JOINT COMMITTEE ON HEALTH AND CHILDREN debate -
Wednesday, 4 May 2005

Travers Report: Presentations.

Chairman

I welcome the officials from the Department of Health and Children, Mr. Dermot Smyth, assistant secretary, Mr. Charlie Hardy, Ms Teresa Hynes and Ms Roisin Heuston.

I draw the delegation's attention to the fact that while members of the committee have absolute privilege, the same does not apply to witnesses appearing before it. Members of the committee are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the House or an official by name or in such a way as to make him or her identifiable.

Mr. Dermot Smyth

The Chairman has introduced my colleagues. I will outline the responsibilities we have within the Department. I am the assistant secretary in charge of the finance and other units, including planning. Mr. Hardy is a principal officer in the planning unit. Ms Hynes is now working in strategic management, outside. Mr. Corcoran was working on the GMS at the time the legislation was produced. Ms Heuston, as a higher executive officer, was also involved in services for older people, while Mr. Corcoran was working on the GMS side. Mr. Hardy, Ms Hynes and I work in the planning area.

I will briefly cover the broader aspects of the Act. Then, of course, we are available to answer questions on any issues members of the committee may wish to raise. My understanding is that the committee wants to deal with issues to do with the introduction of the 2001 Act which, inter alia, provided for the granting of full eligibility to persons aged 70 and over. I will briefly outline the main elements of that, if the committee wishes.

In the 2001 budget, the Government announced its intention to extend eligibility for medical cards to all persons aged 70 and over, regardless of means, to come into effect on 1 July 2001. The background to this measure rested in the overall Government commitment to improve significantly eligibility for older people at that time. There were also other parts to the Bill, including the supply of drugs and medicines under the GMS and community drug schemes, while another section dealt with tobacco. A third section dealt with nursing home subventions and it amended sections 6 and 7 of the Nursing Homes Act 1990. It empowered the Minister to prescribe administrative and technical details to facilitate the operation of the subvention scheme, including items such as assessment of means and circumstances, assessment of the degree of dependency, review of subventions, decisions and so on. The amendment also gave the Minister power to make regulations governing standards requiring convalescent homes to have adequate medical, nursing and paramedical staff and facilities consistent with the patient profile of the home. Section 4 dealt with suicide prevention and provided for an annual report to be made to the Oireachtas.

The Bill was presented to the Seanad on 26 May 2000 and was signed into law on 5 June 2001. That is a broad overview of the sections in the Act. If the members wish to ask questions on it, we will do our best to answer them.

Deputy Twomey

I hoped Mr. Smyth could give us a better idea of things. I presume that he was informed around budget time that he was to draw up legislation giving medical services free to everyone over the age of 70. Was this discussed at Cabinet? How did it come about? Mr. Smyth was obviously not working on it before the budget in 2000 and it came out of the blue.

Mr. Smyth

It came out a few days before the budget was announced. We were informed by the Department of Finance about the decision and we were asked to cost it immediately for that Department. We did that as best we could, but we had very little time to do it. I am not privy to what happened at Cabinet.

Deputy Twomey

When Department officials draw up legislation like this, I presume they must look at existing legislation to make sure that it all correlates. The fundamental difference in the 2001 legislation was that it granted statutory eligibility to everyone over 70. Prior to that, it was at the discretion of the CEOs of the individual health boards. How did such a fundamental change come about?

Mr. Smyth

The decision was taken at Cabinet, as far as I am aware. We had no input into that decision. Before that, there had been initiatives to make more elderly people eligible for a full medical card. I presume the intention of the Government was to make the gesture of allowing full eligibility to everyone over 70 years of age. It was part of a broader arrangement trying to make it easier for people to gain entitlement to a medical card. However, the decision to extend it to everyone over 70 irrespective of means made the policy different from previous initiatives.

Deputy Twomey

Mr. Smyth and his officials looked at this legislation in early 2001, so they had a very short timeframe to make sure everything was done properly. Was he looking at the health strategy in the Department at the same time?

Mr. Smyth

Yes.

Deputy Twomey

There is a large section on the issue of eligibility, which was published as part of the health strategy. We know that subsequent to the health strategy, there were heads of Bills on issues surrounding eligibility which had been parked in 2002 and 2003. Did anything crop up in the Department between January and April 2001 before Committee Stage of this legislation was taken?

When he appeared before this committee, Mr. Travers seemed to indicate that the issue of the legality of nursing home charges was well known within the Department of Health and Children from around 2001. We know that two months after the health strategy was published in 2002, it had filtered out to the health boards that there was a problem. I know that drawing up legislation is very difficult and the officials must have got a lot of legal advice on this. Did Mr. Smyth feel that there was something wrong with regard to the legality of nursing home charges when this legislation was being drawn up? The officials must have had only six weeks to draw up the legislation, given the very short timeframe following the publication of the strategy.

Mr. Smyth

I am not sure of the exact date when it went to Government.

Mr. Charlie Hardy

I do not remember the exact date, but it would have gone reasonably quickly.

Deputy Twomey

It had to go quickly for it to get Cabinet approval and a First Stage reading in Dáil Éireann, as it had to be implemented on 1 July.

Mr. Smyth

There were different parts to the Act. We began working on the health strategy early in 2001. A group was set up to look at eligibility issues, which reported in June 2003. The report of the group dealt with the need to look for clarity on the issue of long-stay patients, among other things. That was added to the broader development of the health strategy, which had been published late in 2001. A decision had been taken that the detailed review, which was to follow on from the health strategy, would include the charging issue. The work to look at eligibility in a general sense began in 2002. As part of that review, work was done in the Department on the charging issue. We were looking for clarity on the charging issue. The various memoranda on that issue were described in that way.

Deputy Twomey

The memoranda came out in 2002.

Mr. Smyth

Yes.

Deputy Twomey

When Mr. Smyth and his officials were forming the legislation in early 2001, they were given specific instructions to make health care free to everyone over 70.

Mr. Smyth

That is correct.

Deputy Twomey

I know that the issue surrounding the nursing home subvention would have been on their mind following the report of the Ombudsman in January or February 2001. Were there any other issues? When we talk about eligibility issues, nursing home subvention would be the big one.

The next big question was whether charging people would have been constitutional, even though it was accepted practice. Another issue was whether there could be some sort of retrospective illegality to the charges. Did the issue raise its head at any stage? I know that the Department was stuck for time. How did the issue of eligibility arise, if it ever did? Subventions were included as one section in the legislation, so the Department must have been aware that something was wrong.

Mr. Smyth

We needed legal advice on whether the automatic entitlement of those over 70 to a medical card might be achieved through regulation or under powers of discretion by the CEO — effectively under the Health Act 1970. That had been the position since that time. We wondered whether we should do it under primary legislation. Those were the legal issues that we faced in trying to get this done within the time scale of which people had spoken. Those were the key issues concerning the extension of eligibility. There were others regarding negotiations with the medical organisations, as well as the costing issue. On the technical change in eligibility our concern was whether we should achieve it by regulation, by primary legislation or by extending the CEOs' powers of discretion. It seemed fairly obvious after discussion that it had to be done through primary legislation.

Deputy Twomey

Why?

Mr. Hardy

That seemed the most secure way to ensure that the Government's intentions were put in place effectively, which might not happen by regulation. It was better to do it by primary legislation.

Deputy Twomey

That is the confusing part for us. Was there a great sense in the Department that the issue of eligibility was rather confusing?

Mr. Smyth

Perhaps I might answer the question regarding reasons. The phrase "without undue hardship" is used in the Health Act 1970. If people were getting a medical card irrespective of means under regulations or even powers of discretion on the part of a CEO, one would be stretching the notion of "undue hardship". One could have people with significant income entitled to a medical card. How could one apply the "undue hardship" criterion to that? The reasoning was — correctly, I believe — that primary legislation was the way to go.

Deputy Twomey

All right.

Mr. Smyth

On the question of confusion surrounding eligibility, I personally accept that it existed and that the Health Act 1970 in some places provides that people "shall" be entitled and in other parts that they "may" be entitled to services. That is a problem. It was necessary to clarify the issue, given that it was a shift in the fundamental way in which we had approached the GMS up to then. Primary legislation was clearly the correct route.

Deputy Twomey

How much advice did the Department receive from the Attorney General on the issue over the four months? It had been under pressure. I do not want to know what the advice was but how much of it the Department received.

Mr. Smyth

I can speak on the eligibility side. We asked whether we should introduce primary legislation or regulations and asked the Attorney General to examine the issue of discretion too. That was the context in which we came to a decision on primary legislation.

Deputy McManus

That was clearly a political stunt, and it turned out to be extremely costly. Initially, the view was that it would not require primary legislation. When the Department considered the matter, it found that primary legislation was necessary after all. I remember the debate and the issue of undue hardship very well. Would it be fair to say that the Department or the Minister did not propose that change at any stage and that it was imposed on the Department?

Mr. Smyth

We were told that it had to be done.

Deputy McManus

Did the Department adduce any arguments regarding difficulties that might arise as a result? For example, people who were suffering undue hardship would not get medical cards, whereas the very wealthy aged over 70 would get them. Was that political argument ever made by the Department or the Minister?

Mr. Smyth

Various things might have been said regarding the consequences of such a decision. Mr. Eamon Corcoran was the principal officer on the GMS at the time. There were issues regarding costing and negotiations with the IMO and the Irish Pharmaceutical Union, something that would be inevitable. I am sure that the question of whether there were difficulties associated with such a decision that might force us into a particular negotiating stance was raised.

Deputy McManus

All right.

Mr. Smyth

Perhaps Mr. Corcoran will confirm that.

Mr. Eamon Corcoran

Yes.

Deputy McManus

I will not ask Mr. Smyth to repeat what he said, but I would love to hear it all the same. The Department was being asked to prepare legislation for a scheme that had not come from the Department or the Minister. There was no preparation for it. The Department was really starting to devise legislation from scratch without any preparation regarding long-term consequences. Is there not a procedure? The Department knew that it had to introduce portmanteau legislation with various provisions, but it knew that, on the central issue of the medical card scheme, it was fundamentally changing and altering its nature.

Quite apart from asking the Attorney General whether the Department would need to introduce primary legislation, which is perfectly reasonable, was there no consultation or questioning regarding any knock-on impact? I am becoming very aware of the fact that services were denied to people because of fuzziness surrounding their entitlements but, despite that, services were also being delivered to people. This was quite a significant change, not only regarding money but regarding the nature of the medical card itself.

Mr. Smyth

Yes.

Deputy McManus

Did the Department at no stage ask for legal advice on what the knock-on impact would be regarding people who had never qualified for a medical card in the past and not only had one for the first time but could not have it taken away? In the past, the CEO could determine that someone no longer qualified.

Mr. Hardy

The major concentration was on the operation of the scheme and how to put it into effect in the most efficient way. The debate was largely about the over-70s and primary legislation. There was a question of whether dependants would also be covered and how they might be taken into account if they were not to be granted eligibility along with those over 70. That was the major focus of efforts at the time. Of necessity it was done at quite a speed, and there were some complex issues involved in that consideration. That took up the major effort in analysis.

Deputy McManus

I appreciate that. It is understandable, and no one would criticise that. However, did no one — even in the Office of the Attorney General — make the point that the changes might have implications for public policy? Did that never arise at all?

Mr. Hardy

At that point, the question was not considered in any depth.

Deputy McManus

Was it considered at all?

Mr. Hardy

I do not believe that it was raised in the analysis leading up to that legislation. As I say, the major concentration was on the business of putting the legislation on the correct footing and ensuring that the right decisions were being made. The background was the overall review of eligibility planned regarding the strategy. That was also always present.

Deputy McManus

Would the Office of the Attorney General have been asked to give a legal opinion on the legislation that the Department was preparing?

Mr. Hardy

The Office of the Attorney General was asked for a specific opinion on the points that we have been discussing regarding primary legislation. It answered those points.

Deputy McManus

However, it would naturally enough have examined the issue in toto.

Mr. Smyth

: No.

Deputy McManus

Did the Department receive a "yes" or "no" answer?

Mr. Smyth

It was asked specifically whether regulation, discretion or primary legislation was the correct avenue to take. It seemed clear that primary legislation was the way forward. In any event, as Mr. Hardy has stated, there also were questions relating to dependants. This was done as part of the preparation of a Bill that was introducing a number of other sections. In parallel to that, as we have stated, was the work that had already started on the health strategy and eligibility.

Deputy McManus

Did the Bill go back to the Attorney General when the work was done?

Mr. Smyth

The heads of a Bill are sent to the Cabinet. It agrees to the Bill being drafted and it is then sent for drafting to a parliamentary draftsman and is taken on from there.

Deputy McManus

Does the Attorney General have an input at that stage?

Mr. Smyth

The Attorney General is present at Cabinet meetings where Bills are decided. The parliamentary draftsman then works out the final draft of the Bill.

Deputy McManus

All right.

Deputy Gormley

I will go back to the Ombudsman's report. Was it discussed at length in the Department at the time?

Mr. Smyth

It was, because we received a legal opinion on the Ombudsman's report, particularly on the issue of entitlement in the health services and there was much discussion about that issue in the Department at the time. The Ombudsman had raised fundamental issues about entitlement, that is to say, access to services, both in private nursing homes and to public beds. However, that legal advice centred on entitlement and did not divert Ms Heuston from that issue. Much attention was given to this issue by the Department at the time.

Deputy Gormley

When Ms Deirdre Gillane appeared before the joint committee, she stated that when the Ombudsman's report was discussed, the concerns about illegality were found to be unwarranted. Was that the case?

Ms Roisin Heuston

The Ombudsman certainly raised the issue of eligibility versus entitlement. That was addressed in legal advice we received from the Office of the Attorney General, which pointed out that they were two clear, distinct and separate issues. One may be eligible for services but that does not automatically convey an entitlement.

Deputy Gormley

Was that the legal advice from the Office of the Attorney General?

Ms Heuston

Yes.

Deputy Gormley

Did it centre on that?

Ms Heuston

Yes.

Deputy Gormley

Did it deal with the charges issue?

Ms Heuston

No. There are two separate issues. The Ombudsman's report was concerned with private nursing home charges and the legislation pertaining to them. The only time it veered in any way towards the public service was in its views on eligibility versus entitlement. However, the report itself was an examination of charges and other issues concerning private nursing homes.

Mr. Smyth

The entitlement issue concerning public beds only arose as part of a broader view taken by the Ombudsman about entitlement to services which covered both public and private beds.

Deputy Devins

I welcome the deputation. It is nice to have such a broad range of expertise available to the joint committee as it goes about its work. I will put one or two general questions to the officials. I am interested in how a Department works. When a major issue arises in a Department, be it the Department of Health and Children or any other, what is the actual format of its response? Are committees set up, do officials meet at a certain level and how is the issue driven forward? When is it brought to the Minister's attention?

Mr. Smyth

It depends on the particular issue. However, if a generic issue arises which cuts across different sections of the Department, different sections work on it. Assuming it is politically controversial, the final outcome is usually the preparation of an internal report for the Minister of the day. In our Department's case, the report might be prepared with the assistance of the health boards as they then were or with the HSE now. If the issue can be placed in a broader strategic arena, it is resolved within the development of, for example, the health strategy.

An enormous number of issues were decided upon as part of the development of the health strategy. The method used was to have different committees examining different aspects of the system. For example, I was the chairman of a group that examined funding mechanisms. In that case, reports were drawn up and used in the production of the health strategy, which was finally published five or six months after the initial work had been done on various issues. The strategy is then presented to the Minister of the day and something similar is forwarded to the Cabinet to secure permission for publication. It very much depends on the issue. However, on an issue so fundamental as eligibility and entitlement, one would envisage a wide range of consultations, both internally and externally, with all the stakeholders involved. As to the Deputy's point, yes, the issues raised about the health strategy by the different groups were then laid out for political decision.

Deputy Devins

In general terms, if an incident as serious as a file going missing in a Department takes place, what is the normal procedure? The joint committee heard from the former Secretary General that unfortunately this occurred in the Department of Health and Children. I am sure files can go missing in all Departments. In Mr. Smyth's experience, what happens when a file goes missing?

Mr. Smyth

It depends to a degree on the recipient and on the issue. If the issue is straightforward and can be settled quickly, it should be followed up. If the issue is complex, there is no question but that it should also be followed up during the year as quickly as possible. In any case, files should not be allowed to lie anywhere in any room.

Deputy Devins

Is a hard copy always available?

Mr. Smyth

Yes.

Deputy Devins

If a file, letter or memorandum goes missing, one can always get a copy from its original source.

Mr. Smyth

Yes. If one writes to another Department or any other agency like the Office of the Attorney General or whatever it might be, or if one writes a letter on the Minister's behalf, a copy is always kept.

Deputy Devins

I will now ask some specific questions. I note from the Travers report that Mr. Smyth and Mr. Hardy were present at various MAC CEO meetings outlined in the report. Did they attend these meetings on a regular basis or did it depend on the agenda?

Mr. Smyth

I was present at most of them. We still carry on that process with the HSE as it is something that must be done.

Deputy Devins

One of the issues that obviously——

Mr. Hardy

I was only present at those meetings where a specific issue was due to arise and where I was asked to attend. I was not normally present at them.

Deputy Devins

Can Mr. Hardy specifically remember why he was present at the meeting of December 2003?

Mr. Hardy

I was present at that meeting for reasons concerning service planning and the charges issue. I was only present for part of the meeting where those particular issues were mentioned.

Deputy Devins

Did Mr. Hardy have an involvement in the long-stay service charges issue prior to that meeting?

Mr. Hardy

Yes, I did.

Deputy Devins

How long had Mr. Hardy been involved with the long-stay charges issue? Was he familiar with the legal opinion from the South Eastern Health Board that reached the Department in March 2003?

Mr. Hardy

Yes, I saw that opinion around the time it was received by the Department.

Deputy Devins

What happened? Were there meetings about the opinion between March and December 2003?

Mr. Hardy

Yes, there were meetings in the Department.

Deputy Devins

Was a memorandum prepared about it at any stage?

Mr. Hardy

Papers, which took the memorandum into account, were prepared at that time.

Deputy Devins

Was the Minister of the day ever informed about that?

Mr. Hardy

I do not think those papers reached the Minister of the day.

Deputy Devins

Was there a realisation in the Department of Health and Children that this was a fairly major issue?

Mr. Hardy

There was a realisation that it was a significant issue. At the same time, the CEOs of the health boards were considering their views on the advice at that time.

Deputy Devins

Am I correct in assuming that, from the time the South Eastern Health Board opinion reached it, meetings were being held in the Department in respect of this issue, that there was a realisation it was quite a serious matter but that the Minister was not informed up until the meeting in December?

Mr. Hardy

Meetings were being held in the Department in respect of that issue. A group was formed to address the issue around the time the legal advice was received.

Deputy Devins

Would the Secretary General have been informed and been aware that this was going on at the same time or did it happen without his knowledge?

Mr. Smyth

The group was established in the Department to follow through on what the health strategy said in respect of eligibility. A decision was made that charges for long-stay care would be part of the work of that group, which was in operation through 2002 and 2003. The charging issue was part of the work of that group charged with examining the subject of eligibility, which covered the entire range of issues in a very complex area.

The CEOs had a number of meetings during 2003 regarding the South Eastern Health Board opinion. In his testimony, Michael Kelly referred to the fact that the CEOs wrote to us in August-September 2003 saying that they had not completed their examination. The famous meeting was held in the Gresham Hotel in the following December. I think the CEOs wanted to have a meeting about the matter sometime in the autumn but this did not proceed. It is fair to say that this was not regarded as a trivial issue, rather it was seen as part of something that had to be addressed in terms of eligibility in general. It was decided that HSE legislation would have to be drafted immediately so the HSE could be put into effect. That issue took precedence. I think Michael Kelly already mentioned this. The charging issue was on the agenda of the meeting that was held in December and, as members of the committee are aware, events took their course after that.

Deputy Devins

In general terms, a decision was reached at the meeting in December to seek further legal advice. The issue then appears to have fallen off the radar.

Mr. Smyth

Michael Kelly accepts that during 2004, which was an extremely difficult year for the Department because of a range of issues — such as the Presidency — that had to be addressed, the main objective was to get the HSE up and running. This required the transfer of 25% of total Government spending from the health boards to the HSE. This task took up considerable attention so the issue of long-stay charges did fall off the radar. It should not have been forgotten but it was.

Deputy Devins

I accept Mr. Smyth's point. He said earlier that when an issue arises that is potentially very serious, a group will monitor it and meet to discuss it. Was there any group in the Department that specifically looked after the long-stay charges issue?

Mr. Smyth

A group specifically monitored this issue.

Deputy Devins

Did this group meet in 2004?

Mr. Smyth

There was a group that was representative of the planning unit and services for older people that met in 2002 and 2003. We circulated whatever memoranda we had to other sections in the Department dealing with matters such as disability asking them for their views. We did that as part of broader work on eligibility that was being done in the Department. There was a specific unit dealing with eligibility and there was an ad hoc group made up of the two units, which were also dealing with other parts of the Department, like psychiatric services, that had a role in the process because of the charging being applied to psychiatric patients. We worked up a memorandum on the charging issue and a solution to the problem of charges in terms of legislation. It is difficult to take one particular aspect of eligibility out of the jigsaw and that was why the issue of long-stay charges was seen as part of a broader remit of addressing eligibility once and for all. This process has now been renewed in the Department with the establishment of the HSE but legislation on the HSE took precedence from the autumn of 2003 onwards.

Deputy Devins

We all recognise that the Department was, for a variety of reasons, under severe pressure during that time. To return to the period from March to December 2003 when the group was meeting and was aware that there was a potential problem with legal opinion relating to long-stay charges, was a memorandum or briefing note ever prepared for the Minister?

Mr. Smyth

No. The work that was being done as part of the addressing of the eligibility issue was to culminate in specific recommendations. At that point, the papers would have been forwarded to the Minister and the Government. In retrospect, we know the consequences of doing that.

Deputy F. O’Malley

Mr. Smyth stated that the Department was concerned about dealing with the issue of eligibility in a holistic way across all services and not just those relating to people over 70. Is it fair to say that the Department knew there was a problem regarding the legality of charging, that it felt the matter would be dealt with in the context of eligibility and that new legislation would be drafted for this purpose?

Mr. Smyth

The Department wished to clarify the issue of eligibility once and for all because a fundamental change had taken place in 2001 and had altered the Health Act 1970. We were also concerned with examining what would be the consequences of that change. There were also other linkages.

The issue of eligibility is something of a patchwork. One is dealing with limited eligibility for certain services and full eligibility for other services. Certain sections of the Health Act 1970 state that some services may be made available while others indicate that they shall be made available. The question is what does the word "shall" mean in that context? Does it provide an entitlement or does it simply grant eligibility? Does access, therefore, depend on resources being made available? The issue of eligibility is extremely complex and the Department was aware of that. It was seeking clarity.

Deputy F. O’Malley

I asked the question because I heard Mr. Smyth say that earlier and I was going to ask him about it. In many ways, the 2001 legislation brought a certain clarity to a situation that the now irrelevant 1970 legislation confused. I am not a lawyer and am unfamiliar with the definitions but it would appear that if one has an entitlement, one is eligible. However, the confusion no longer exists and Mr. Smyth mentioned he was looking for clarity. Learning how the legislation was passed was insightful as I thought all legislation must be passed by the Attorney General. Such does not appear to be the case in the drafting and preparation of this legislation.

Mr. Smyth

No, it is the case. All Bills go to the Cabinet and the Attorney General will attend those sessions. We discuss these with the Attorney General's office when we are given permission.

Deputy F. O’Malley

So one would.

Mr. Smyth

The draftsman does this. Often before a Bill goes to the Cabinet, there are discussions with the Attorney General's office.

Deputy F. O’Malley

Any legislation that is drafted comes from the Attorney General?

Mr. Smyth

Yes, it must go through this process.

Deputy F. O’Malley

The legislation will have the imprimatur of the Attorney General?

Mr. Smyth

Yes.

Deputy F. O’Malley

I was a bit confused because it seemed this did not happen.

Mr. Smyth

No, it did happen.

Deputy F. O’Malley

Returning to the topic of the 2001 legislation, I will continue with my point that it brought clarity to the situation. Does Mr. Smyth accept this?

Mr. Smyth

In terms of charging, there have been previous reports concerning the long-stay issue. The 1994 health strategy also mentioned it. When we examined the implications of the extension of eligibility to over 70s, we felt we should act to have matters clarified.

Deputy F. O’Malley

In what way was this clarity sought? Was advice requested from the Attorney General's office?

Mr. Smyth

As part of the role coming from the health strategy, it was decided there must be clarity surrounding eligibility for health services in general. At present, the situation is a patchwork. This issue was seen as a part of that situation. The matter was not put to one side. Work was done in writing the heads of a Bill.

Deputy F. O’Malley

In what year?

Mr. Smyth

We would have been writing the heads in 2002 and working on them again in 2003 with the legislation unit, which was given the task of bringing finality to the eligibility issue on foot of what has occurred since 1970. Of necessity, the CEOs of the the health boards also needed to address this problem. They gave their views in 2001 and considered the issue on their own agendas throughout 2003. That culminated in the meeting at the Gresham Hotel in December 2003. A decision was made shortly after that, having held discussions with the CEO group, the Department should take the matter out of the wider eligibility ambit and go to the Attorney General immediately.

Deputy F. O’Malley

I accept what has been said. Other witnesses have highlighted that 2004 was a difficult and busy year. Was Mr. Smyth not concerned in his role as a financial planner that no advice from the Attorney General was received quickly?

Mr. Smyth

No. The letter did not go to the Attorney General.

Deputy F. O’Malley

I know but everyone assumed it had. The advisers who addressed the committee last week indicated they would have dealt with the matter when the Attorney General's definitive advice was given. I assume Mr. Smyth awaited the same advice because everyone expected the letter had been sent to the Attorney General and the matter would be reactivated upon receipt of the response. A month later, was Mr. Smyth not inclined to think about why he had not heard anything back?

Mr. Smyth

We would all acknowledge this. Even given the pressures on us in 2004, we should have followed up on the matter.

Deputy F. O’Malley

I have two more questions. The first is about the issue of progressing the matter. The purpose of this report is to examine the future administrative and legal implications of procedures. Is Mr. Smyth concerned that other charges being levied at present may be illegal?

Mr. Smyth

A group has been established to carry out a review and we are gaining clarity on a range of issues other than charging, including fundamental issues surrounding eligibility and entitlement. We are bringing the matter to a head quickly. Work is ongoing and any loose ends will be addressed.

Deputy F. O’Malley

From a strategic point of view, the question of eligibility is a "patchwork" that must be streamlined, as Mr. Smyth described it.

Mr. Smyth

This is my personal view.

Deputy F. O’Malley

Mr. Smyth has been working in the area for a long time and I respect his opinion. Is this something he is making a suggestion about?

Mr. Smyth

I cannot say too much about it because we are working through an internal process. My personal view is that this issue is not simply about charging but about many other matters. We must have clarity on entitlement and eligibility in general.

Deputy F. O’Malley

We have heard before that officials in the Department are often reluctant to bring an issue to a Minister's attention due to its politically sensitive nature. Is this still the case? Is a Department not impervious to political sensitivities? A Minister can make a judgment call but it is the officials' duty to present facts.

Mr. Smyth

Absolutely. As a member of the financial unit for many years, I have often brought difficult issues to the attention of Ministers. It is the duty of officials to bring these issues to the Minister of the day. Mr. Travers has said that we may use a process in the future that is more transparent, so to speak, which is a fair comment. On this matter, one of the difficulties is that it had been placed in the broader context of eligibility and was seen as part of a process, which would have led to a submission on clarifying the issue to the then Minister. Leaving aside the South Eastern Health Board's opinion, as we had been working on this assumption throughout 2002, once the discussion was held with the CEOs, the obvious must have been done. The contents of the file needed to be dealt with. Civil servants are not slow in getting their work done. They must speak with the Minister as it will hit the headlines if they do not.

Deputy F. O’Malley

My final question concerns the numbers in the General Medical Service, GMS. I accept that the preparation of the legislation took place in a short timeframe but it is unfortunate that the accuracy of the figures and assumptions were wide of the mark. Have there been improvements in this respect? The information we rely on must be accurate.

Mr. Smyth

Yes.

Mr. Corcoran

As the Deputy said, the figures were wrong. We must bear in mind that medical cards were issued at health board level at the time. The Department was not involved in the process and relied on the information given to it by health boards. The Department was made aware on the Friday before the 2000 budget of the decision to extend full eligibility for medical cards to over 70s and was constrained to operate on the basis of the information immediately available. The process was such that we had information from the Central Statistics Office on the population cohort of over 70s, we had information from the health boards on over 70s with medical cards and, by subtraction, one had a figure of 39,000 over 70s who did not have medical cards. That was the basis on which the costings were generated. The other element was the agreed capitation fee.

Deputy F. O’Malley

Has the system been improved so that such inaccuracy could not happen again?

Mr. Corcoran

Yes. Following the emergence of the problem, there was a thorough check of existing medical cards and what we call "ghosts" were eliminated.

Deputy F. O’Malley

Would Mr. Corcoran be fairly certain that there is now an updated and accurate set of statistics?

Mr. Corcoran

Yes, I would be confident. We cannot say with absolute certainty but if there is a problem, it is minor.

Deputy Devins

As the health boards were in charge of the medical cards, did they know how many had been issued?

Mr. Corcoran

Yes.

Deputy Devins

When the Department rang the health boards, were they in a position to indicate the number of people over 70 in their areas?

Mr. Corcoran

Yes.

Deputy Devins

Was it not a matter of subtracting the number of existing medical cards from the population over 70? This would provide the figure for those entitled to new medical cards.

Mr. Corcoran

Yes, essentially that was the process. It depended on two key items of information. The first of these related to the number of people in the general population over the age of 70. We had very accurate information on that from the Central Statistics Office. We had another figure from the health boards which was incorrect. As a result, there was an underestimation of the population. There were "ghosts" in the system, which effectively masked other people——

Deputy Devins

That is what I do not understand. I understand Mr. Corcoran's use of the term "ghosts" but those to whom he refers would have inflated the number of medical cards in circulation. As it was, the figure was grossly underestimated. How does Mr. Corcoran explain that?

Mr. Corcoran

If one estimates that there are 250,000 people over 70 in the population and if 200,000 of them possess medical cards, then 50,000 do not have them. If the figure of 200,000 is incorrect, there will be an overestimation in the number of existing medical cards.

Deputy Devins

That is what I cannot understand. Using Mr. Corcoran's figures as an example, let us suppose the population of those over 70 in December 2001 was 250,000 and that, according to the health boards, 200,000 medical cards were in existence. A certain percentage of that 200,000 was comprised of ghosts, namely, people who had died or whatever. Surely the number that has been miscalculated is the number of ghosts subtracted from 250,000. That should result in an overestimation rather than an underestimation. The figure was miscalculated by 50%.

Mr. Corcoran

It was more than that. I will provide an example. If there are 250,000 in the overall population who are over 70 and, according to the information available, 200,000 of them already possess medical cards, this means that 50,000 do not have medical cards. If it transpires that the correct figure for those in possession of medical cards is 150,000 and not 200,000, the difference between the two figures goes out of the system. Those cards are at the lower capitation rate and the 50,000 people believed to already be in the system come in at the higher over 70s rate.

Deputy Devins

I understand that. If there were ghosts, it means that medical cards were issued to people who no longer existed. They should not, therefore, have not come into the calculation of the new figure.

Mr. Corcoran

They were dead but capitation was being paid.

Deputy F. O’Malley

This was wrongly paid.

Deputy Devins

It should reduce the total cost.

Mr. Corcoran

No because the 50,000 people in respect of whom capitation was being paid were in payment at the standard rate. The over 70s rate was a significant multiple of that.

Deputy Devins

I understand that but let us consider the figures. If, for example, 10,000 of the 200,000 people to whom Mr. Corcoran referred were ghosts, this means that 10,000 cards had been issued to people who did not exist.

Mr. Corcoran

Yes.

Deputy Devins

They should not, therefore, have been classed as part of the overall population.

Mr. Corcoran

They were not part of the overall cohort in the general population. It is quite a complex calculation.

Deputy Neville

They are either there or they are not.

Mr. Corcoran

I propose that I prepare for members a short paper setting out the basis of the calculation.

Deputy Devins

We would appreciate that.

Chairman

Perhaps Mr. Corcoran could provide the paper as soon as possible because we are also awaiting other documents from the Department.

Senator Feeney

I welcome the delegation. It is very helpful to hear what its members have to say. I remind Mr. Hardy of the meeting on 16 December 2003 in the Gresham Hotel. He was responsible for service charges and long-stay charges. When did Mr. Hardy hold that post and when did he leave it? He is now in the planning section. Perhaps that is the same section as before, planning for services for the elderly.

Mr. Hardy

No, it is not planning for services for the elderly. It is the planning and evaluation unit of the Department of Health and Children.

Senator Feeney

What was Mr. Hardy's brief in December 2003?

Mr. Hardy

I was in the same unit at the time.

Senator Feeney

Did Mr. Hardy have special responsibilities? He mentioned to one of my colleagues that he was at the meeting because he had responsibility for the long-stay charges.

Mr. Hardy

That is correct.

Senator Feeney

Was Mr. Hardy only present at the meeting for the period when that issue was discussed?

Mr. Hardy

I was present for the discussion on that agenda item and also for the discussion on service planning, for which I also had responsibility.

Senator Feeney

Was the outcome of the discussion of the long-stay charges that the advice of the Attorney General would be sought?

Mr. Hardy

Yes, although that was not precisely what happened. That was the final outcome. The first action to be taken was for a group to be set up. The Secretary General asked that a group be set up to prepare the papers for the Attorney General. The intention was that legal advice would be sought from the Attorney General when the group finished its work.

Senator Feeney

When was the group set up?

Mr. Hardy

The group was set up immediately after the meeting. It produced the papers that were sent to the Secretary General on 27 January 2004.

Senator Feeney

The group was set up and then the matter was to go to the Attorney General in February.

Mr. Hardy

No, it was to go to the Attorney General as soon as the papers were signed by the Secretary General.

Senator Feeney

When did that happen?

Mr. Hardy

Those papers were sent down to the Secretary General on 27 January 2004.

Senator Feeney

Did Mr. Hardy receive a copy of the papers?

Mr. Hardy

A copy was maintained on the file.

Senator Feeney

Would Mr. Hardy have been advised when the letter of 27 January had been sent? Would Mr. Hardy have received a copy?

Mr. Hardy

The file was in my unit. From looking at the file I knew the papers had gone down on 27 January.

Senator Feeney

What happened after 27 January?

Mr. Hardy

We were waiting for advice to come back. We understood the papers had gone to the Minister's office at that stage.

Senator Feeney

Was there a discussion about it after 27 January?

Mr. Hardy

A discussion was——

Senator Feeney

What happened? How long would Mr. Hardy normally wait for advice to come back?

Mr. Hardy

It is a complex issue. We were not certain how soon advice would come back.

Senator Feeney

When did you realise that advice was not coming back?

Mr. Hardy

We knew that advice had not come back.

Senator Feeney

When?

Mr. Hardy

We knew in February after the papers had gone down that advice had not come back.

Senator Feeney

Mr. Hardy knew in February 2004.

Mr. Hardy

The papers went down and the idea was that they would be sent to the Attorney General for advice which would come back.

Senator Feeney

My question was when Mr. Hardy realised that advice was not coming back.

Mr. Hardy

We did not get any advice back. It was not a matter of realising that advice was not coming back.

Senator Feeney

Let me put it a different way. Mr. Hardy was at the meeting in his capacity as having responsibility for the charging of the over-70s.

Mr. Hardy

Yes.

Senator Feeney

Mr. Hardy came away from the meeting knowing that a group was to be set up and on 27 January a letter was drafted to the Attorney General.

Mr. Hardy

That is correct.

Senator Feeney

What did Mr. Hardy do in February, March, April and May? Did he ask anyone where was the advice? Was it discussed at all?

Mr. Hardy

Our understanding at that time was that the advice was in the Minister's office. I apologise — our understanding was that the letter requesting the advice and the papers were in the Minister's office.

Senator Feeney

Can I ask Mr. Hardy as a civil servant how long do such items stay in the Minister's office?

Mr. Hardy

It depends on the issue and the situation. It normally would not stay long in the Minister's office.

Senator Feeney

Mr. Hardy stated earlier that the Minister was not briefed on this. Did Mr. Hardy speak with the Minister, the Ministers of State or ministerial advisers on this matter once the letter went?

Mr. Hardy

Once that letter went in 2004?

Senator Feeney

Yes.

Mr. Hardy

Once the letter was submitted in 2004 I did not speak with the Minister or the Minister's advisers.

Senator Feeney

Did you speak with the Ministers of State?

Mr. Hardy

No.

Senator Feeney

Did it strike Mr. Hardy that time was elapsing and nothing was happening? He stated that he realised it was an important issue.

Mr. Hardy

Yes.

Senator Feeney

Nothing was happening.

Mr. Hardy

I realised it was an important issue.

Senator Feeney

And Mr. Hardy knew the implications.

Mr. Hardy

I knew what the possible implications were as we were going to the Attorney General to seek his advice on the situation. We understood the letter was in the Minister's office at that time. I did not feel I was in a position to interfere with that process. As far as we were concerned, the Minister had the letter in his office.

Senator Feeney

I find it hard to get my head around this. As a Senator I write to different Departments and I pull the file every three or four weeks and if there is nothing back from the Department I write again to seek the information. Are there mechanisms like that in the Department of Health and Children or in the Civil Service in general?

Mr. Hardy

I am sure there are mechanisms for reminders in some situations.

Senator Feeney

Can I ask Mr. Hardy if there were mechanisms in his unit so that if information sought on 27 January still had not been received by the following December someone would inquire if the Attorney General had taken annual leave or gone? Nothing had come back and he knew the implications this would have.

Mr. Hardy

I knew from the minutes of the MAC meeting in March that the issue was raised. There was confusion arising from those minutes as they stated advice had been sought. It was made clear to me that the view was that the letter was still in the Minister's office at that stage. I knew it had been raised.

Senator Feeney

That was March. The minutes for 18 October read that legal opinion is still being reviewed, so some opinion was in. Was that the South Eastern Health Board and the Department's own opinion on eligibility that was being reviewed?

Mr. Hardy

Is the Senator speaking about the minutes of the October MAC meeting?

Senator Feeney

Yes.

Mr. Hardy

At that stage no advice had come back from the Attorney General on this issue.

Senator Feeney

The minutes read that legal opinion is still being reviewed. I took that to be the opinion the Department had. The Department was to highlight that particular attention was to be paid to individual cases of all health boards. I get the impression that at this stage this was a brightly burning fire but again nobody asked where was the Attorney General's advice. I apologise if I am labouring this point but Mr. Hardy was at the December meeting to deal specifically with the issue of long-stay charges and he knew the implications, yet no one asked where was the advice.

Mr. Smyth

Nobody would defend the Department's performance in 2004. We should have followed through on it and everybody knows that. As Mr. Michael Kelly stated, the pressures on us during that year were enormous. I honestly do not feel we can defend what happened. It was——

Chairman

Is there any device or time limit set for when advice should be back in the normal course of events during a year without those pressures?

Mr. Smyth

There is a tracking system in place now in the Department to follow up on correspondence.

Chairman

Was there a mechanism at that point in time?

Mr. Smyth

No, there was not a formal mechanism in place but I agree with the Chairman's point that there should be, and there should have been at the time.

Chairman

We constantly hear about the fact that it was a busy year with the EU Presidency and HSE legislation but let us imagine those issues did not exist and it was a normal year. In that case, when an issue goes to the Attorney General's office there must be a point in time when the officials wonder where is the advice. What is the process then? I am not intervening in this point, I just wish to bring it to closure.

Mr. Smyth

In principle we would all agree that wherever the file may be it should be followed through. The feeling in the Department on that day was that the papers had gone to the Minister's office and we were waiting to see what view would be taken. That is not to excuse the fact that the Department did not carry through its responsibilities and we all accept that.

Deputy F. O’Malley

May I ask about a point for clarification?

Chairman

A short point for clarification only. Senator Feeney is not finished.

Deputy F. O’Malley

Mr. Hardy stated that he was led to believe the letter was in the Minister's office. Who led him to believe this? Was that the letter to go out to the Attorney General or the letter with the advice that had come back from the Attorney General? Can Mr. Hardy clarify these points?

Mr. Hardy

Yes, I can clarify that. I meant the letter to go to the Attorney General was in the Minister's office.

Deputy F. O’Malley

Who led Mr. Hardy to understand that?

Mr. Hardy

I remember being told by someone in the Department — I cannot remember who it was — that the letter to go to the Attorney General was in the Minister's office.

Deputy F. O’Malley

There was one other point. I cannot remember if it is contained in the Travers report, but I think Mr. Kelly said that the matter was of such gravity that the letter was not to go to the Minister for Health and Children but was to be signed by the Secretary General. Then, for whatever reason, the Secretary General decided it was to go to the Minister.

Mr. Hardy

No, I do not agree with that analysis. The situation was that the letter was important enough to be signed by the Secretary General, who then decided that its importance merited its being shown to the Minister before it was sent to the Attorney General.

Deputy F. O’Malley

It is a pity it was not sent. Mr. Hardy cannot identify who led him to believe that the letter was in the Minister's office, ten days after it was drafted.

Mr. Hardy

Around ten days later I formed the view that the letter was in the Minister's office because someone told me that it had been sent there.

Deputy F. O’Malley

Mr. Hardy was not concerned that the matter was not progressing.

Mr. Hardy

I was told that it was in the Minister's office and I felt that if it was with the Minister at that stage, then it was a matter that was being dealt with by him.

Deputy F. O’Malley

Thank you.

Senator Feeney

I know Mr. Smyth was not at the MAC meeting in December, but did attend the meetings in March and October. Would he agree that politicians — whether they are Ministers, junior Ministers or backbenchers — can only work effectively if they are supported by the Civil Service?

Mr. Smyth

Of course.

Senator Feeney

It is not the role of politicians to run around with metal detectors, looking for issues that might emerge to bite them, or to run around looking for a fire.

Senator Browne

Ministerial advisers should do that.

Senator Feeney

I am asking about politicians in general.

Mr. Smyth

In principle, controversial issues that may have serious consequences should be clearly signalled to Ministers and their advisers. I would not disagree with that point.

Senator Feeney

Is the role of the Civil Service to outline those kinds of issues for the political process?

Mr. Smyth

Yes.

Senator Feeney

: Is Mr. Smyth aware of any evidence that the political will was tested on this issue or that any Minister or junior Minister was ever asked to make this a top priority?

Mr. Smyth

There has already been much discussion of these issues at this committee. On a general level, without accusing anybody, it was signalled in the 2001 health strategy that the issue of long-stay charges required clarification. That strategy document was published at the end of 2001. The need to deal with the issue had been signalled in other health strategies before that. It was understood that as part of implementing the 2001 health strategy, the Department had to develop a coherent response to all the difficult eligibility issues in the system. Work was done on that and has resumed in recent weeks.

Evidence was given by the previous Secretary General regarding the famous folder and I do not want to revisit that issue. At the meeting in December 2003, which I did not attend because I was on sick leave, there was a discussion of the long-stay charge issue. Those attending the meeting generally understood the significance of the issue and knew what had to be done. In principle——

Senator Feeney

Who was at that meeting when the issue was being discussed? Was it only the junior Ministers and the advisers?

Mr. Smyth

No, if we are talking about the meeting in December——

Senator Feeney

The meeting of December 2003.

Mr. Smyth

No, that was a meeting attended by the MAC——

Senator Feeney

The MAC, CEO group.

Mr. Smyth

Yes. The CEOs, who are from the health boards, the MAC group, comprising people from the Department, the junior Ministers and the Minister himself, Deputy Martin, were in attendance.

Chairman

I must ask the Senator to be brief.

Senator Feeney

I am aware that time is running out.

I asked Mr. Smyth if there was any evidence in the Department to indicate that the political will was tested or that any Minister was asked to make the issue a top priority. We can go back in time, to any period prior to 2001. I know what happened at the meeting of 16 December, but the Chairman is about to tell me to finish and I will not have a chance to ask——

Chairman

I can allow two minutes for that question.

Mr. Smyth

If we are speaking about a very broad timeframe, then the Travers report and the testimony from Mr. Michael Kelly deal with actions that took place prior to 2001, like the submission of memoranda in March 1987, for example. The health strategy of 1994 stated that action was needed on the issue.

I am not saying that is adequate. There must be a response and a follow up on health strategies. The health strategy of 2001 was also clear that the issue had to be faced. It was faced and the Department worked on it. The preparation of a document outlining all the eligibility issues and the action required to deal with them is a process that has begun again in recent times. A Minister requires a document with that kind of clarity.

Senator Feeney

Absolutely.

Mr. Smyth

The options for dealing with the issues would also have to be set out in such a document. That is the way that issue, with other very complicated issues, would have been processed. There is no other way that I can answer the Senator's question.

Chairman

I have to allow Deputy Neville to pose questions now because he must attend another meeting shortly. If time permits, Senator Feeney can pose further questions later.

Deputy Neville

Prior to 2001, when people entered a long-stay nursing home, their medical cards were withdrawn and they were charged for the nursing home places. That was the system.

Mr. Smyth

Yes.

Deputy Neville

In 2001 the medical card became a statutory entitlement, so it could not be withdrawn legally. Did the continuation of the system of charging elderly people ring any alarm bells? The budget provided that a medical card was a statutory entitlement for those over 70 years and that people in nursing homes were entitled to their medical cards, which could not be withdrawn.

Mr. Smyth

It did ring alarm bells. The Department did a lot of work to address the problems caused by the decision to extend full eligibility to everybody over 70. Deputy Neville is correct in asserting that the situation changed with that decision.

The Health Act 2001 covered a number of areas, some of which were quite complicated. That work was done very quickly. The follow-up to the extension of eligibility and the issues raised by that process had to be addressed as part of a broader attempt to clarify eligibility. The current position can be described as patchwork. However, work was done on all the issues.

Deputy Neville

Was this raised with the Minister at the time? Was it appreciated that providing statutory entitlement to medical cards for over 70s was a critical change?

Mr. Smyth

The health strategy, published late in November 2001, dealt with the need to settle the matter once and for all. That is a summary of what was contained in that document. Far from there being no recognition by the Department, it was fully recognised that the issue had to be addressed. The decision to place it in the context of eligibility made sense because it is very difficult to pick out just one aspect of eligibility. That was the problem in the past with the health services, the fact that there was not one coherent set of rules on entitlement so that people could be clear about their rights. That, more than anything else, is what is needed in this area. The current issue is an example of the patchwork that exists.

Deputy Neville

Is the Department exploring the issue of entitlements for medical card holders in private homes who fail to obtain places in public nursing homes?

Mr. Smyth

We are exploring this matter, which is part of the broader issue of eligibility. As legal cases are pending I cannot say much on the subject.

Deputy Neville

I am not asking the outcome but whether a group has examined the matter.

Mr. Smyth

A group within the Department is looking at a number of general issues surrounding eligibility and charges.

Deputy Neville

In terms of the length of time, Mr. Smyth felt that the request to the Attorney General of 16 December 2003 was awaiting progress by the Minister. He was obviously confident that the file was with the Minister. The Minister told us that he did not understand why the file should have been sent to him rather than seeking legal advice on its contents. Would Mr. Smyth comment on this statement? Why, in his opinion, would a delay of three to six months occur in a Minister's office?

Mr. Smyth

I do not have more to say other than that the view in the Department was that the Minister was considering this complex issue.

Senator Feeney

I have a quick supplementary question.

Senator Browne

Time is limited. Supplementary questions may be asked later. We have waited here for two hours.

Chairman

We have 20 minutes. I permitted Deputy Neville to ask a question out of turn because he must attend another meeting. Senator Browne will have 15 minutes to ask his questions.

Senator Browne

Let me ask my question, after which other supplementary questions may be asked.

Chairman

We should not waste time arguing the issue. Everybody will get the opportunity to ask questions.

Senator Feeney

I did not intend to argue but I interrupted my questions for Deputy Neville.

Chairman

The order in which questions are to be put is transparent. The list may be seen by everybody.

Senator Feeney

Mr. Smyth stated that meetings were ongoing and memos were prepared on this issue between March and December 2003. He said that the Department knew that this was an issue. Was Mr. Kelly a member of that group?

Mr. Smyth

The Secretary General would not normally be a member of any such group. Matters would be handled within the units.

Senator Feeney

Was he aware that meetings took place?

Mr. Smyth

I am sure that he was aware because he would have been involved in the decision to set up a unit to examine legislation. That particular unit had a broad remit. Different units were presumably doing separate work on the legislation.

Senator Feeney

I am sorry if I am cutting across topics but I am conscious of the need to move on quickly. Had the advice of the South Eastern Health Board been received by the period in question? Was it discussed at meetings?

Mr. Smyth

It must have been received because we were aware of it. The advice came to the Department in March. We looked at all aspects of that issue as well as exploring other issues.

Senator Feeney

This advice would have allowed the Department to realise the extent of the issue.

Mr. Smyth

It was not the advice of the South Eastern Health Board which did so. The health strategy at the end of 2001 indicated that clarification was needed on the issue of long-stay residential charges.

Senator Feeney

Finally, may I ask——

Chairman

I remind the Senator that she agreed to ask one question.

Senator Feeney

This is my second question.

Chairman

Senator Feeney should continue.

Senator Feeney

Senator Browne should relax because he will get his opportunity.

Chairman

Questions are not like ice cream. They will keep. Equal importance will be attached to Senator Browne's questions.

Senator Feeney

Does Mr. Smyth accept the criticism of the Department contained in the Travers report?

Mr. Smyth

As an individual, it is difficult for me to respond to the question. An attempt is made in the report to set out six or seven reasons why the events transpired. The continuing pressures upon the Department are acknowledged. As I have served in the Department for some time, mainly in the area of finance, I am acutely aware of these pressures. It is widely recognised to be a difficult and high pressure work environment.

The report acknowledges that the background to events should be taken into account. The former Secretary General, Mr. Kelly, in his evidence to the committee said that he felt badly about the Department's performance in 2003 and 2004 on this matter. While I believe that every possible action was taken to bring the matter to a head by presenting it as part of a wider eligibility issue, I understand why Mr. Kelly made this remark.

I disagree with some of the findings of the report. The matter was part of a wider attempt within the Department to clarify the issue of eligibility and entitlement. In 2003, CEOs who explored this issue were not unanimous and they continued discussions on it until autumn. A decision was finally made at the MAC CEO meeting in December. In 2004, as at present, every section of the Department was busy and under constant pressure. While I acknowledge that the Department might have done better in certain aspects, the overall pressure on the Department is a significant factor.

Senator Feeney

But that is not being used as an excuse.

Mr. Smyth

No, it is not.

Senator Browne

Is it agreed that a Minister is appointed on the basis of special skills which make him or her stand out as being amongst the most brilliant 15% of the population? The impression given by Senator Feeney and members of the Government is that the Civil Service is there to hold Ministers' hands at every opportunity. Ministers appear to be junior infants who have arrived for their first day in school. Ministers are appointed and work with the Civil Service to protect the taxpayers' money. The former Minister for Health and Children, Deputy Martin, was aware of a problem. It is wrong for the Government to shirk its responsibility and blame civil servants.

Senator Feeney

Where is the evidence?

Chairman

Allow Senator Browne to continue, please.

Senator Browne

The evidence is in the Travers report. Ministers have intelligence available to them and should be able to follow through on issues. The former Minister for Health and Children, Deputy Martin, answered thousands of parliamentary questions on long-stay charges and was aware of both the Ombudsman's report and a legal opinion on the matter. Although he arrived late for a meeting, he was still briefed on the issue and his advisers, who were at the meeting, knew about it. He should have followed through irrespective of what other issues arose. This episode gives the impression that the role of civil servants is to hold the Minister's hand and protect him or her at every opportunity, which is an abuse.

With regard to one of Mr. Hardy's comments, the joint committee learnt at a previous meeting that the letter was brought from Mr. Kelly's office to the outer office of the Minister, Deputy Martin, by a civil servant and handed in person to another civil servant who inquired as to what was in the folder. Members await clarification in this regard. Mr. Hardy stated he was informed by another civil servant, who I presume was not Mr. Kelly, that the folder or letter was on the Minister's desk. Was it in the Minister's office or an outer office?

Mr. Hardy

I understood it was brought into the Minister's office but I did not know any more than that. Many people in the Department knew that — Mr. Smyth and everybody else around the Department were of that view as far as I understood it. As far as I can see, it was, therefore, the view under which the majority of people were working at the time.

Senator Browne

Was the letter in the outer office or the Minister's actual office?

Mr. Hardy

I do not know.

Chairman

Surely the question is not relevant.

Senator Browne

It is relevant if the Minister had the letter on his desk and it later disappeared.

Chairman

Short of inviting in Detective Columbo to find out where the letter went, the joint committee cannot make any further progress on the issue.

Senator Browne

We may find out the answer when we get the e-mail.

Senator Feeney

Is it not the point that there is no evidence to suggest the letter ever got to the Minister's office?

Chairman

Our job is not to wonder whether it reached the inner or outer office.

Senator Browne

We await an e-mail to clarify this point. According to the blacks — the Official Report — the letter reached the Minister's office. At any rate, that is a different issue.

Senator Feeney

Why bother in that case?

Senator Browne

The Minister for Finance, in a political stunt which had many implications afterwards as we now know, announced that those aged over 70 years would get medical cards. Did no consultation take place beforehand? Did no one even ask how many people would be affected by the measure? How many of those aged over 70 years had medical cards prior to 2001 and how many have them now?

Mr. Corcoran

I do not have the information at my fingertips but I can send it on with the other documentation. Essentially, the process, as I mentioned before, was that the Department was informed of the decision on the Friday before the budget. We were essentially told that the measure would be announced in the budget. The planning and costings followed rather than preceded the decision.

Senator Browne

I presume the number of those aged over 70 years increased substantially after the legislation was introduced.

Mr. Corcoran

Yes.

Senator Browne

This would have created a significant problem in the long term, particularly given that a higher than average percentage of the over 70 age group is in long-stay care. Mr. Kelly stated that in 1987 the late Mr. John Boland, as acting Minister for Health, was aware of a problem in this regard but that the Government fell before legislation was prepared. Deputy O'Hanlon was appointed Minister for Health in the new Government and for some reason the legislation was not followed through. I forget the phrase used with regard to the advice given on the legislation at the time. Mr. Kelly appeared to indicate that political interference may have been the reason the legislation was not followed through on that occasion and other occasions when the issue resurfaced. It was explained that a Department which wants to introduce legislation brings the matter to the relevant Minister's attention and he or she then brings it to Cabinet. Could a Minister prevent legislation from being proceeded with and, if so, has this occurred frequently in the past?

Mr. Smyth

On that point, a memorandum of the Department went to Government at the end of March 1987. As I understand it, a decision was taken at Cabinet that the matter would be discussed further. Other things were followed through as a result of this memorandum. That is what happened at that point.

On the more general question, any memorandum going to Cabinet is subject to Government decision. It may decide not to proceed with a proposal or it may wish to have it amended. It is perfectly feasible and within the final remit of the Cabinet to do this. It simply depends on the issue. The Department dealing with the issue would normally bring a memorandum to Cabinet, which is what happened in the case in question.

Chairman

I would like to clarify the position regarding Mr. John Boland. Are we correct to presume the memorandum was brought to Mr. Boland by civil servants? It is frequently asked why no action was taken and the inference is that this was due to a change in Government. It has been asked why the new Government did not follow through but surely we should track back and ask why whoever brought the memorandum to Government in the first instance did not check the latest position.

Mr. Smyth

I am genuinely trying to remember what happened in January and February of 1987. The normal process would have been that civil servants would bring a memorandum to the Minister of the day. In the case in question I cannot recall how the process took place. My memory is not clear but my instinct is that the civil servants of the day would have brought the matter to the Minister who would then have brought it to Cabinet.

Chairman

Following the subsequent change in Government, I presume the same civil servants or colleagues were in the Department. Surely they would follow through with the new Administration if they believed nothing was happening.

Mr. Smyth

Yes, that would normally be the position, although March 1987 was a difficult time because decisions were being taken on the level of public spending and so forth and the Government faced budgetary pressures. Normally, however, what would happen is that a memorandum of that kind would be — although I am not certain in this case — a matter for a civil servant.

Chairman

At the risk of taking a political position, which I have not done since these hearings began, surely the parties in the outgoing Government would have pointed out 12 months after moving to the Opposition benches that one of their colleagues had raised this issue in Cabinet. Why did they not ask questions in the Dáil? I wonder what is the importance of the memorandum from John Boland if the Opposition failed to act and did not follow through. Surely this major issue would have been raised at shadow Cabinet meetings. We can throw blame around but it is clear——

Deputy Twomey

Was John Boland re-elected?

Chairman

Yes. The point is that members of the pre-1987 Cabinet, disappointed that they did not win the 1987 general election, moved across the Dáil with this important information in their possession but failed to follow through on it.

Deputy Twomey

It is amazing that we are to conclude that the Opposition was wrong.

Chairman

When Governments leave office they lose all sense of responsibility. We have asked every question that could possibly be asked.

Deputy Twomey

In March 2001 a memorandum was circulated by Michael Kelly indicating that the advisers to the Minister were to be kept informed. In light of all we have discussed today, did no one brief the Minister's advisers at any stage before the September 2003 meeting, as laid down in the 2001 memorandum?

Mr. Smyth

Is the Deputy referring specifically to long-stay charges?

Deputy Twomey

Yes.

Mr. Smyth

It was signalled in the health strategy published in November 2001 that the issue of long-stay charges had to be addressed and it was addressed within the Department. In fairness to the advisers, they would not necessarily be involved in every group in the Department following through on an issue. However, the issue was signalled in the November health strategy.

Deputy Twomey

Was it made clear in discussions on the health strategy that a problem was about to arise in this regard? The health strategy document, which I read over the weekend, indicates that issues arose with regard to eligibility but does not give any precise background information as only one section refers to long-stay charges.

Mr. Smyth

The feeling in the Department on the issue, which went back some years, was that we had to get clarity on it. I was not involved but that is why, to some degree, the 87 memos went the way they did.

The 1994 health strategy also referred to charges. It was not as if it was a blinding insight in the health strategy in 2001. It was something that simply had to be addressed because other issues around eligibility also had to be addressed. Clarity was necessary on many issues and that was seen as one element of it. While the health strategy reflected all of that, it should not have come as a surprise to anybody. The necessary bureaucratic exercise for the Civil Service was to try to put some flesh on the concerns expressed in the health strategy. We focused on the charging side and more generally on other issues that were affecting the broad work of the Department in terms of entitlement and eligibility. It is an extraordinarily complex exercise that covers every programme of which one can think.

Deputy Twomey

Is Mr. Smyth in saying that when he was drawing up the health strategy, he would have been aware that there were difficulties in regard to nursing home charges?

Mr. Smyth

We were aware that clarity was needed in the area of long-stay nursing home care. That had been signalled before. The issue was very much out there. That is the reason the Department moved on it in 2002 and 2003. The legal opinion which came to the South Eastern Health Board referred to a number of aspects of this matter. That sharpened people's minds in terms of the issue but it had been around for a while and it just needed clarity one way or the other as regards to what people were entitled. That also extends to other areas in the health system. We have had the same Health Act for 35 years, which is a long time.

Senator Feeney

Deputy Twomey asked about the memo Mr. Kelly sent to different sections of the Department about the role of advisers. Point three had four little appendices, two of which are relevant. One states that the relevant adviser should be made aware of and invited to key meetings concerning either a policy change or high profile topic or instance. Another point relates to the participation of advisers at MAC meetings. Were the advisers brought into the meetings that took place between March and December?

Mr. Smyth

No, they were not.

Senator Feeney

Did the memo not state that if the issue were important enough, the advisers should have been at the meetings?

Mr. Smyth

There were meetings with the South Eastern Health Board. There was also a meeting soon after the service plan meeting on the legal opinion.

Senator Feeney

Were the advisers at that meeting?

Mr. Smyth

No, they were not. As I understand it, the legal opinion obtained by the South Eastern Health Board was to be handed over to the relevant division at that meeting. A number of things happened thereafter. It was the work of the health boards to try to reach a common view and then come to us with their agreed view of what needed to be done. As stated earlier, there was no unanimity around that. Within the Department, the work of placing the charging issue within the broader workload had been going on for some time. That is where it was and we were expecting to get some response from the CEOs. I am just trying to give the background to it. I think it was a reasonable approach, on the part of the Department, not to take this out of the broader issues. That had to be brought to a point.

Senator Feeney

This was known to be an issue when meetings took place between March and December but it was not considered of sufficient importance for advisers to be informed. In hindsight, does Mr. Smyth think it would have been wise to have had the advisers at the meeting?

Mr. Smyth

In hindsight, other things might have been done differently anyway.

Senator Feeney

Should the advisers have been present?

Mr. Smyth

Yes, perhaps. It is difficult to say. Usually advisers would only be brought into discussions when civil servants have come up with recommendations. That is the approach taken in any Department when setting up a process which is essentially trying to bring together a range of complex matters in order to achieve coherence and rationality.

Advisers are often involved on other issues such as accident and emergency services, for example, or any other hot issue. They are there because these are headline or crucial issues. I would separate that from the type of work we were doing, which was very much centred on getting some coherence in respect of what is a difficult and complicated area.

Deputy Devins

Were the then Minister, Deputy Martin, or the Ministers of State, Deputies Callely and Tim O'Malley, briefed on the implications of the South Eastern Health Board legal opinion before the MAC meeting of December 2003? Were they briefed by means of a one page memo, a sit-down briefing or by any other means?

Mr. Smyth

No, what they got was a briefing for that meeting.

Deputy Devins

Leaving that aside——

Mr. Smyth

The Ministers of State would not have had any briefing on that issue from the Department up to that point. As I said before, I do not recall any brief going to the then Minister, Deputy Martin, other than the process I have described about trying to follow through on the health strategy. I could be wrong. Is that a fair comment?

Mr. Hardy

A brief?

Mr. Smyth

For before the December meeting.

Mr. Hardy

Certainly no brief was given other than before the December meeting to the then Minister, Deputy Martin.

Deputy Devins

That was the point of my question. I accept that there were issues concerning eligibility, etc., but was any briefing made specifically in regard to the vista that this legal opinion could possibly raise even though it was being discussed in the Department from February-March until December?

Mr. Smyth

No, there was no briefing given to him. I mentioned the process and the background.

Deputy Devins

I understand that.

Chairman

I thank Mr. Smyth and his colleagues for coming before us this afternoon.

The joint committee adjourned at 2.30 p.m. until 1.30 p.m. on Thursday, 5 May 2005.