel we are somewhat all over the place with our contributions, I hope they will take that into account. At the committee meeting we experienced the Tánaiste going through another one of her routines of being nine years in denial. The way the Tánaiste and Professor Drumm were speaking, one might believe the Government changed in 2004 and the Tánaiste has only been in Government for the past 18 months. It appears difficult for her to comprehend that her Government has been there since 1997. What we heard at the committee meeting was total nonsense.

Where do we start with this Bill? The delay in delivering it to the House is indicative of the delays this Government experiences in bringing legislation to the Oireachtas, especially if such legislation relates to the health service. The Minister of State mentioned some of these in passing, such as the legislation to clarify entitlements. That legislation was part of the health strategy published in November 2001; we are now moving into its fifth year and the legislation has not been published, which is a disgrace.

The HIQA legislation mentioned by the Minister of State, which has been given a raised status by the Government on the backing of the Neary report, was meant to piggyback the establishment of the HSE and not come two years after. I often wonder if it would have made a difference to the presentation of this legislation if the then Minister for Health and Children, Deputy Martin, had read his briefing notes regarding illegal nursing home charges. It has taken a long time for the Government to put forward the legislation.

The Minister of State, in mentioning dealing with issues regarding the elderly, discussed the policy for funding care of the elderly in future. This matter is of momentous importance to the Irish health care services. For the Government to deal with it as if it is a minor side issue which it will get around to when time is set aside is disgraceful. Our population is getting older and one in 20 of our elderly population will need some type of long-term care. At the committee meeting we heard that a large number of the acute beds in our hospitals are taken up by patients who would be more appropriately placed in long-term care.

Where does the Government stand on this and other issues which have been around for the past ten years? It has published four reports, including the Mercer and the O'Shea reports. There were probably more reports. If a question was put down to the former Minister for Health and Children, Deputy Martin his usual response was another report. The matter has now gone to Cabinet, which is considering another report, although it has not yet published it. One would have to ask if this is complacency, incompetence or whether the Government is sound asleep on such a major issue? There are many issues cropping up in this House with regard to care of the elderly and I am shocked to think we do not yet have a published a policy.

The Tánaiste leads a charmed existence. I believe Deputy McManus and I are asked more questions about what we would do in government than the Tánaiste is asked regarding what she is meant to be doing in government. Every time Deputy McManus or I are on the radio we are asked what we would do. The easiest answer I would give is that I would do more than the present Government. This would not be all that good, as it would not give the patients any significant improvement in the current service. We should question the whereabouts of all the policies and legislation promised. It may be time for the national media to take notice of what is happening in this House.

Would the Minister of State care to speculate on how many major health Bills go through this House every year? Disregarding amendments, the average for the past three or four years is one per year. At today's committee meeting, the Tánaiste stated we would have legislation on the Medical Practitioners Act, although we have waited ten years for it; the pharmacy Bill, although we have waited five years for it; HIQA legislation; and nursing legislation. I fell asleep at that stage, perhaps Deputy McManus can remember the rest of the list. The Tánaiste has promised five major Bills between now and year's end, when her average record to date has been one per year. I do not believe it will happen, and we should be realistic.

I have a point on which the Minister of State might comment before this legislation goes through the Houses, as it requires a clear answer from Government. The Government was caught out on this issue and belatedly responded to it, although officials from the Department of Health and Children did their best to inform the Minister and Ministers of State. However, the then Minister for Health and Children, Deputy Martin, and his Ministers of State did not take much notice at the time. There is a big question which could make this look like small change. The 2001 legislation gives everybody over 70 a statutory entitlement, and there is a difference between a statutory entitlement and something at the discretion of a CEO.

If people over 70 went into a private nursing home because a public bed was not available, on the basis of their statutory entitlement will they be able to claim a refund for private nursing home costs if somebody succeeds in bringing the issue to the Supreme Court? It is currently going through the courts. That is my reading of it, and I may be wrong. However, the issue is being evaded by the Minister, and the focus is on what is now legal and how the problem has been dealt with. This is similar to what Deputy McManus and I discussed with regard to the Travers report.

We believe this issue came up in bright flashing lights in the Department of Health and Children during the construction of the 2001 legislation. Two years later we still have no clear answer as to whether we are right. Before this Bill is processed we need a clear answer on whether the patients currently going through the courts looking for refunds for private nursing home charges on the basis of the 2001 legislation are wasting their time or if they will succeed. If they succeed we may be here next year or the year after thinking that the €400 million or €500 million now under consideration is very small change.

Paradoxically, the Minister has in the past been criticised because of undue haste in putting legislation through the House. The manner in which the Health Act 2004, which established the HSE, was put through was seen to be with undue haste. We are now paying the price. The same can be said of the original legislation from which this Bill emanated. It was rejected by the Supreme Court and had to be submitted again to the House because the Government got it wrong. The Minister gets it wrong so often when legislation is rushed, but the Government was very slow in getting this legislation before the House. Why are we dealing with this legislation 14 months after the problem? Why was the legislation not dealt with last year? These people are, for the most part, in their final years in long-stay care and will only have a short time to enjoy their refund. I return to what the Minister said about people in long-stay care. The average length of a person's stay in a nursing home is two to three years, not a long time. The Department of Health and Children made ex gratia payments of €21million to 10,800 people and, as the Minister of State pointed out, the HSE, which assists the new organisation making the repayments, will have to repay people who are alive first. He said they accounted for approximately 10,000 of the cases with which the HSE is now dealing. The Minister of State may correct me but I deduce from those figures that anything up to 5,000 people eligible for repayment from the time of the first legislation in November 2004 are now deceased. If the Government continues at that rate most eligible people will have passed away before it even starts making the repayments. All the fine words about looking after those who are alive and about being a caring Government is so much bunkum.

The Supreme Court reinforces this in its statement that, whatever expectations may exist, it is an indisputable fact that the Bill will affect very many people who are old, poor, disabled mentally or physically or, in many cases, all of these. As already stated, patients so situated will have little or no capacity to understand their rights under the legislation or to protest the unlawfulness of the charges. Nor will they, as it seems, have the pleasure of enjoying the refunds being made by the Government.

An explanatory memorandum provided by the Government, which the Minister of State had to correct, was very thin, only consisting of one page. We are accustomed to receiving more detailed memoranda like the Minister of State's speech, wherein he covered each section of the legislation and explained it in more detail to us. I would have expected that, with more than a year to prepare the legislation, the explanatory memorandum would have contained more detail. It makes it difficult to understand what is happening.

Section 3 allows the executive to enter into an agreement with a person to provide services for the purposes of this Act. During the period in which we were waiting for the Minister to publish this legislation we were told the delay was due to the fact that outside companies were quoting up to €50 million to administer the scheme. As Deputy Kenny said, we have asked on a number of occasions why the HSE cannot do this. As the Minister of State has pointed out the HSE seems to have successfully dealt with the 10,000 people who are alive in a very short period by making the ex gratia payments, which means they must have accessed a significant number of their records. I am surprised we are considering an outside company and paying it up to €40 million to make the additional repayments for the 40,000 to 50,000 people who are deceased. If there is a delay caused by the HSE doing the work, it will not make much difference to their estates and certainly will not make any difference to the patients. I am surprised that the HSE states it is not capable of doing the job, when it seems to have been perfectly capable of dealing with matters up to this point. In some respects the Government is passing a vote of no confidence in the HSE by outsourcing something which is a public administration matter. The mistake was made by the Government and should be dealt with by the HSE if it is to demonstrate the improvement it has supposedly brought to the health services. The HSE began collecting information on who is entitled to repayment. Employing consultants to administer the scheme sounds strange when the HSE has already managed to make ex gratia payments worth €20 million to more than 10,000 people.

The Minister of State said the consultancy firm will be engaged in April. Is that the case? Have contracts been signed or will we have to wait for that to be announced at a later stage?

I hope the forms patients or their families must complete will be as simple as possible. I do not believe patients or their families should be required to make claims in duplicate. If the HSE has most of the information there will be no need for patients to complete additional forms. Whatever way it is administered I hope the forms will not be used as a delaying tactic to avoid making the repayments.

Section 5(3)(a) and (b) provide that applications made after 1 January 2008 or such later date as the Minister may prescribe will not be considered. However, there is no deadline by which repayments must be made. I have often thought it would be reasonable for such a timeframe to be included in legislation, within which people could expect a repayment to be made, especially when a time limit for claiming a repayment has been set. We need to speed the process up to make sure people who are alive are paid as a matter of urgency. A deadline should be set whereby repayments must be made having regard to when applications are received. Those who already made application to the Department could benefit from a shorter deadline.

As the Department has been dealing with this matter for so long I expected it to have more accurate figures for the number of people eligible to claim. We have calculated that there are approximately 5,000 people alive to make a claim. That the Department knows that and the details of the people involved means the money can be repaid quickly. I am surprised the Department does not have more accurate figure for those due a repayment. The average repayment to each person is between €12,500 and €15,000 so figures between €500 million and €1 billion are wild and do not stand up to scrutiny. I did not get the opportunity to divide €500 million by 15,000 but there is a huge difference between €500 million and €1 billion in respect of people who may be due a repayment. I am surprised the Minister of State has not distilled the figures into a more accurate number for presentation to the Dáil today.

It is unusual for legislation, even legislation pushed through the House on the back of a Supreme Court decision, not to be costed. I return to what Deputy McManus said earlier. If our parties made legislative proposals without costing them sneering Ministers on the other side would waste no time reminding us. They would ask us how much it would cost the State but the same geniuses, who have been sitting on this for the past three years, are bringing forward legislation they have taken two years to prepare and 12 months to bring before the House and cannot tell us how much it will cost. They say it will be somewhere between €500 million and €1 billion. If Deputy McManus or I brought forward a policy that we said would cost the State between €2 billion and €4 billion we would be laughed at. The Government does not know how much it will cost the taxpayer after spending a year and a half working it out. That is sloppy work from the Tánaiste and Minister for Health and Children, who prides herself on all things being transparent and on taxpayers getting the best deal. I am surprised she has not sat down and read the memoranda but has, instead, taken the figures as gospel without even picking up a calculator. She has more than enough advisers to do the work for her. I could have done the work for her myself if I was not present at the same joint committee meeting for four hours this morning.

Section 12 states the Revenue Commissioners may request, in writing, the scheme administrator to provide it with such information as will assist the commissioners in performing their functions relating to tax liabilities. Having regard to provisions made in the Bill, section 12 is a very general requirement. The number of people still alive and entitled to this repayment is quite small and they will not be assessed for means tests for social welfare schemes. This is something of a red herring because such people are patients in nursing homes and will not be applying for the home care package or anything else. All they expect to receive is the payment for illegal nursing home charges.

This section of the legislation serves to keep the Revenue Commissioners informed of money transferred to estates so the Revenue Commissioners can seek whatever inheritance taxes are due. Why is this not clearly stated in legislation? Some suggest we should use better and more simplified language and that certainly applies to this section. This could be clearly communicated by stating that information regarding moneys of those deceased will be sent to the Revenue Commissioners. There is no need to suggest that the Government is accountable to the people. A clause should be inserted on Committee Stage to make this clear.

This legislation also refers to patients' private property accounts. If this legislation is two years too late, considering patients' private property accounts is 20 years too late. The Minister of State referred to an oversight review and better management of patients' accounts. The reason we are concerned about this is that we are about to pay a maximum of €40 million into patients' accounts. Does the Minister of State with responsibility for elderly people in public institutions have any idea how much money is in patients' accounts?

Approximately €60 million.

What checks and balances exist to protect patients in the administration of this scheme? It is important that the Minister of State inform us of this.

Patients are a small, vulnerable group. If they wish to change the way the HSE manages their accounts they must make their decision known in writing. The elderly must take the initiative to protect their money and this obligation should be removed. The HSE should not await such written instruction and I am against the idea of elderly people being compelled to take action if they wish to protect their assets. This section should be re-examined.

The Minister for Justice, Equality and Law Reform likes to refer to Third Reich regimes and super-states and an element of this can be seen in this measure. We should allow elderly people to look after their money. The legislation refers to the obligation on the State to apply to the Circuit Court to spend €5,000 of patients' money. If patients wish to object to anything in this case they must make submissions in writing. This should also be examined.

The Minister of State referred to a scheme whereby those who do not wish to take back the illegal charges can pay the money to an account. This money will be dealt with in a manner similar to the dormant accounts and will be used for services for care of the elderly. I have two problems with the section, caused by the complacency of the Minister for Health and Children and the Minister of State at the Department of Health and Children, Deputy Seán Power. What is the structure of the account? What services will be provided from the account? Referring to ring-fencing services for the elderly is of no use. The Minister of State should state clearly what services will be provided.

The Minister, the Minister of State and backbenchers have stated they have met many people who wish to donate this money in recognition of the care and attention family members received. The Minister of State should know how much money is to be donated. Perhaps this is difficult as he must first tell people how much they are entitled to. Before people donate this money in recognition of the care of an elderly relative, they would like to know how the money will be spent. They might object to the money being allocated to a spending spree for Fianna Fáil before the next general election. They might not be keen on Fianna Fáil forming a Government for the next five years and might seek a more sensible destination for the money.

Deputy Twomey should not be giving them ideas.

The Government should make it quite clear how this money will be used. A number of areas seek long-term care facilities. The Minster of State should consider the case of the community hospital in Dingle, a nice area to visit in the summer. The long-stay care facility in that hospital takes up three floors, with elderly male patients on the ground floor and elderly female patients on the first floor. The lay-out of the top floor is exactly the same as it was during the famine when patients used to sleep on straw. The straw used to be kicked out of doors on the gable wall.

The Minister of State should demonstrate that such facilities are going to be changed with the money donated to this account. Stating what projects the money will be used for may encourage people to make these donations of the money repaid. At present people believe this money will return to the Government and be lost in Exchequer funding.

The Minister of State should ensure that mistakes made during the benchmarking process are not repeated in this case. All records of deciding how people received benchmarking awards were shredded and we will never know why some grades received 17% and others 5%. This information should be accurately gathered and stored carefully so we know how the repayment was calculated. Estates and elderly patients should also receive an explanation of how the refunds were calculated. This would be a sign of good governance and accountability in the administration of the scheme. It would be a first for the Department as the Government has removed much legislation that would make it accountable to the people.

A section of the legislation refers to appeals and this should be the only reason for a delay in payment. The appeals process should be managed by the public services. The Department of Social and Family Affairs deals with appeals on a regular basis, as does the HSE. I see no need for the appeals process to go to a private company. If these appeals go on for too long — we will wait until the Minister tells us about the new scheme set up to administer it — it could be a nice earner for some company for a long time into the future. Appeals processes could go on forever and this company would administer them indefinitely because, as I have already stated, there is no finite date to limit how long this company will operate. The appeals process should return to the public service and should not be part of the contract for the company that administers this. The company should make its decision and hand over all its records to the HSE, which can handle the appeals process using its expertise in social welfare. Otherwise this could continue ad infinitum at great cost to the taxpayer.

The Deputy has one minute remaining

I have not even started on some cases. If I have only one minute I will discuss the need for more protection for patients in the system. I hope this becomes a topic for discussion in the House. Too much of what we have seen happen in the last six months, and too many of the reports published by the Government, are on what has gone wrong with our health service. We need a patient safety authority. The Government must take responsibility for failing patients on this issue and we will need an independent authority to look after patients' interests, which the Minister has not achieved. I hope the Minister takes my views on board and I thank him.

This legislation is the latest element in a long and sorry saga on elderly people who have been in State care and have a right to be protected by the State. Regrettably what happened to them was anything but protection and it is important we examine the background on how we reached the point where we are considering this legislation. The original legislation set out in 1970 was not found to be defective. The interpretation of the legislation by the Department of Health and Children which was issued to the health boards was found to have been breaking the law. People with medical cards in public nursing homes, welfare homes or contract beds that subsequently became established in private nursing homes were illegally charged. Although it is clear the original regulations and directives sent out were not signed by a Minister, one Minister detected that a wrong had been done to vulnerable people. In 1987, for a short time, the late Mr. John Boland was Minister for Health. He found that this wrong was being done and confirmed that he would like to bring a proposal to Cabinet to resolve it. It was not completely unknown about. I suspect the fact he was a lawyer and come through the health board system assisted him in his detection. His decision is on the record and it is regrettable that when we came to investigate this matter we could not explore what happened because the incoming Government appointed a new Minister for Health, now the Ceann Comhairle.

The Ceann Comhairle should not be the subject of discussion in the House.

I am simply giving an historical statement.

The Deputy may speak on previous Ministers but not on the role of the Ceann Comhairle.

The former Minister for Health, who now occupies a different role, Dr. Rory O'Hanlon, felt unable to come before the committee and shed some light on why the decision to deal with this issue was abandoned by the new Cabinet and why the matter was not dealt with. Had it been addressed then it would have saved the State and the taxpayer a large amount of money. It is a pity that record was not provided so we could know what happened at the time.

The next time there was a possibility of ministerial action to deal with the issue was in 2003 when it was clarified by the over 70s scheme, which altered the nature of the GMS by adding a new element to it whereby over 70s, regardless of their income, would qualify for medical cards. The repercussions from that decision were such that alarm bells began to ring. To his credit the CEO of the then South Eastern Health Board took legal advice, which highlighted a serious problem that needed to be addressed, as already identified by Mr. Boland. The group CEO meeting of 16 December 2003 dealt with the issue. Although events before, during and after that meeting should have ensured ministerial engagement in action, that did not occur. As was normal departmental practice, briefing material was e-mailed to participants on the day before the meeting. This included legal advice furnished by the South Eastern Health Board. This information was received by the then Minister for Health and Children, Deputy Martin, his two Ministers of State and his special advisers. Of these five persons only one, Deputy Tim O'Malley, read the brief. He immediately understood that if the legal advice was correct it would give rise to significant legal, operational, financial and political implications. However, the PD Minister neglected to take any further steps on the matter. This is curious because although the PDs have always lectured us about value for money, in this instance it was not an issue. The then Minister of State at the Department of Health and Children, Deputy Callely, did not read the brief but attended the group CEO meeting, and appears to have understood the significance of the issue and volunteered to brief the Minister for Health and Children, which he did not do. He said he spoke to the Taoiseach but it is unclear whether he did. Two special advisors, paid for by taxpayers, attended the meeting but did not read the legal advice before or after the meeting. Although they knew the issue was important enough to require referral to the Attorney General, they say the penny did not drop. According to former Secretary General, Mr. Michael Kelly, he briefed the Minister on the margins of that meeting as the Minister arrived late and had missed the discussion on the issue. He also stated the Minister was subsequently briefed. Deputy Martin said he was not aware the issue had been on the agenda, that it had been discussed in his absence or that the meeting had decided to take action to resolve it. He said that subsequent to that meeting his Ministers of State, advisers or his Secretary General did not raise the matter with him again. It follows that he was unaware that a letter seeking the Attorney General's advice had been drafted and lay unsent in his Department for over a year.

The issue of unlawful charges may have been serious, but was about to become a crisis. While its origins may be explained by systemic corporate default, the issue had directly engaged the most senior minds in the Minister's Department, none of whom could have failed to share Deputy Tim O'Malley's analysis that it gave rise to significant legal, operational, financial and political implications. However, Deputy Martin maintained that he was not responsible. He said: "Ministers can only bear responsibility for issues in respect of which they are properly and adequately briefed". The Minister was briefed on the issue. The only reason he was unaware of it was that he had not read the brief. That admission on his part was compounded by the failure of his junior Ministers and advisors to raise the issue with him at a later stage. It is important to retrace that. There is a fundamental issue here regarding ministerial accountability. It does not bother the Government at all. It is as if ministerial responsibility belongs somewhere out in the ether. It bothers the Opposition. Fine Gael and Labour produced a joint document, The Buck Stops Here, which deals with a range of issues on better governance, accountability, managing the State's resources better, financial planning, accountability and the definition of roles. The relevant point is in the definition of the Secretary General's responsibilities and of ministerial responsibilities and accountability. I have no doubt the former Minister for Health and Children, Deputy Martin, was culpable and should have resigned. To this day, he has gotten away with abdicating his responsibilities in a way that is damaging and does nothing for the profession of politics.

On the original issue, the kernel of the problem is that the State broke the law, mugged the elderly and frail and, when this issue came into the open, thanks to Deputy Perry, who deserves recognition as a result, the Minister, Deputy Harney, introduced legislation so she could get away with it retrospectively and claim the charges were legal all along. Everybody knew the charges had not been legal all along and that a basic untruth was being promoted by the Minister and enshrined into law. At the time, I argued she was running a great risk and that the Bill would be found to be unconstitutional. Regardless of this, she proceeded with it against advice. We all know what happened; the Supreme Court found the Bill was unconstitutional.

The rights of the elderly and the frail had to be vindicated in the Supreme Court because the Government had failed to vindicate them. The original error was compounded into an injustice and this is part of a very sad and sorry saga. It is now almost 14 months since the Supreme Court rejected the Bill as unconstitutional. Since then, this issue has been raised many times by the Opposition. Initially, there was great optimism on the part of the Minister but it seems to have declined a little since she started out in her job. I remember the days when she was very gung-ho just about everything. She was to sort out the accident and emergency crisis, knock the consultants' heads together and do the devil and all. She was to provide for the repayment of nursing home charges last autumn and she then changed the date to Christmas. I was getting a wee bit embarrassed — I do not believe one can embarrass the Government — because people were asking me when provision would be made. Legislation has now been introduced but it is unnecessarily complicated because of the approach of the Government. It states who qualifies and who does not.

The legislation also outlines a very curious system of establishing a scheme administrator and a system of administration that does not stand up to scrutiny. There is a certain ideological stance, which I presume emanates from the Minister for Health and Children because she is always arguing for it, to the effect that private equals good and public equals bad. This kind of superficial, ideologically right-wing approach informs the legislation.

Why do we need private consultants to operate a repayment scheme? It is not so long since a major issue arose regarding equality in respect of payment for married women. The State fought it tooth and nail, even at EU level, but the EU court said the State should get its act together and repay the women because they were entitled to the money. Many kitchens in Ireland were refurbished as a result of those repayments and they brought a great deal of joy to women who benefited. It was not private consultants who operated the system. Proinsias De Rossa was the then Minister for Social Welfare.

Why in God's name do we need a separate system to process the claims? The NTMA was given the job to make payments in respect of claims. It is perfectly adequate and I do not hear anybody complaining about it. Even as late as this morning, the Department of Social and Family Affairs was praised for getting its act together regarding accountability. It gives out money all the time. Therefore, what is the rationale behind the proposed system, which will add to the cost? There is no guarantee that it will be better or more efficient. I do not understand the argument.

The Department has already engaged in a tendering process in which none of 11 applicants was found sufficiently suitable. Various companies and groups of general practitioners were invited to provide out-of-hours cover in north Dublin. Last week, the HSE collapsed the tendering process, which it chose to engage in without justification. The Minister has collapsed the tendering process and we are now talking about seven companies going forward. There is no justification for the establishment of the complicated and costly structure proposed given that we have the capacity to do the job within the Civil Service. We all know the Civil Service generally provides a good, professional service and we should trust it rather than continually choosing independent consultants.

Surely the waste of €150 million on the PPARS has taught us something. Bearing in mind the consultants who were doing the technological work and those overseeing the project, the project was a total mess. It was also a cash cow and the companies involved were in a position to milk the system for all it was worth until Professor Drumm shouted "Stop".

We know €50 million was spent on the service under discussion, as indicated in the media. I can think of many projects on which this could be spent if it were not spent on private consultants. The Comptroller and Auditor General has a role in this regard. He normally has the job of auditing after money has been spent. However, could he not make assessments before money is spent to determine whether the approach adopted is the most appropriate and gives taxpayers the best bang for their buck? This question has not been answered.

I allude to an important issue raised by our legal advisers. I have a horrible feeling in the pit of my stomach that this legislation will lead us into difficulties similar to those that arose in respect of the last Bill dealing with repayments. The advice states:

Just one point about this Bill, apart from its tortuous complexity, the utter inadequacy of the Explanatory Memorandum and the failure to articulate any view as to who should manage the repayment process.

I have already made a point on management but a particular point needs to be highlighted. In this regard, the advice also states:

Section 17 contains what seem to be bizarre provisions. They enable the "scheme administrator" (which may be the HSE itself or its appointee) to report his or her opinion that a repayment has been procured by fraud or misrepresentation. If the HSE is satisfied that this is the case, the sum then becomes automatically due for repayment to it and the HSE may recover the amount through court proceedings "as a simple contract debt".

In other words, it does not have to prove the fraud or misrepresentation to the satisfaction of the court. Its own opinion as to fraud makes the sum repayable and the court proceedings are reduced to the form of proceedings for the recovery of a contract debt.

I don't believe there is precedent in any statute for a procedure which, on its ordinary interpretation, seems intended to prevent a defendant from raising in court as a defence to those proceedings the argument that the HSE's opinion is misconceived and wrong.

I don't believe the section would withstand constitutional challenge. This matter needs to be investigated urgently. It would seem to be natural justice that if the HSE has decided that somebody has defrauded or made misrepresentations, they should have normal legal rights. In this case the only point at issue would be the HSE seeking payment of a simple contract debt. I am reminded of the debate we had on the original repayment scheme in December 2004, when the Tánaiste was so gung-ho about getting it all correct. At that stage I urged her to think again. I said:

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.

The principles of being constitutionally sound and protecting the vulnerable are as valid in the debate we are having today as they were in December 2004. If the Bill is enacted and the Act stands up, that will be fine. My job is to raise issues, and the last time I raised issues on this point, the constitutionality of the Bill was found to be unsound. I warn that the issue may need to be addressed to ensure that the Bill will not be struck down at some future date.

It struck a chord with me when Deputy Twomey mentioned application forms. Sometimes when we pass legislation we do not think of the practicalities. People find complex application forms so intimidating that they will not pursue their rights. At a recent clinic a young couple brought me a local authority housing application form, which is a standard form throughout the country. It took me approximately half an hour to complete the form with them. I was very surprised at the questions asked on the form. One part is a voluntary statement that included questions about the applicants' religion and sexual orientation. The form is from the Equality Authority and I presume the intentions are good, but something has gone mad in the system of bureaucracy if we are asking young couples about their sexual orientation when they seek a local authority house.

The length of the form over several pages makes it extremely intimidating for people. Some people do not apply as they may be illiterate and the idea of completing forms and dealing with bureaucracy is overwhelming for them. This is a very clear-cut case — the money was robbed and should be given back. The scheme exists and we do not need much detail in it. The CSO is objecting to delivering a piece of paper regarding the electoral register because it is too complicated and difficult. However, we seem to have no difficulty when it comes to Departments asking many questions to ascertain something very simple.

I am glad the Minister of State has referred to some of the issues relating to the care of the elderly. I am not very confident that we are making much progress. We have had a number of reports and a task force is sitting. It is time we had a clear strategy for care of the elderly. The numbers will double and we have an elderly population who are entitled to the best we can offer. Since November I have been seeking information on the number of community care beds. At this morning's marathon session of the Joint Committee on Health and Children I was able to discover approximately how many community care beds we have for the elderly — I still do not know the total amount. The HSE has a strategy to introduce 1,500 new beds up to 2010, but I am not sure that will be enough. If we are to move the elderly people who could be discharged from acute hospitals into the community, I suspect we will need more than 1,500 beds, but at least it represents progress.

Yesterday the Taoiseach told the House that the problems in accident and emergency departments are down to the 411 people inappropriately placed in acute hospital beds. I imagine that most of them are elderly people. While the Taoiseach uses this as his excuse, why has he not dealt with the problem? We need high-dependency beds, community beds and public beds in the community. The excessive reliance on private nursing homes will not resolve the issue of step-down facilities. I was very heartened to hear the HSE spokesperson stating that high-dependency beds should be provided by the public sector. However, we will need to see the financial implications. We will need to see if the Tánaiste will relent somewhat in her obsession about privatisation and give a few bob to provide public beds.

There is an issue about the time this will take. On the one hand we are saying that 1 January 2008 is the cut-off point. However, many people who were owed money have already passed away and many more will do so in the next while. It is important to have a speedy response, including setting target dates for them to get their money back. If there was real commitment in the Department or if there was not so much reliance on the private sector, it would probably be easier to manage. Deputy Twomey has raised a key issue, with which I agree.

It is extraordinary that we do not know how many people will be included in the net. There is a real problem with data collection, which showed up very starkly following the introduction of medical cards for the over 70s. I have absolute regard for officials in the Department of Health and Children. They did not initiate that scheme. It was a Charlie McCreevy politically motivated scheme into which the Department of Health and Children was bounced. It provided figures, which were so inaccurate that they represented only half of the true cost. It showed up the inadequacy of data collection in the health service. In this instance we again see the problems that arise because of poor data collection, which matter needs to be addressed.

We should know how much the repayment scheme will cost. The Tánaiste has mentioned a figure of €1 billion and a figure of €500 million has been floating about. We should also know how much money will be returned to the State, which is simply a mathematical matter.

How could we know that?

The Minister of State should give some indication as to how much he believes it will cost and how much will come back to the State, as we would then know the real cost. The Minister of State has had 13 months to work on this.

Does Deputy McManus know the six numbers for Saturday?

The Minister of State should do his sums. He is referring to the national lottery.

I know what he is talking about. I cannot believe my ears.

It is Government policy.

A Government should be able to manage the country's financial affairs. I am aware this Government does not understand this concept but this is the job of a Government. This is the function of the Estimates process and the budget. It concerns financial management and ensuring that money is wisely spent. The Labour Party and Fine Gael were forced to produce the policy document entitled The Buck Stops Here because the Government's record is so poor. The Opposition is telling the Government how to manage our financial affairs. I strongly recommend that the Minister of State considers reading our document before he gives facetious answers.

I want to ensure that elderly people or their estates receive the money in the best and quickest way possible. However, our job is to ensure that the taxpayer is not ripped off. It will be a difficult job because the one thing this Government excels in is ripping off the taxpayer.

Deputy Finian McGrath will share time with Deputies Connolly, Gormley and Ó Caoláin.

I thank the Ceann Comhairle for the opportunity to contribute to this very important debate. As Members of the Houses of the Oireachtas, we have a constitutional responsibility to support, respect and look after elderly people. It is a human rights, community, political and taxpayers' issue which is impossible to avoid. A society that does not look after or respect its elderly people is going nowhere. The debate must proceed from this point.

This debate concerns the most significant robbery in this State in the past 30 years. The decision by the Supreme Court to reject the Government's Health (Amendment) (No. 2) Bill 2004 confirmed the occurrence of the most significant theft of our time. I am speaking out on behalf of the elderly and highlighting the €3 billion taken from 300,000 older people over a period of 30 years. The implications of the Travers report were devastating and clearly revealed State-sanctioned elder abuse for three decades. It revealed a complete lack of political leadership by successive Governments and Ministers. It is not sufficient to blame the current Government as successive Governments must share the blame.

We must face the fact that care of the elderly is in crisis. The health system is sick and we must cure it. We need radical change and reforms. The Independent Members in this House will be a voice for people who are tired, disabled and incapacitated and help them to stake their rightful claim to better services. Independent Deputies are demanding a guarantee of dignity for elderly people through adequate income support, priority in health care, back-up support when they are ill or convalescing and information about entitlements as a right. These are our clear demands. We also demand the abolition of means testing and the implementation of a realistic level of financial support to ensure a better quality of life for carers and cared for family members. In recent years we have demanded the eradication of all health and social welfare waiting lists within a three-year period. We demand accountability from decision makers.

I am tired of listening to people who pass the elderly off, refuse to take them seriously or fail to treat them with respect. We must wake up to the fact that elderly people make a significant and positive contribution to the wider society. They have maturity and experience, qualities which cannot be bought by any society. I become angry when people mention bed blocking or tell older people to leave the workforce when they reach 65 or 70. If older people wish to remain in the workforce, they should have that right. They want to make a contribution to society. They have maturity and an experience of life which younger people lack and can make a significant contribution to society. I speak from personal experience as I have witnessed the work of many older people who are involved in social services or who work with people with disabilities, particularly intellectual disabilities.

This is the position held by the Independent Deputies. Approximately 444,000 people, or 11% of the population, are over 65 years of age. When one breaks down this figure, one discovers that approximately 266,000 people are over 70, one third of who live alone. It is not enough to state that the Government has responsibilities. We, as citizens, family members and neighbours, also have responsibilities. Sadly, despite our wealth and as a result of the fast pace of life, nobody seems to have any time for elderly people, which is to be regretted. This is something we had 20 or 30 years ago but which our so-called wealthy society has lost. There is nothing wrong with learning from experience and the past.

A further 13,000 elderly people who need high to maximum-dependency care continue to live at home on their own. We need to support these people, many of whose families make sacrifices to provide the best possible care for them. I demand that the Government immediately puts in place adequate resources and a comprehensive infrastructure for the care of elderly people. Elderly people and accident and emergency services will be top of the agenda in any programme put forward by the Independent Deputies in the future. I call on the Minister of State and the Government to support elderly people and put the necessary supports and service in place. Ireland is a wealthy country and it is our national and civic duty to support our elderly people. We must put an end to talking, roll up our sleeves and support the elderly.

I welcome the opportunity to discuss the Health (Repayment Scheme) Bill 2006. This Bill which provides for the repayment of nursing home charges illegally taken from old people who knew no better and were, effectively, sitting ducks, is long overdue. The Supreme Court judgment, which was universally hailed, was delivered on 16 February 2005. I understand that repayment in full with interest accrued will be made to up to 70,000 people who were illegally charged nursing home fees. This is regarded as radical compensation and is likely to cost in the region of €1 billion.

The HSE appears to have two ways of calculating interest. Strangely, both methods benefit the executive. I understand that the HSE links interest with the consumer price index so that whatever €1 would have bought a person six years ago is applicable today. However, when people who owe the HSE money have to repay it, they are charged compound interest rates, which is a vastly different arrangement. A particular group of people are caught in this trap. These are women who were forced to leave the health service as a result of the marriage bar in the mid-1970s. When these women try to buy back service for pension purposes, they are charged compound interest rates, which is grossly unfair. The fact that they were forced to leave the health service a certain number of years was itself unfair and they are now being doubly penalised. A different arrangement should be introduced. If the HSE uses this method of calculation for moneys owed, it should also use it for moneys owed to the elderly people who were illegally charged nursing home fees.

I understand that more than 40% of the people concerned will be paid back promptly. However, I wait to see what "promptly" means and what length of time it will take for payments to reach those from whom they were wrongly taken. The fact that it could take several years for 60% of the people concerned to receive their payments is particularly worrying. There are many sections within the Health Service Executive which have taken particular pains to identify people who were wrongly charged and a considerable number of people can be clearly identified at this time. As soon as this legislation passes through the House, we should make a special effort to ensure payments are made. This legislation took upwards of 14 months before it was put before the House. I do not know what difficulties the individuals who framed the legislation had. We have seen situations that might have suited the Government or the powers that be where legislation was rushed through the House in one day. If we were to deal appropriately with these matters that type of initiative might have been considered. Prior to Christmas I called for an ex gratia or goodwill payment to be made to these people, not necessarily the full amount, but at least sufficient to allow them to spend some money in their last few days. Ultimately, their needs are not great, but if the money was wrongly taken, it is appropriate that they, rather than their relatives, might have the opportunity to enjoy it. Such an ex gratia payment might be the only portion of the due rebates they will ever see. Many of those who had nursing home charges illegally levied for many years are in despair of ever living to collect one penny they are due. People do not spend all their lives in nursing homes. The average is about two years. There is therefore but a small window of opportunity in terms of putting the money into their hands.

I want to raise a number of other issues, but the onus is on the State to repay them in time. Pensioners are among the most vulnerable of citizens and their care is in somebody else's hands. We have messed matters up and there is an opportunity now to undo some of the damage. The main features of the Government's repayments scheme embodied in the Bill have been agreed as far back as May 2005. I ask that this initiative be put in place immediately.

It was interesting to listen to Professor Drumm this morning at the Joint Committee on Health and Children, who told us we had fewer elderly people in Ireland as compared to the United Kingdom. The reason was given to us a few months ago by Dr. Seán Barrett from Trinity College Dublin, who said Ireland had the benefit of what he called a "demographic bounce", in that many Irish citizens who would be old at this stage had emigrated in the past to the United Kingdom. The economy benefited as a result, because the elderly cost money. In general people spend more money on health in their final years than in the whole of their previous life. That has helped this country economically, and yet what we see from this debacle is that those who have contributed enormously to Irish society were exploited. The most vulnerable people in society were basically robbed by the State. The Minister for Health and Children tried to rectify and justify this, and she was rightly shot down by the Supreme Court.

Professor Drumm spoke about accountability this morning and the better management of the health service. Like everyone else, I should like to see better management, but it was not clear to me at the end of our questioning how that was going to come about. How are we going to achieve this?

If there are certain hospitals in the State that are not up to scratch, and he seemed to be indicating there are, how are these people going to be called to account? Are managers of hospitals going to be sacked? It is not likely and so there is a real problem at the heart of the health service. What we see here today emphasises that because it was very much a case of sticking our heads in the sand on this issue. One has just to examine the lack of action on the part of a number of Ministers. The previous Minister for Health and Children, Deputy Martin, apparently did not read his e-mails or his brief and yet is quite happy to continue in office. The former Minister of State, Deputy Callely, apparently read some sections of the reports.

He read too much.

Deputy Callely apparently spoke to the Taoiseach about them, as he sat on the steps in the Chamber. I took the trouble of going back and looking at the video and he did sit on those steps there and spoke to the Taoiseach, where the Minister of State, Deputy Power, is sitting now. They had a discussion of some description.

Big brother is watching.

I do not know what was said, but apparently the Taoiseach was informed about this.

It is amnesia.

The then Minister, Deputy Martin, was not informed and he got away scot free. We are now left with this mess and the Bill which has to be enacted. I want to go through some of the sections of the legislation because while it seems we have a framework, we could still be heading for the courts. We are looking at patients' private property accounts. In this context I want to mention something I have raised before. It seems the PD element of the Administration is pushing this, but there are problems on the horizon as regards the Government's approach. It is quite clear that while incomes in Dublin are 15% higher, homes there are also 15% higher. In other words, means testing care provision on the basis of a State-wide fixed figure would be triply unfair. Many of my constituents will be burdened with this in the future. Dublin families have paid a disproportionate amount of stamp duty revenue, suffered greater indebtedness and are now, in effect, being taxed on the basis of the paper value of a home that is entirely eroded because any replacement for it must ordinarily be found in the same market. That will come back to haunt certain people in the PD ranks of Government, who may know patients living in high-valuation properties, who will forfeit these assets, and their children will suffer as well.

As regards the appointment of an outside company I begin to wonder where is the Civil Service. We have a Civil Service to do a job and all we are getting is a continual outsourcing of business. We see from the public private partnerships in action throughout the State that they do not necessarily work, either for the benefit of the citizens or the State. At a recent meeting at Dublin City Council, the City Manager, Mr. John Fitzgerald, who has performed very well, was quite candid in stating he did not believe the private sector could perform any better than the Civil Service. Why do we continue to give out work to private bodies? It costs the taxpayer a great deal more in the long run. Taking just this element, already we are in difficulty. The Minister of State made it clear in his contribution that tenders were sought an initial procurement process was undertaken by the HSE in the latter half of 2005. There were 11 expressions of interest for the design and administration of the repayment scheme and three were short-listed.

Debate adjourned.
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