The 1954 institutional regulations were introduced on foot of the Health Act 1953 which provided for a charge for shelter and maintenance in a county home or similar institution. This did not distinguish between people who had full eligibility, those who had medical cards and those who did not. The Health Act 1970 introduced for the first time the notion, legally, of full and limited eligibility. Full eligibility applied to those with a medical card, limited eligibility applied to others. Ms Maud McInerney, a patient in a home at Crooksling and a ward of court, was charged for shelter and maintenance there. A case was taken on her behalf to the High Court which found that she was entitled to full eligibility under the 1970 Act. The case was taken to the High Court, which found that under the 1970 Act she was a person with full eligibility. She was receiving some medical treatment, so that this was not simply a place of shelter and maintenance, but one with nursing and medical staff. She therefore qualified as someone who should not be charged. That was upheld in a Supreme Court decision. On foot of that decision the Department introduced regulations basically saying that one can only charge those with limited eligibility, but at the same time a circular was issued advising health boards of a way of taking away eligibility by removing the medical card. At the time, the legal adviser to the Department felt that was not legally sound.
In 1978 the Eastern Health Board got an opinion from Ronan Keane SC and Thomas McCann SC. I have referred to that. They made it clear that one cannot change primary legislation by means of a regulation and that the Oireachtas had failed to introduce legislation to provide for these charges. On foot of the advice, the health board wrote to the Department of Health in July 1998 enclosing copies of the advice and so on. In its letter the board pointed to the negative financial implications of the situation arising from challenges being made against the board. It stated that while the legislation remained ambiguous, any assessment of charges against long-stay patients would remain open to challenge with inevitable loss of income. The board strongly advocated that "consideration be given to introducing amending legislation and at ending the present confused and ambiguous situation".
I will not go through all the advice. Mr. Travers draws attention to the fact that the advice both internally and externally was to the effect that there was no legal basis for doing what was being done. He says in the report that he found no substantial legal advice to the contrary. On the advice of the Department of Health, the cases taken by those who legally challenged the position on the long-stay charges throughout the years were not defended by the health boards.
On 5 February 1987 the then Minister was a caretaker Minister, John Boland. Labour had withdrawn from Government and John Boland was assigned the Department of Health. He took a memorandum to Government to provide for the introduction of new charges for in-patients and out-patients on foot of the budget. New health charters were being introduced and he used the occasion to bring in a provision regarding the long-stay charges. That Government left office and a new Government came into office in March.
On 27 March, the new Minister took the memorandum to Government. The Government decided to introduce the charges on foot of the budget and with regard to the long-stay charges the decision of the Government was to proceed "as was now relevant". All I can say is that it did not proceed and I do not know what "as was now relevant" means. The Travers reports refers to the "pinks". These are notes kept by the Secretary to the Government. They do not make up part of the formal decision of the Government but the Secretary takes notes of follow-up matter, or whatever. The "pinks" taken say that the Minister for Finance, the Minister for Health and the Taoiseach of the day were to meet regarding this matter.
That legislation came to the Dáil on 1 April, which was just a couple of days later. One must remember that these were dire economic times and clearly the Government wanted to introduce the new charges as quickly as possible. According to the Travers report, that is the only time the Cabinet ever considered the matter.
In 1994, in the health strategy published by the then Minister, the issue of long-stay charges is again referred to as one that needs to be legislated for, and legislation was promised. In 1989 the Commission on Health Funding referred to the legal issues involved. In a related issue in 2001, though not the same issue, the Ombudsman referred to the matter with regard to subventions in private institutions.
John Travers deals with the 2001 Act, when eligibility was extended to everyone aged 70 or over. Whatever confusion had arisen up to then, it was now clear that everyone of 70 or over, by virtue of their age, qualified as being fully eligible. Mr. Travers says the problem did not start with the Act or derive from it but again it was brought to the surface and should have forced a resolution.
The South-Eastern Health Board, having got advice from senior counsel in October 2002, regarding the eligibility issue on foot of the extension to those over 70, brought that to the attention of the Department in March 2003. The board tried to set up a meeting with the Department. That did not happen until the famous December meeting of which everyone is aware, when the matter was discussed. At that meeting it was agreed that legal advice would be sought. Very promptly after that meeting, on 27 January, officials in the Department prepared a file and a letter that was given to the Secretary General to be issued to the Attorney General in order to seek advice. That advice was not sought and there is confusion as to why it was not sought. Later in March 2004 a meeting was held between the management of the Department of Health and Children and the chief executive officers. The minutes refer to the fact that legal advice was being sought, which was not the case. In October 2004 another meeting of the CEOs of the health boards and the management of the Department referred to the fact that legal options were now being explored.
That is the basic summary. In October of this year, Deputy Kenny raised the matter on the Order of Business in the Dáil. At the time I asked for advice to be sought from the Attorney General. He gave the advice and told us we were acting ultra vires and must stop forthwith as we had no legal basis for what was being done. I sought a memorandum from the Department regarding the issue so that we could bring proposals to Government to correct the legal situation and to protect a principle most people supported.
There is no doubt that this principle had broad support. All the parties in office here for the past 50 years levelled these charges so there is no difficulty with the principle. Most fair-minded people believe that in return for shelter and accommodation one should make a contribution if one can afford to do so. People in the community and their own homes do that. The issue here was not one of principle but rather of giving legislative protection to a principle which was widely supported.
At the time, I asked the Secretary General of the Department to prepare a report for me on the matter and that report was brought to the Government. Regarding that matter, and speeches I made in the Dáil during the Second Stage debate — this is a matter to which John Travers draws attention — I had always maintained in December and November that this was all done in good faith, that it was legally defensible. As we know, that is not so. I became aware of that when some matters were discovered with regard to the Supreme Court case and in preparation for this report. Accordingly, the discussion at Government level and the subsequent Government decision was based on inaccurate and incomplete information. I very much regret that. I have already used the opportunity to correct, in the Dáil, the statement I made that it was done in good faith, because that is what I understood to be the case and that is what I was told. I will make further corrections tomorrow with regard to the information I put on the Dáil record which I published in December before I established the Travers inquiry.
We obviously have to learn serious lessons from all of this. It has serious implications for the Department which I am very proud to lead. In my short experience in the Department I have met some of the most professional, committed, hardworking civil servants, and I have been in the Dáil and Seanad since 1977. I have had a great deal of engagement with civil servants across the public administration over all those years. They are people who would have worked very long hours, for example in preparing the Health Service Executive legislation. Very long hours were worked on that matter by a terrific group of people who are totally committed to serving this State.
Some 300,000 people, or 315,818 if the Health Service Executive figure is verified, were wrongly charged. That should not have happened. We live by the law and must obey it. We have to put things on a sound legal footing. In December I asked the Assistant Secretary, Mr. Dermot Smith, who is here with me today, to do an audit across the Department of other areas where we levy charges on foot of regulations to ensure that this is being done on a sound legal basis.
Mr. Travers makes many recommendations regarding the Department, how it operates and how Ministers interact with civil servants. It is the job of the management team of the Department to manage the Department. I do not attend management meetings nor did I do so in the Department where I last was Minister. My role is a policy role rather than a management one. Mr. Travers makes the point that Ministers should not attend Department management meetings but rather attend policy meetings with the management group. I have always pursued that policy and will continue to do so.
Mr. Travers makes many other suggestions and I want to work with the officials to implement the necessary reforms. There is a new role for the Department in the context of the establishment of the Health Service Executive and a new unified system for the delivery of health services. It is a role encompassing policy, standards and legislation. The Department needs more resources to assist it with that new role, and I am determined to work with my officials to deliver that new mandate and lead the wonderful officials in the Department to implement the recommendations of this report so that something like this cannot and does not happen again.
The lessons to be learnt from this apply not only to the Department of Health and Children. They could be applied right across the public service. Mr. Travers's terms of reference were to examine the Department of Health and Children. He was not asked to consider how the matter operated at health board level. However, the health boards had the legal responsibility. I will be giving a copy of the report to the chairman of the Health Service Executive and asking him to note carefully its conclusions to ensure, in its legal responsibility, that it proceeds only on a sound basis.
I thank the Chairman for the opportunity presented this morning. I acknowledge the interest of members in this report. I would like them to be conscious of the fact that the Department of Health and Children has responsibility for approximately a quarter of the State's current budget — €12 billion this year. It deals with issues of life and death. Sometimes in that scenario, when people are extremely busy and under awful pressure, what is important is left aside in favour of the urgent. If there is any lesson that we all must learn from this report, it is that, notwithstanding the urgent things that must be done daily, the important things must be dealt with too. We cannot leave matters in the lap of the gods.
