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Seanad Éireann debate -
Friday, 17 Dec 2004

Vol. 178 No. 30

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

Question proposed: "That the Bill be now read a Second Time."

I am pleased to explain this Bill to the House. In this debate, we must address important issues with clarity, purpose and fairness. People in long-term care, and their families, should have clarity about how care will be provided and paid for. It is also important that any charges made by the State are on a fully legal basis.

We should have confidence in our public administration operating effectively in the public interest at all times. Where mistakes are made it is important that they are recognised, responsibility is taken, and that the lessons are learned and applied.

May we have copies of the Minister of State's speech?

Yes, it is intended to circulate copies of the speech.

The Minister of State should continue.

I wish to deal with three areas — first, the provisions of the Bill; second, the scheme of repayments the Government will put in place; and third, the issues arising from the handling of this question within the Department of Health and Children.

Just as the Tánaiste placed on the record of the Lower House yesterday a number of documents as an annex to her prepared remarks, I am also placing on the record of this House today the same documents as an annex to my remarks. I am putting before the House all the facts of which I am aware. This the only way each of us can form clear and fair assessments.

The purpose of this Bill is to provide a legal framework for the charging of patients in long-term care in health board institutions and publicly contracted beds in private nursing homes. The Bill will establish a sound legal basis for the long established practice of health boards in charging for the costs of maintenance in institutions providing long-term care.

Most people accept that it is fair and reasonable that those who can afford to contribute to the cost of their long stay care should do so. This has been implemented by successive Governments and by Ministers for Health from all parties in Government since 1954.

The charges raised are used to support the provision of care for those in long-term residential care. These charges currently generate approximately €100 million in revenue for health boards each year. The cost of long-term care, even of the shelter and maintenance part, is clearly more than this amount. There is no doubt that the loss of this income would have an adverse effect on our ability to provide the health and caring services our population needs.

I am attaching as one of the annexed documents a brief background note on the history of the legislative basis on which charges have been raised up to now. Similar information is found in the report of the Secretary General of my Department, prepared at the request of the Tánaiste for the Government meeting on Tuesday.

The essential point is that the basis for charges made since the McInerney Supreme Court judgment of 1976 arose from a circular issued by the Department of Health to individual health boards. This circular, which is included in the annexed documentation, authorised a practice by which the chief executive officer of a health board could regard patients as not meeting the criteria for full eligibility while being maintained in long-term care, on the basis that the necessary general practitioner and surgical services were being provided for them.

The withdrawal of medical cards and full eligibility in this way was taken to enable a charge for inpatient services to be raised under the 1976 regulations, which provided for charging for persons other than those with full eligibility.

The extension, in 2001, of full eligibility to all persons over 70 years of age, irrespective of means, was not the reason the practice of charging in this way was found to be without a sound legal basis. The flawed basis for charges for anyone with full eligibility goes back to the 1976 circular which continued to be implemented after the 2001 decision. I will return later to developments since 2002 on how the legal issues around this were handled when I address departmental management issues.

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

The provisions of the Bill will implement the Government's policy which, in summary, is as follows: It is reasonable that charges should be made; charges must be on a sound legal basis; and clarity must be brought to charges made in the past so as to avoid needless litigation and potentially large instability in health care funding.

As indicated by the Tánaiste yesterday, and as I have reiterated at the beginning of my contribution today, where mistakes are made, they should be recognised and there should be redress if at all possible. The Government recognises that a mistake on the legal basis for charges has been made for 28 years. Notwithstanding the fact that the policy had consistent support and that persons benefited from their payment, the Government believes that some repayment should be made because a mistake was made.

It is clearly beyond our financial and administrative ability to repay all charges since 1976. We have decided, therefore, by way of a goodwill gesture to make repayments to people with full eligibility who have paid charges to date. I expect that approximately 20,000 people will benefit from this repayment. Each person will receive a repayment of up to €2,000. These payments will be made automatically, where possible, and as soon as possible in the new year. We will also advertise to allow persons to apply for this payment. This is to ensure that no person who has made payments is left out or is unduly delayed in receiving payment. For example, there may be those who previously had been in long-term care but have since left or moved to another setting and records may in some cases not be as readily available as is normally the case.

The Government believes this is a reasonable and fair way to recognise that a mistake was made. Those now in long-term care will benefit directly and exclusively. Administrative and legal costs will not absorb any part of the repayment which will be done speedily and fairly.

I will now address how this issue was handled at various times since 2002 by my Department and in its work with health boards. At the end of 2002, the South Eastern Health Board, in the context of a number of claims about charges by and against the board, obtained legal advice on a range of issues related to long-stay care in both public institutions and private nursing homes. An extract from the legal advice was handed to the Department at a meeting with the South Eastern Health Board on 11 March 2003. I am informed that the broad content of the advice was also made known by the South Eastern Health Board to the chief executive officers of the other health boards.

The relevant aspects of this advice were considered within the Department over the following months. However, a decision was not made during this period. The charges for long-term stays in public institutions were discussed in some detail at the end of year review meeting between the Department's senior management and the chief executive officers of the health boards on 16 December 2003. I am laying the minutes of that meeting before the House. The meeting concluded that it would be necessary for the Department to obtain a definitive legal assessment as the first step in drawing up legislation on eligibility and charges. Arising from that meeting, a small group was convened within the Department to prepare a position paper on the legal issues surrounding charges for long-stay patients in public institutions. This position paper was drawn up at the end of January of this year, as was a letter to the Office of the Attorney General requesting legal advice signed by the Secretary General. Unfortunately, this letter was not sent at that time.

Following questions on the issue from Deputies Kenny and Perry in the Dáil and elsewhere last October, the Tánaiste immediately sought legal advice from the Office of the Attorney General. The legal advice provided by the Attorney General on 5 November made it clear to her that new primary legislation would be required urgently to underpin a policy that persons can be required to contribute to their costs of maintenance, namely, shelter, food, bed and clothing, in a public institution, or a contract bed in a private setting.

In light of that advice, work began immediately in the Department on the preparation of the necessary legislation. The Tánaiste received further advice on 8 December from the Attorney General on legal problems arising out of the continuance of such charges. On foot of that advice, a letter was issued on the Tánaiste's instructions to the chief executive officers of the health boards and the Eastern Regional Health Authority asking them to immediately cease making such charges, pending the introduction of amending legislation. The health boards confirmed last Friday, 10 December, that they had taken the necessary steps to do so. Drafting of the legislation continued between the Department and the Attorney General's office, and was completed so that the Tánaiste was in a position to bring a memorandum to Government this Tuesday, 14 December.

These are all the facts of which I am aware which have led to today's debate. The Tánaiste made clear in the Dáil yesterday that one of her immediate objectives was to place on record all the facts she knew. As regards requests for copies of the relevant legal advice to be made available, it remains the long-standing policy of Departments not to release legal advice as this can be prejudicial to the State's ability to defend litigation in the courts.

It is clear that serious issues arise from the manner in which this important legal issue was handled in the Department of Health and Children. The Government proposes to deal with the charges by new law and by making ex gratia repayments. There is also a responsibility on us to deal with public management and administration issues. The Tánaiste has asked Mr. John Travers, a retired head of Forfás with a distinguished career in the public service, to examine the management of this issue in the Department and the reasons the Attorney General’s advice was not sought at the earliest possible time. The Tánaiste will ask him to identify lessons that can be learned and applied from these events, in the interests of more effective public administration in the Department of Health and Children and elsewhere. She intends to give him the greatest latitude possible for recommendations in this regard and expects to receive his report by 1 March 2005. The Tánaiste had further stated that she will publish this report.

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

This legislation will bring clarity to an area which has not been operating on a sound basis for almost three decades. This is a genuine attempt to correct that flaw so that charges for long-term care will now have a sound legal basis. This Bill will ensure that the income from charges will continue to support the provision of quality services to those in long-term care.

If we do not allow this funding to be retained, the loss of resources for the health service is estimated to be approximately €8 million to €10 million per month. It has been accepted that these charges, as contributions to the cost of care, are fair and reasonable. I commend the Bill to the House.

The documents annexed to my speech include a background note on the history of the legal basis for charges; a Department of Health circular dated 1976; a report of the Secretary General dated 13 December 2004; and the minutes of a meeting between the Department of Health and Children and the chief executive officers which took place on 16 December 2003. I apologised in respect of my attendance at that meeting.

I welcome the Minister of State and his officials to the House but it is unfortunate that the House is debating this Bill. Last September we were treated to the farcical illusions of Fianna Fáil suddenly rediscovering its soul as a sharing and caring Government and party of the people.

We have proven it.

The party was massacred in the local and European elections. That facade has certainly been blown off by this draconian measure. The Government is rushing through this legislation so that it can begin charging old-age pensioners in Christmas week. Scrooge is well and truly alive in the form of this Government.

Fine Gael Members were naturals in the role themselves.

The manner in which the Bill is being rushed through the House is disgraceful. The blame game has begun. The only people who cannot be blamed are the pensioners over 70 or in long-term care in public nursing homes but the blame is being pointed in their direction. This is regrettable, reprehensible and despicable, especially in Christmas week and the season of so-called goodwill. The sharing and caring Government has gone and poor Fr. Seán Healy has been forgotten. I am not too sure who is advising the Government this week.

The Attorney General.

It should not be forgotten that only a year ago a similar debacle occurred when the then Minister for Social and Family Affairs, Deputy Coughlan, wanted to restrict special entitlements for widows and widowers. The Government seems to have learned nothing from that debacle either. It is very worrying to see this trend continue.

I question the genuineness of the Government's attitude to this issue. Fine Gael has submitted a freedom of information request on this subject. This might explain the reason the Tánaiste was very forthcoming in releasing documents, in particular the interesting document relating to the meeting on 16 December 2003 at which Ministers were present. The then Minister for Health and Children, Deputy Martin, is now back-tracking by saying he arrived late for the meeting.

Serious questions remain to be asked. What were his Ministers of State doing at the meeting? Are they talking to each other? It is a pity that the Minister of State, Deputy Tim O'Malley, is not present in the House. I presume he is conveniently absent. The Minister of State, Deputy Brian Lenihan, cannot be blamed because he did not attend the meeting and the Minister of State, Deputy Callely, has moved to a different Department. Principal officers of the Department of Health and Children attended the meeting. What lines of communication exist in the Department? There seems to be an à la carte approach to picking the nice topics and not being made aware of the bad topics. The former Minister cannot abdicate his role in that area.

When Fine Gael was in Government, poor Deputy Owen as a Minister was blamed for everything by Deputy O'Donoghue who was then Opposition spokesman for justice. He gave the impression that the Minister was personally liable for all criminal activity. When Fianna Fáil is in Government it conveniently forgets and moves away from terms such as "collective responsibility" and the concept of a Minister being responsible for his or her Department.

It is worth noting the Government's recent acknowledgement that it has failed completely in the provision of medical cards. There are now 200,000 fewer medical card holders than in 1997. The Minister has introduced a new system of GP-only medical cards but this is only a short-term solution. It will not work out in the long term and must be reconsidered. The Minister has not clarified whether these recipients will progress onto full medical card cover over a period of time. These new cards have been described as "half medical cards" but they are less than that. Those in possession of a GP-only card will lose out on free prescriptions and free access to inpatient and outpatient facilities and orthodontic and optical services. They will lose other benefits available to the holders of full medical cards, such as the exemption for State examination fees. The Government's record in this area in the last year is atrocious.

By 2036, when most of us will no longer be involved in politics, almost one fifth of the population, or 1 million out of 5 million, will be over 65 years of age. The Government has not inspired confidence that it will initiate steps to provide for the care of the elderly in the long term. Almost 30 years ago, the Supreme Court ruled that medical card holders were entitled to free inpatient care, including in nursing homes. In 2001, the previous Minister for Health and Children, Deputy Martin, initiated a scheme to give medical cards to all over 70 years of age. He did not do his homework, underestimated the number of people involved and did not consult widely enough. The deal was apparently done at the 11th hour.

We are now seeing the results. An interesting aspect of this is that State subvention of nursing homes has gone from €15 million to €115 million in a short number of years. This scheme was a pre-election gimmick in 2001. The Cabinet, including the Tánaiste and Minister for Health and Children, should have seen the implications of this measure. The Tánaiste cannot point the finger of blame at the Minister, Deputy Martin, and walk away. That is disingenuous in the extreme.

Apparently, the Department first became aware of possible legal difficulties in 2002. However, the Irish Nursing Homes Organisation, INHO, claims the Department sought legal advice on the legality of the nursing home patient charges in 2001. Why has there been a three-year delay in this matter? In March 2003, the South Eastern Health Board gave the Department legal advice that the practice of charging medical card holders for nursing home care may have been legally unsafe. That health board stopped charging two nursing home residents on foot of complaints they made to the Office of the Ombudsman. An article in The Irish Times this week indicated that health boards did not charge pensioners who made complaints. Those who were able to speak up for themselves did not pay the charges while the weakest and most vulnerable members of society, who could not defend their rights, were obliged to make such payments. This is shocking. I hope never to see such a situation arise again.

Members of Senator Browne's party were in control of the Department of Health in several Administrations when these charges were collected.

That is not true.

The Government has always given us to believe that the world began in 1997.

As my colleague, Senator Bradford, has said and as I have learned in my two and a half years in the House, the world began in 1997. Senator Mansergh tells us so repeatedly. This is what we have learnt. Every utterance by Fianna Fáil Members begins with the phrase, "Since 1997".

I thought it began in 1954.

Perhaps the Minister of State's aunt will have some stories for which to answer when she speaks.

The blame game has begun. The lack of accountability in this area is appalling. The Minister has released minutes of the meeting at which this issue was discussed but I contend that this is a consequence of Fine Gael's submission under the freedom of information legislation. There is no evidence of a rush to transparency. This meeting was attended by Ministers of State in the Department and the previous Minister, Deputy Martin, although he arrived late.

He was probably getting his photograph taken that morning.

I am sure he received and read the minutes of the meeting. There is no doubt there was poor management. The former Minister, Deputy Martin, allowed that situation to arise and he was the person with ultimate control of the Department. The Minister of State, Deputy Brian Lenihan, has admitted that the letter that should have been received by the Attorney General last year was not sent. Why was this letter not sent?

I welcome the fact that Mr. John Travers, the distinguished former chief executive officer of Forfás, will investigate the management of this issue by the Department. I hope that civil servants are not scapegoated, as is usual in politics. The Minister should take responsibility, as happens in other jurisdictions.

The Minister of State acknowledged in his speech that the €2,000ex gratia payment could be challenged in the courts. The payment is fine but all bets will be off if somebody is unhappy with it and makes the case in court that it is insufficient to compensate for the payments he or she has made. This is a dangerous scenario. There seems to be great uncertainty among people who have failed to achieve admission to a public nursing home for themselves or their relatives. As a last resort, such people had to take the option of private nursing home care. This issue is the subject of a legal case and the Minister of State is far better acquainted with the legal situation than I am. However, there may well be implications if that court case is successful in that people might then be entitled to the difference between what they paid for private nursing home care and what they would have paid for public care. The issue may be more significant than we have imagined.

Nobody has any difficulty with people paying their way for nursing home care. However, the issue is that if someone gets money illegally from another party, there is no choice but to repay that money. It is as clear as that. There can be no equivocation. If I were to take money from Senator Glynn to which I was not entitled, I would return it without hesitation. I hope I would do so at least. The Government does not seem to acknowledge this principle. It is shocking that this legislation is being pushed through so that it can charge the old age pensioners involved in Christmas week. In her speech yesterday, the Tánaiste seemed to place the blame somewhat on the people involved. Her concern was that if the situation continued, there would be a cost to the State which would impact on other services. This is regrettable. The people requiring nursing home care are not blame.

We are sure to see more articles on this issue in the newspapers over the weekend. The Minister for Enterprise, Trade and Employment, Deputy Martin, is under siege, whether correctly or incorrectly. The roles could be reversed next week, however, because an interesting case will be heard involving a challenge to the Personal Injuries Assessment Board. If that case is successful, the Minister, Deputy Martin, may be able to dig up some files in the Department of Enterprise, Trade and Environment that have implications for the Tánaiste. There may be an interesting Christmas period ahead.

The measures announced by the Tánaiste yesterday in the Dáil were shocking. Some 80% of an individual's pension will be retained for the provision of nursing home care, leaving him or her approximately €35 per week. A caller to "Five Seven Live" yesterday pointed out what this would mean for pensioners. An allowance of €5 per day is laughable. If a pensioner in this situation wishes to buy a newspaper every day and one on Sunday, it will cost approximately €9. The purchase of such items as toiletries and other everyday living expenses will be difficult. They will be unable to purchase gifts for grandchildren, smoke even ten or 20 cigarettes per week or have a few drinks.

Pensioners in long-stay nursing home care should receive a minimum of €50 per week. Pensioners built this country and should not be treated with contempt. One can tell a lot about a society by its treatment of older people. I am appalled by many of the measures in this Bill and by the reaction of the Government to the situation. The actions it is taking to correct it are shocking. The Government is penalising those who do not deserve it. A survey of the period 1990 to 2000 indicated that 38% of pensioners lived in the bottom 20% of households in income terms. I am sure these figures have been updated since then but they provide food for thought. It is amazing that the Tánaiste has lectured all other institutions, from the insurance bodies to banking institutions etc., about overcharging. However, when faced with a clear issue of overcharging by the Department of Health and Children she does the opposite to what she has preached in recent years.

Recent newspaper headlines about the Government's meanness and incompetence are deserved. It was really shocking that the Government had planned to make people complete application forms to claim back the money they were rightly due. Thank God that due to the persistence of Deputy Kenny and other Fine Gael Members, this plan was scrapped and at least now people will get it automatically. I welcome the fact that advertisements will be placed in the newspapers to rectify the matter and encourage people to come forward. However, I wonder whether it will stop there.

The Minister of State has cited history and of course Fianna Fáil is very good at re-writing history. He has blamed legislation going back over 30 years, which would obviously involve Labour and Fine Gael Ministers during that time. If the old legislation was a problem, why was the 2001 legislation approved? The Government cannot answer that question.

I hope I never have to deal with such an issue as this again. The treatment of old-age pensioners is disgraceful. It was clear from the legislation that health boards were not legally entitled to reduce the full eligibility of people over 70 or legally seek a contribution from them. Had this matter not been pursued in the Dáil by Deputy Kenny, when would the Department have taken action on the matter? Are other similar stories waiting to be uncovered in the Department? It is completely unacceptable that the former Minister for Health and Children, Deputy Martin, did not read an 80-page document giving legal opinion on the issue. What steps will be taken to ensure this will not happen under the watch of the Tánaiste, Deputy Harney?

I resent the fact that we have been forced to sit an extra day this week to take legislation correcting a mistake made by the Government, who will now seek to penalise those people even further in Christmas week. The timing is all wrong and the image of a sharing and caring Government is truly dead, like the ghost of Christmas past.

Convenient amnesia is alive and well and living in Fine Gael. It is important to remember that whatever we do in terms of introducing legislation must be fair and equitable. I do not believe the blame game will do much good. However, we must accept that charging patients in long-stay institutions has been ongoing for many years. The Government is introducing this legislation because it is essential that any charges that may be made have a sound legal basis. It is especially important for the State to ensure that the charges and taxes it imposes are clearly legal, whether for health or any other services.

The legal issue relates to charges made towards the cost of shelter and maintenance for people in long-term care in public institutions, county homes, district hospitals, welfare homes, community nursing units, psychiatric hospitals and publicly contracted beds in private nursing homes. For an elderly person on a basic State pension this comes to approximately €120 per week. We need to remember and appreciate what a pension or a social welfare payment is. It is unreasonable and hypocritical of those on the other side of the House to claim that the State should pay a pension as well as keeping them in a long-term institution.

We never said that.

Under the shelter and maintenance scheme this has being ongoing for years. Senator Browne is correct in pointing out that our population is ageing. As we are living longer and families are getting smaller, it is axiomatic that the number of older persons in society will be on the increase. To address this matter the Government introduced the national pension reserve fund.

Senator Browne referred to Scrooge. When his party had the opportunity in a flourishing economy, it made Scrooge look like a benevolent Santa Claus.

By what action?

The rainbow coalition Government gave the old-age pensioners only £7, approximately €9, in three years.

We had no stealth taxes as we do now.

The facts speak for themselves. The Senator referred to medical cards. I remind him that a medical card is an income-related facility. The many thousands of people who have entered the workforce have gone outside the terms of eligibility. Fine Gael chided the Tánaiste and Minister for Health and Children for changes to the medical card scheme. However, this is a very important step. We all know that general practitioner charges have significantly increased. I appreciate that general practitioners have costs including those for staff, which have increased.

Geriatric medicine is a very important specialty. The Midland Health Board employs a geriatrician at the general hospital, who does excellent work. The medicine pertaining to health difficulties for the aged is a specialty all of its own.

For 50 years people in long-term care have paid towards the cost of shelter and maintenance. It was provided for under the 1954 regulations, amended in 1965 and again under the Health Act 1970 and the 1976 regulations. Senator Browne's party was in Government in that year. People accept it is reasonable and fair that a contribution should be made towards living costs, in other words the non-medical expenses of shelter and maintenance. It should be noted that people receive their pension from the State to meet living expenses. When people go into long-term care, these expenses are taken care of. Successive Governments have implemented this policy and provided for new charges from time to time. Governments involving my party and others have done this.

For many years I worked in a caring profession.

Unlike now.

I can speak with experience and knowledge. I found it reprehensible that on the death of a patient who had not seen a visitor for years, when the relatives could be located the first question they would ask was whether the deceased left any money. It was a nauseating situation, which I encountered far too often for my liking. I am sure Deputies Finneran and Connolly from the other House would tell similar stories. It is not a nice thing to say about a so-called Christian society.

Money was taken from the income of such patients to ensure they had extra comforts. It must be borne in mind that the additional needs of patients in long-stay institutions would vary. Some patients would not spend a penny from one year to the next. Other patients had additional needs and liked to take a drink or a cigarette or have a bet on a horse. We are not comparing like with like. All right-thinking Members of both Houses would accept that we should not pay people an income and also take care of them. It is not fair or acceptable. It never was the case and to claim so is to make a nonsense of the taxpayers' money.

For the long-term care of people the concept of national pension reserve fund is very important. It is all about planning for the future. When planning for the future in the psychiatric services was introduced it had huge implications for long-stay institutions.

I recall that Senator Norris and another Member of the previous Seanad tabled a motion about inappropriate bed occupancy in acute hospitals, particularly psychiatric hospitals. Many acute beds in psychiatric hospitals were used as hostel beds and long-stay psycho-geriatric patients were being cared for in psychiatric hospitals when they should have been in geriatric hospitals. The policy of planning for the future in the psychiatric services has had a major impact on the elderly. In many instances, this has been for the better.

The Government recognises that a mistake has been made, hence the introduction of this legislation. One recalls the saying, "You are damned if you do and damned if you don't." We recognise that mistakes has been made but, as already stated, any charges imposed must have a sound legal basis. The ex gratia payment is being made out of a sense of moral obligation rather than on foot of a legal requirement. The Government is making a once-off goodwill gesture because we believe it is fair to make some repayments. It is anxious to bring about clarity and finality in respect of this issue. An essential part of achieving these is to make repayments. Are Members on the opposite side of the House stating that we should do nothing? In my opinion we must take action.

The legislation is being put in place to ensure that charges will have a legal basis. The Bill also contains retrospective powers in respect of deeming legal the past practice of charging.

Reference has already been made to the proposal to repay €2,000 to people who were charged. A person charged anything less than €2,000 will be refunded the actual amount charged. The scheme will cover people who are still living and who are currently receiving or who have received long-term care in the past. Payments will be made, where possible and in the majority of cases, as early as is practicable in the new year. There had been plans to advertise to allow people to apply for these payments but these have fallen by the wayside. We are all taxpayers and if the State pays out money, it should go to the people who are entitled to it. I do not see anything wrong with that and I believe all right thinking people would agree with me.

The details regarding the administration of the repayments were worked out, as a matter of urgency, by the Department of Health and Children. The new health service executive, which is taking over from the health boards on 1 January, will administer the scheme.

Approximately 20,000 people, the majority of whom are elderly and who occupy long-term care places, are likely to receive the repayments. It will not be taken into account for any means test carried out by the Departments of Social and Family Affairs and Health and Children, nor will it be subject to taxation.

Will people in private nursing homes also obtain repayments? The repayment scheme mainly applies to people who have been in long-term care in public institutions. The only people affected in private nursing homes are those in private beds contracted by a health board. People who are in private nursing homes receiving the nursing home subvention will not be affected, nor will those in such homes whose means are over the means test limits for a subvention payment.

Having discovered a legislative glitch, it is important that the Government has moved to correct it. It is also important to ensure that we cater for the needs of the elderly. A clear principle is being established in the Bill, namely, that it is not acceptable that taxpayers should pay incomes which are supposed to sustain and maintain others in the community or that they should be obliged to pay on the double if these individuals enter caring institutions. It would not be fair to expect taxpayers to do so. I may have misunderstood what was said earlier but that is the impression I obtained.

As stated earlier, elderly persons in long-stay institutions have varying needs in terms of their extra comforts. Perhaps a way might be found to address those needs. I thank the Minister of State for the comments he made and I commend the Bill to the House.

I welcome the Minister of State who has acted expeditiously and provided the House with full reports. I also welcome the fact that he has published the surrounding documentation. Some of the latter is technical in nature and I do not propose to discuss it in any great detail. It is important, from the point of view of democracy, that this information has been placed before us. In providing it, the Minister of State has acted courteously, efficiently and in a manner which assists the democratic process.

Senator Glynn's speech demonstrated one of the values of the House, namely, that one can actually hear from people who have first-hand knowledge and experiences of matters of this nature. When a Member has this kind of experience, it is important to listen to his or her contribution with respect and to take into account what they have to say. Senator Glynn made some sensible, useful and practical points. He stated, for example, that it would be foolish for the State to give money to people which is intended to sustain them in the community and then make no attempt to ensure that they are given the dignity of making a contribution.

I have, however, a number of qualms about this matter. The first of these relates to the quite substantial number of millionaires in this country who manage to pay no tax whatever.

Some of the language used — even that employed by the Tánaiste — in the debate on this matter has been unfortunate. I salute the Tánaiste, however, because I believe she took on a poisoned chalice. I do not know anyone else who would have plumped for the Department of Health and Children. Most people would run a mile from it. The Tánaiste is an efficient and clear-thinking person and it is significant that she unearthed and confronted this problem mere weeks after assuming her new position.

One of the terms used previously in the debate on this matter was "pocket money". Let us not use such terms in respect of the elderly because they are demeaning and patronising. When one has lived one's life, earned one's money, paid one's taxes — unlike our friends the millionaires — and contributed to society by raising a family or whatever, it is terrible to be told in one's 70s, 80s or 90s that one can have pocket money. Would it not be possible to refer to it in some other way? The Minister of State avoided using the term "ex gratia payment” but it was used in the Lower House. There is an element here of the lady of the manor handing out things from her wicker basket. Elderly people are entitled to the money they receive.

I am concerned about the retrospective nature of the legislation. If it was illegal to take money from these people, surely they are entitled, as of right, to full recompense. I do not believe it is correct that the legislation should have retrospective effect but, on the other hand, the sums involved would be quite huge were that not the case.

There appears to have been a certain degree of co-operation in the earlier stages of the debate on this matter. Questions were asked, particularly by the Fine Gael Party, in the Lower House which helped to bring this matter to light.

We need to be sensitive in terms of elderly people and their treatment. I am not too concerned about the lump sums because many of the people involved, if they are in institutional care, will not have any major use for the money. I may be wrong but that is what I believe. On the other hand, the income they are allowed to retain is important.

I listened to an radio interview last night with Michael O'Halloran, an extremely decent man who served as Lord Mayor of Dublin some years ago. I recall doing battle with him about the preservation of 18th century buildings, etc., but we became friends following our initial spat. During the interview he documented, as did Senator Glynn, the things people in institutional care often want or need. He stated that they might buy a daily newspaper and a Sunday newspaper, which is more expensive, a pint every second day and one packet of cigarettes per week. This would mean that they would exceed the €35. There should be consultation with Mr.O'Halloran and his group, the Irish Senior Citizens' Parliament, which is non-party in nature, or Age Concern to see if a practical way of dealing with this matter can be found.

The Minister now has a good bargaining chip to get facilities for the elderly. Members have said that this money was taken illegally and in some cases people's houses were sold. Some of these people may have felt, perhaps unrealistically, they may be able to go back to their houses. That possibility was removed because they were forced to sell them as they were taken into account in calculating how much money they had. The Minister can now bargain for expensive equipment such as hoists. Certain institutions find it difficult to get these things.

I pay tribute to the people who work in this area. I have an aunt whom I love very much and who I looked after for a few years. She very sensibly said that she was falling over while I was in Leinster House gadding around and I might find her on the kitchen floor after a stroke one day. She went into the Alexandra Guild House, which is marvellous. The staff were pinched and squeezed by the financial constraints but they were not bleeding the old dears in the place, they were very generous in what they charged. I brought the subject to the attention of the Minister's predecessor and the programme manager in the Department of Health and Children. I got the directors of the nursing home to come along and a sensible financial plan was worked out so they could get a subvention from central funds and, along with a financial expert, we put together a system where relatives who paid could claim tax allowances. That is one of the things of which I am proudest — that we saved that wonderful facility for old people. It was necessary, however, to give them help from outside.

This is an increasing problem because the population is ageing but we prefer not to think about it. I mentioned facilities because I was contacted by a man who works near me about his mother. She is in a hospital in Dublin that I will not mention because I have not visited it and that would be unfair. She has Alzheimer's disease and is being looked after. She is restrained and has uncontrolled bowel movements. For her dignity the family have tried to keep her wearing her own clothes. They sometimes get bags of clothes which have been left in the corner for a couple of days with bowel movements in them. That is dreadful. She has been accepted for another residential home but they cannot get the medical authorities in this other hospital to sign the form that would release her.

This is what we are talking about. I do not blame the people in this hospital, I am sure they are under-staffed, over-stressed and lacking resources. This woman is repeatedly falling. Every time her relatives visit, she is bruised. When they ask for an explanation they are told she fell or she was given a glass of whiskey for her birthday and she was not used to it and fell over. The place caring for her is not suitable. We should be able to look after our old people better.

I do not envy the Government trying to untie this Gordian knot. It is right and practical, however, that it should be done. It is appropriate that relatives should have to make some contribution. They cannot grumble too much. Senator Glynn mentioned families who do not visit elderly relatives at all and then come in for the kill at the end if they think there is a pot of money. It is barbarous and I hope it does not happen too often. If the resources exist, there is a moral responsibility to look after one's own.

This should not be treated as a political football. The situation emerged due to the questioning of the Opposition and the integrity of the Minister. It is now being faced and a practical resolution must be found. I worry about the legal effectiveness or unchallengeable nature of retrospective legislation that states that even though it was illegal to take people's money, they will only be given back a certain amount. We must be careful of the language of the ex gratia payment —“pocket money”. I am a mere 60 years old and if someone told me he was going to give me pocket money I would give him a clip on the ear. I imagine there are quite a few feisty old dears in residential homes across the country who would, if they could get out of their beds, give a resounding clout to anyone who used such language to them and I would support them in doing so.

I welcome the Minister of State to the House. Accusations have been made that the Government is rushing this legislation but those accusations are unfair. Speedy action is needed. Every week we postpone this legislation will cost the Exchequer and the Department of Health and Children €2.5 million. As the Tánaiste said in the other House, it would be an expensive Christmas recess were we to postpone it.

At the heart of the matter is that we treat fairly and reasonably the expectation that those who can afford to contribute to their long-term care should do so, as has been the case since 1954. I pay tribute to the Tánaiste for the manner in which she dealt with this. She did so speedily, openly and sensitively. Comments have been made about some of the language being used and, unfortunately, at times it is difficult to find the right words. No one has a monopoly on interest in the elderly. We all have families with elderly members and we value the way those people are treated.

The Tánaiste was made aware of this situation in November, sought legal advice, which she received on 8 December, and immediately set about taking the necessary action to correct this anomaly. Senator Browne referred to the Tánaiste lecturing other institutions on overcharging and then doing the opposite in her Department. That is rich coming from a party that has had, albeit short, experience in Government but given that experience, it is aware of how responsible Governments must act. Fine Gael presided over the health service that gave us one of the greatest scandals this State has seen, the hepatitis C scandal, so it is rich that it refers to the Tánaiste as insensitive. Her actions have been decisive.

There are three courses of action. In the immediate term, we must amend the legislation to place these charges on a sound and legal basis. In the medium term we must review the management of this issue, who knew what and when. I welcome, therefore, the appointment of Mr.Travers, a distinguished public servant, to carry out a review of the management structures that allowed this situation to evolve. I am also glad that his report will be received by the Tánaiste by 1 March. Finally, in the longer term there is no doubt but that we must look seriously at care for the elderly.

Senator Glynn's contribution was valuable, given his experience in this area. This is a new and challenging situation in the light of today's demographics. As society has changed, the extended family has declined. In many cases, both partners now work and grandparents do not always live in the family home.

The Tánaiste has not become aware of this change only in recent weeks. As late as last April she commented that when the SSIA scheme comes to an end, that money should be diverted to care for the elderly. This is not a new-found interest on the part of the Tánaiste.

The elderly are a vulnerable sector in society, as those of us who canvass and engage elderly people at their doors are aware. Loneliness, insecurity and an element of fear are apparent. It is most important that public representatives ensure the State embraces the challenges facing us in terms of changed demographics and that we put in place a proper system whereby elderly people can be supported. People should be supported in their own homes if that is their wish. However, if there is a need for them to go into some form of residential care, that should also be provided. We should not postpone that challenge.

I commend the Bill to the House. It is necessary and is an example of good governance. We are seeking to address an anomaly in the system in an open and transparent manner. The Bill should be embraced in that spirit. Let us deal with the short-term objective of putting a proper legal basis in place to address the anomaly. Let us await the report of Mr. Travers and put in place a proper management structure and health care policy that will look after the elderly into the future.

I am grateful to Senator Minihan for sharing time with me. I welcome the Minister of State, Deputy Brian Lenihan, to the House. He might be relieved to know I will not refer to Dickens. What does come to mind however is the Dutch folk tale of the unfortunate young boy who had to put his finger in the dyke. I hope the Minister of State's finger does not freeze off before this matter is sorted out.

The Bill is necessary and I do not have a difficulty with it. Nor do I have a difficulty with the concept that people who can afford to pay for their care in old age should make provision for that, although there is a problem at the moment in view of the apparent collapse of insurance and endowment policies. People are losing faith in that industry.

I am worried that something may be overlooked in the desire to sort out eligibility, entitlements and what went wrong. The director general's statement indicates a black hole which something fell into and everybody else hoped it would go away if they did not ask too many questions about it. I congratulate the Tánaiste on grasping the problem and dealing with it so expeditiously.

Before focusing on the need for legislation in regard to eligibility, it would also be worthwhile to think about the basic policy in regard to care of the elderly. This is most important. It is not a matter of sentimentality of emotion, it is a matter of health economics and about how one can order things in such a way that one does reduce the weight on the acute hospital sector and in so doing help people to live. Far more attention is required for domiciliary care and care in the community. Senator Minihan referred to this point. The aim should be to enable people to live in the community and maintain them there. Barriers which prevent the free movement of people from one part of the structure to another should be removed. I appeal to the Minister of State not to be satisfied with a review of the legislation but to examine the policy behind it and look at what we need to do which in the long term is of greater importance.

Another point on which I would like to comment, which also arises in the director general's note and elsewhere, is the rather cursory attention given to the finding of the Ombudsman, as if the Ombudsman were just another lobbyist. The Ombudsman is the officer appointed by these Houses to look into administrative matters. References such as "in the view of the Ombudsman" or "the Ombudsman thought" appear to me to be rather disparaging. What I thought was worse was a report I read to the effect that some health boards were remitting charges to those people who had complained to the Ombudsman but not to others. What the Ombudsman pointed to was systemic failure, in effect to class actions. It behoves a Department or health board at the stage of getting a report from the Ombudsman which shows systemic failure to look at the other examples of the impact of that failure of systems.

Like Senator Norris, I found Senator Glynn's contribution in regard to his own experience extremely interesting. It reminded me of the English professor of social administration who once remarked that where there is a will there are relatives. That is a very strong reason for ensuring that public money is not used to provide benefits for otherwise uncaring relatives.

In the context of the proportion of the pension that is retained by people, I welcome the new subsection (4) which gives the administrator the opportunity to take individual circumstances into account. Senator Glynn made a perfectly valid point, that if one gets the old age pension to provide for one's living expenses, it is unfair to expect to get other things free when one goes to hospital. However, when one is at home one has some element of control over one's expenditure. One can decide whether to spend it on A, B, C or D. Not to have that is a great indignity and loss of freedom for an elderly person. Will the Minister of State examine whether an accommodation could be made for 50% or some other percentage of it to allow people retain some independence?

I do not believe the retrospective provisions are entirely free from challenge. This is a cause for concern. Having said that, the Bill is a timely one and an attempt to create certainty where that does not exist.

I was going to leave some reflections on the bigger issues until last but as Senator Maurice Hayes and others have introduced them, I will commence with them. I do not accept the general proposition that we should ask people to pay for care in the circumstances which currently operates. The current system is a typically Irish mess with several different tiers where people are asked to pay for long-term nursing home care. On the one hand, there are those, specifically covered by the Bill, in public homes and beds who are asked to pay a significant proportion, 80%, of their old age contributory pension towards the costs while on the other hand, there are those who can afford to pay for any measure of care, whether it is nursing home or medical care. Many people are somewhere in between, in long-term care subvented by taxpayers' money. The result does not provide an even level of care for everybody that the system should aspire to do. It is a mess because there are so many people who fall through the system who cannot get access on a reasonable basis.

The public system in many parts of the country is little short of a joke. In north Dublin, it is extremely difficult if one is looking to access a public bed in these circumstances as the waiting list is years long. I have had the experience of desperate relatives looking to me to help them jump the queue. It is heart-rending when little or nothing can be done for them. These people are often at the end of their tether with nowhere to turn. There are not enough public beds. Many people are forced to consider private nursing homes. However, even with the benefit of subvention, they cannot afford it. I do not buy into the notion of charging by user charges paid when dealing with long-term care. A better way of doing this needs to be examined.

The Department of Social and Family Affairs has started such an examination. Last year, it produced an interesting and stimulating policy document which canvassed an additional 1% payment on PRSI to provide for such care. This deserves serious consideration. I believe we should look at the idea of private insurance, as people prefer that to social insurance. A system could be introduced where everyone would be obliged to either contribute to a social or private insurance system to ensure they are pre-funding any care which they may require in the future. It is society's responsibility to ensure that our old people are dealt with properly. The ad hoc system of means-tested user charges does not operate that well.

I have never been a fan of the long-term pension fund. It is somewhat strange to be dealing with the needs of pensioners in 20 or 25 years time when we all accept that today's pensioners are not well looked after in pension or care provision. When people who have contributed much in their taxes are old and require care some means must be found to ensure they receive a benefit from the fund. This is better than saying to today's pensioners that when they are dead in 20 years' time, their offspring will get a decent pension. I do not accept the notion that we can predict with any certainty the demographic profile of the State in 20 years. It has dramatically changed in the last 20 years from a relatively high birth rate to a low one and which is now going back up. The dependency ratio is changing, thankfully for the better, by virtue of the number of immigrants and people contributing towards the labour force, which no one predicted ten years ago. A solid case can be made for accessing available funds to measurably improve the provision of long-term care. We all accept this and the Tánaiste has claimed it is one of her priorities.

I commend the Tánaiste for acting decisively in introducing the Bill. This is an issue that has been ticking away in the cupboard for several years, ready to explode. The Minister of State at the Department of Health and Children, Deputy Brian Lenihan, said it was important when mistakes are made they are recognised, responsibility taken and the lessons learned and applied. I am not sure we are doing this as responsibility is not being allocated. In the note prepared by the Secretary General of the Department, it is clear that no one is taking responsibility. In effect, the note claims that the Department was terribly busy during this time with the health strategy, the EU Presidency and everything else and it slipped through the system. This may very well be the explanation. People may have been overworked and may have taken their eyes off the ball with the result that the problem persisted. If so, it is not good enough as it does not point the finger of responsibility in a way we are entitled to insist should happen.

The Ombudsman was aware of this problem for five years and pointed it out. We know what happened in the South Eastern Health Board and that it has been in the Department for 21 months. We know a decision was taken on 16 December to do something about. Something was initiated but not pursued. We do not know why it was not followed through. Claiming that everyone was too busy is not good enough.

The meeting of 16 December 2003 is important. The then Minister for Health and Children, Deputy Martin, claims he arrived late to it. While we can accept this, the minutes would have been provided to him later. The Secretary General of the Department and the Minister's officials must have been aware that the substantial body of legal advice should have been brought to his attention. It is remarkable that no one took the trouble to sit down with the Minister for five minutes to explain the existence of this long-standing problem and how it must be dealt with eventually. If the then Minister, Deputy Martin, was not available to deal with it, then surely the then Minister of State at the Department of Health and Children with responsibility for services for older people, Deputy Callely, should have been asked. Deputy Callely is not known for his reticence. I would be interested to hear his explanation. Like most of his constituents during that period, I received much literature from Deputy Callely detailing his good work on behalf of older people. I am sure he would like to take the opportunity to explain his views——

The Senator should refrain from mentioning Members of the Lower House, complimentary or otherwise. Other Members might have different views.

The Cathaoirleach is right. I withdraw my excessively familiar references to the Minister of State at the Department of Transport. An explanation is needed and we are entitled to hear it. Those we have heard do not ring true. It is not good enough for those involved to claim they simply forgot about it.

I am concerned about curative legislation as it should be treated with great care. However, we are not getting the time to do so. It is being rushed through both Houses of the Oireachtas in 72 hours and will be signed by the President under an early signature motion. The Bill seeks to deem as lawful a procedure which we know was not. In a sense, it is a contradiction in terms. The Bill states that the charges which were unlawful are lawful. This should be done with great care. The Labour Party has obtained legal advice which raises serious concerns about the constitutional issues involved in the Bill. I do not claim to be a constitutional lawyer. The Minister of State at the Department of Health and Children, Deputy Brian Lenihan, has far greater knowledge on such matters.

While this is not a criminal issue but largely a civil one, serious questions remain to be answered. As Deputy McManus stated in the Lower House, it is not sufficient to say that Mr. Hogan, learned constitutional lawyer as he is, has given his advice and, therefore, we are absolved from having to give any further explanation. It would be helpful if the Minister of State could give the House more detail of the advice he has been given and of his views on the soundness of the curative legislation we are asked to endorse so quickly. The Department, having wrongly charged people over a long period, has both a legal and moral responsibility to repay the individuals concerned. One could cogently make the case that the State should not try to contact the estate of somebody who died in the 1970s to make a donation to it but anybody who is still alive is entitled to a repayment.

It is not clear how the system of automatic repayment will work. I presume that some of the people who are entitled to repayment are in long-term care, so there is no difficulty in that regard. However, some are not in long-term care, including those who are deceased. How does the Department of Health and Children propose to check the status and locations of the individuals in question, so that it can make automatic repayments?

None of us likes to see legislation of this nature. The Bill will close the chapter on a saga of incompetence and mismanagement. I welcome the establishment of an inquiry by the Department. It is important that it should be pursued with rigour. I welcome the Tánaiste's commitment to publishing the results after it has been finished.

I welcome the Minister of State, Deputy Brian Lenihan, to the House. The Department of Health and Children is dealing with this issue in a competent manner. The Health (Amendment) (No. 2) Bill 2004, which has been passed by the Dáil and will be passed by the Seanad today, has been brought to the House on the basis that it is required. It will regulate this sector, which has been the subject of a great deal of concern over a long period. As a former chairman of the Western Health Board, I have dealt with many nursing home subvention cases involving patients in long-stay care in publicly funded nursing homes, which used to be known as county homes.

Recent developments have come as a surprise to many people. Residents of public nursing homes were satisfied to make a contribution and to receive what has been termed the "pocket money" that they were given. Many people considered the pocket money to be inadequate to meet the needs of the residents, especially when one considers the increased costs of modern times. When the nursing home subvention scheme was introduced in private nursing homes, regulations required family members to contribute towards the cost of the care of their elderly relatives. It proved impossible to administer the scheme, which was scrapped some time ago. I am sure the Minister of State is familiar with the details of the debacle at that time. The collapse of the scheme raised serious issues about long-term care in private and public institutions. The cost of a bed in a private nursing home is approximately €500 or €600. If a person whose pension has been taken away has to make a contribution, he or she might need to sell the family home to pay for care in a long-term institution.

The nursing homes operated by the State are of a very high standard. The three such homes in County Roscommon — the Sacred Heart Hospital in Roscommon town, which has over 200 long-stay beds, Áras Mháthair Phóil in Castlerea and the Plunkett Home in Boyle — are managed extremely well by the Western Health Board. The staff and directors of nursing in the homes provide the highest possible standard of care and attention. Private nursing homes have provided tremendous service, in co-operation with the health boards. Some form of control or regulation should be introduced to deal with the number of nursing homes being built in certain areas without regard to the number of patients who need to be dealt with in the areas. Similarly, action should be taken to control costs, which have soared in recent years.

I ask the Minister to clarify an interesting anomaly that came to my attention in November. I will refer to the man in question, who is a resident of a long-stay institution, as "Mr. G". His Irish pension is taken from him and he is given some pocket money in the normal way. Along with that little allowance, he used to receive a small pension from the United Kingdom that was of great assistance to him because brandy and whiskey can be quite expensive. I brought this case to the attention of the relevant administrative authorities in November, before this Bill was published, when I learnt that Mr. G's UK pension was being confiscated, even though he had not given permission to do so. I considered that it was improper to take the money from him.

As recently as yesterday, the administrative personnel in the Sacred Heart Hospital in Roscommon town justified their decision to confiscate Mr. G's small UK pension. They informed me that they have not received any instructions about the Bill under consideration. I accept that it has not been passed or signed by the President. The Department's programme managers should send documentation to the institutions to alert them to the matters which are arising. When I spoke to Mr. G, who is 79 years of age, on the telephone yesterday, he told me he is delighted to be getting his €2,000 back. He made the point that it is strange that if the Bill was beneficial to him, it probably would not be passed as quickly by the Houses. Mr. G is well-known for his interest for politics. He canvassed strongly in south Roscommon in the past.

Will Senator Leyden present the €2,000 cheque to him?

I would be delighted to do so. I hope the money can be sent out. Having read the documentation, I am convinced that Mr. G, who has been in the institution for a number of years, will be eligible for a €2,000 cheque in the new year. I would like officials from the Department of Health and Children to examine the concerns I have in this regard. I have mentioned that the institution in question is the Sacred Heart Hospital in Roscommon town and I have referred to the person in question as Mr. G. The authorities in the hospital are well aware of the situation. I felt that it was improper to confiscate his UK pension. A great deal has been said about the Bill and the difficulties which have arisen, but I want to emphasise that point.

The Senator has one minute remaining

I would like to share my time with Senator Daly.

You will not share a minute anyway.

I will give Senator Leyden my final minute.

That is agreed.

I missed the Minister of State's opening speech. I ask him to clarify the position of private nursing homes and institutions. Pensions have been taken into account during the amalgamation of finances which has been needed to fund the care of elderly people in private nursing homes. The cost of accommodation in such nursing homes, which can be quite expensive, has been met by a combination of elderly people's pensions and funds supplied by their relatives. I ask the Minister of State to clarify the matter, although he may already have done so in his opening speech. Do the institutions have to provide money? How will the State refund those who have paid substantial sums of money for their care? Will the payments be made from funds allocated by the private institutions and the State? I thank Senator Leyden for the useful minute.

I apologise to the Senator.

Senator Daly took less than a minute.

When I listened to Senator Leyden's tale of Mr. G, I found it easy to imagine Fianna Fáil Ministers and Deputies touring district and community hospitals in the coming months to present cheques for €2,000, as if they were lotto cheques.

That is a good suggestion.

I do not feel that it would be beyond them.

The Senator has a low opinion of Fianna Fáil.

It has been argued that this legislation has been rushed. The case for the defence has been made by Senator Minihan and others, who have said that speedy action is required, which is a fair point. We need speedy action to put in place, for once and for all, a plan to deal with the issue of long-term care for the elderly. The statistics were enunciated by some Senators, including Senator Browne, who emphasised that a considerable proportion of the population will be elderly in 20 or 30 years. Senator McDowell made the valid point that we not only need to plan for the future but that we also need to plan for the present. Every politician, local and national, is contacted weekly, if not daily, by constituents seeking some type of long-term accommodation for their elderly relatives or friends. This is one of the most difficult queries to deal with as a politician because a solution is always very difficult to find. There are simply not enough places available. If any good is to result from this debacle and this necessary legislation, rushed as it may be, I hope it will be that the minds of the Tánaiste and her ministerial colleagues will be focused on the broader question of care for the elderly.

Portfolios held by the Ministers of State at the Department of Health and Children seem to change very regularly. Could one Minister of State not have sole responsibility for the elderly? The number of issues faced by the elderly——

That is the case.

The Minister of State in question has a broader remit and does not deal solely with the elderly. If one Minister of State dealt specifically with all the problems faced by the elderly, it would help to achieve redress.

Let us consider the retrospective payment of those who were asked to make a contribution towards their nursing home care. Will the Minister of State indicate, while wearing both his ministerial and legal hats, how certain the Government is that its position will stand up to challenge in court? On the one hand, we are saying the charges were illegal and, on the other, we are saying we must put in place legislation to underpin those charges. This is an unusual way of doing business. I am sure the Minister of State has already been asked about the legal ramifications but he might expand on them. Approximately 20,000 people are to be repaid €2,000. Will the next of kin of those who died in the care of the district homes or community hospitals receive the payment of €2,000, or will it just to be paid to those currently resident in those institutions?

While we appreciate that this legal minefield has been made public and that it must be dealt with, serious questions must be asked about how it was handled. The former Minister for Health and Children, Deputy Martin, has not in any way rendered himself glorious in his attempt to distance himself from responsibility in this area. He was in charge when the problem was fully and formally noted. We first heard he was not present at the meeting with the chief executives of health boards, we then heard he was present and later heard he was present but turned up late. Whatever the explanation, it is simply not good enough. There are other jurisdictions in which a Minister involved in such a mess would not remain in Cabinet and would not excuse himself by saying he did not attend or was late for a meeting. I commend the current Minister for Health and Children, Deputy Harney, on at least facing up to the problem and trying in some small way to correct it.

It is disappointing that we are debating this matter well over two years after it was first formally highlighted. This demonstrates once again that, in the Department of Health and Children, progress appears to be made not only very slowly but also in a very unusual fashion. This crisis is not the first in that Department and I presume it will not be the last. Bearing in mind that the Department has such considerable funds at its disposal and such responsibility for virtually every citizen, the fact that this problem has been ignored for so long after its being highlighted poses very serious questions.

On the broader issue of care for the elderly, Senator McDowell referred to the semi-private, private and public systems of care. The thousands of people seeking care are not concerned with the ideology behind who provides the care but that it is available and affordable. This presents a great challenge to us all and it is the subject on which this debate such focus. This debate might tie up a loose end but we do not know but that it might become undone in the courts. We must tackle seriously the broader issue of care for the elderly because the elderly not only need care but certainly deserve it.

I wish to share my time with Senator McHugh.

Is that agreed? Agreed.

I welcome the Minister of State to the House. We have dealt with this serious problem over the years and it was sometimes quite embarrassing that the pensions of those in nursing homes were so minimal. The issues were very confusing even for elected representatives. The decision to grant all persons over 70 a medical card was a stunt on the part of the Government prior to the last general election but we welcomed it nevertheless. However, the Department of Health and Children underestimated the number of eligible people and believed there were 39,000 instead of over 71,000. One must ask who crunches the numbers because this is a considerable underestimation. The legislation introduced was seriously flawed and it is clear therefrom that health boards were not legally entitled to reduce the full eligibility to people over 70 or to seek a contribution from them.

Although I understand why the Senators on the Government side have been quite positive in stating why this Bill is needed, I contend that the Minister of State is rushing it. It should be noted that when people complained to the health boards and said this practice should not be continued they were not charged extra.

Senator Leyden mentioned the €2,000 refund. It is a bit soon to determine how much can be paid until we see the extent of the payments received illegally and the number of people affected. This is a bit hasty. It is as if someone came into my shop and I overcharged him or her by €20 or €10, and when he or she returned three weeks later I put up my hands saying I had made a mistake and offered €2, take it or leave it. This is not a bargain basement or a closing down sale. These people have been swindled in many ways. We should stand back and determine to what extent they have been short-changed. It is a bit rich to start offering a certain sum, take it or leave it. I would like that clarified and I am sure the Minister of State will clarify it.

The real issue surrounding the legality of nursing home charges is focused on the legislation passed in 2001. One problem area is that there was a meeting last year but the then Minister for Health and Children did not seem to take the initiative. In politics we like people to put up their hands and say "Mea culpa”. The present Minister deserves our congratulations and thanks for being honest and up-front. I appreciate that.

Like my colleagues on this side of the House I have major concerns about the fast-tracking of this important Bill. By not giving it enough time issues will be missed and there can be grey areas that need to be addressed. On the political debate surrounding what Senator Feighan called mea culpa, or the question of who is to blame, it is easy for the other side of the House to go back to 1976 but the nub of this issue concerns what happened in 2001. That is when the nettle should have been grasped and the matter addressed but it was not.

With regard to the outcome of the Bill, much work remains to be done on the set procedure for medical cards and subvention payments for private nursing homes. That debate needs to begin very soon because there is a large cloud over the issue and a great deal of misinformation and lack of transparency and accountability regarding subvention. If this legislation is passed today there will be a legal mechanism for effecting payments.

A major issue surrounds community hospitals. I can use my own area as an example, where there are community hospitals in Dungloe, Carndonagh and Lifford, outside the mainstream Letterkenny General Hospital. We need answers before a vote is taken here. Will convalescent patients who are recovering or rehabilitating in community hospitals be charged after 30 days? That question must be answered. For example, a gentleman or lady who needs a hip replacement may, due to the pressures in the general hospital in Letterkenny, recover or rehabilitate in one of the community hospitals. It may take longer than 30 days in some instances for an elderly person to recover from an orthopaedic operation with the necessary physiotherapy rehabilitation programme. After 30 days will that patient have to pay charges? This is a very important issue and has not been raised due to the fast-tracking of this legislation. It is important that the Minister of State say whether an elderly person undergoing treatment, rehabilitation or otherwise in a community hospital must pay after 30 days. We need an answer before taking a vote on this legislation.

The Cathaoirleach must have noted that when a Government Bill is presented here it is seldom that so few Members support it.

That is not relevant to the business.

It is relevant but the Cathaoirleach must remain at a distance from it. Only one or two Members on the Government side came in to the House today to support this legislation because most Members on that side do not support it. The rest will vote on it and disappear because this legislation will hurt. They have got the message on the ground and are hiding this afternoon. It is a pity. This legislation is penalising pensioners in Christmas week because it will mean that between 70% and 80% of their pensions will be taken from them. Does the Minister of State agree that as soon as the Bill is passed he will be deducting 80% of the pension from old age pensioners in long-stay institutions, in Christmas week? Is Senator Leyden, as a former member and chairperson of the Western Health Board satisfied to do that? I doubt he will visit all the long-term institutions in Christmas week, as he does before elections, and tell the people that this is what he and his Government have done.

In regard to the blame game, which many Members mentioned this morning, the then Minister said that he missed the important part of a meeting with the chief executive officers and did not know this matter was discussed at it. The chief executive officers decided there should be no change and they would continue their demands. Down through the years all the health boards demanded that people pay for their keep in those long-stay institutions but those affected could not afford it. I mentioned it recently on the Order of Business. Those are the people for whom I feel sorry. The new Minister for Health and Children, the Progressive Democrats and Fiannna Fáil in Government will demand 80% of the pensions of those affected. They will answer no questions but want people to pay up.

Is the Senator voting against the €2,000 refund?

We will come to that. That is all they have. Does the €2,000 that is to be paid to those concerned represent a first instalment?

Let us consider the years from 2001. For 80% of the pensioners, it amounted to IR£80 in 2001, €104 in 2002, €117 in 2003, and €120 in 2004. Senator Leyden should not make a big deal out of that. If one only pays back €2,000, there is still an outstanding bill of €19,500. Is that the first instalment? That might encourage the Government to go back and talk to those affected. If it is a once-off payment and the rest is to be forgotten about, the Government should answer why it is illegally withholding €19,500 from the pensioners and others who have had to pay in such a situation.

In the past, health boards harried relations and patients to get money from those in hospital, who were vulnerable. If in long-term hospitals or care, they were in no position to defend themselves and whatever resources they might have saved over the years. They had to hand over a portion, sometimes half and sometimes most of it. In the most extreme instances, they had to sell their homes — or their relatives had to do it for them — to allow them to remain in the long-stay beds.

Fine Gael was in the Government between 1994 and 1997.

If that is your only defence, you should have gone home like the rest of them.

Senator Ulick Burke should speak through the Chair without interruption.

Some 20,000 people had illegal deductions taken from them. All that is on offer today is €2,000. The remainder is an illegal debt. Let the Minister put the shoe on the other foot and imagine that people had been overpaid social welfare benefits. The Department of Social and Family Affairs would insist that it all be paid back quickly. Why are the demands of the voiceless to have the illegal payments returned to them not acted on, as any Department would demand if it were so entitled? It is a sad Christmas for 20,000 or more people in this country. That is why the Government benches are so vacant. The only one present, who is most unusually silent, is Senator Leyden. I pity him; he will not be visiting any of those long-term institutions in his constituency.

If he plans to do so, he is more of a hypocrite than I thought.

The Senator should withdraw the word "hypocrite".

I qualified it with "if".

I am no hypocrite.

I agree with the remarks of my colleagues. I attended the House a few weeks ago when we discussed the Second Stage of the Council of Europe Development Bank Bill 2004. I was castigated by members of the Government parties because there were not sufficient voices from the Opposition, particularly from my own party, to discuss that Bill.

They are all here now, so we think more of them.

Of course, they were all there on that day because they were involved in the Council of Europe or wished to be. They are striking today by their absence. I will not have a go at Senator Leyden, who as usual has contributed. In fairness, he had to remain for the duration of the Bill. However, the absence of his colleagues speaks volumes regarding this legislation — probably more than I could ever say. I welcome the Minister of State at the Department of Health and Children, Deputy Seán Power, to the House. I understand he was placed in a very unenviable position yesterday, making remarks in the other Chamber to the effect that the former Minister for Health and Children, Deputy Martin, had not attended the famous meeting with the CEOs, although it turns out that the Minister himself admitted on national television last night that he had been present at that meeting, albeit belatedly.

The Senator is misquoting me.

I know that the Minister of State will take the opportunity to correct the record on what happened.

The Senator should check the record before he starts quoting me.

I join my colleagues in expressing disappointment and absolute outrage at the moneys withheld from people in residential homes. At this time of the year, it is a poignant symbol of how out of touch the Government is with many sectors of society. I am particularly disappointed that, as we can all plainly see, if my colleague, Deputy Perry, and our party leader, Deputy Kenny, had not been so vociferous in this regard, very little if anything would have been done to recompense those people who found themselves defrauded by the State. I salute the efforts of Deputies Perry and Kenny to highlight the issue and ensure that the Government take action. I echo Senator Ulick Burke's comments, who expressed his reservations about the €2,000 that it is proposed to repay. In many situations and circumstances, that will not be commensurate with the amount that people are owed.

I also want to return to another aspect of the Health (Amendment) (No. 2) Bill 2004 that relates specifically to the new health service authority and the abolition of the health boards. We have seen crocodile tears in both Houses from members of the Government regarding the fact that local representatives' voices will be removed almost completely from the running of the health services. It is a retrograde step and particularly disappointing that the first implementation and change brought about in reforming the health services was the abolition of the board itself, with no substantial reform of structures below that level, from the chief executive officers down to administrative staff.

Several speakers have pointed out the great increases on health in various budgets and Books of Estimates published over the past few years. During that time, we have also seen remarkable increases in the numbers of those employed in administering the health service, but not in doctors, nurses and medical staff. In this House we heard the statistic during a debate a few weeks ago that, of 33,000 extra people employed over a five-year or six-year period in the health services, only 6,000 were nurses. Most of the remainder were administrative staff.

That is the big issue that must be tackled by this Government or any other regarding reform of the health service. No proposal has been announced in this Bill or by members of the Government to tackle the serious issue of where resources are spent in the health services. We must achieve better value for the money that we spend. This Bill and this Government are not doing enough to ensure that we get it, and that is why I have serious reservations about this legislation.

Virtually everything that needed to be said has already been said. There is just one matter that I would like to raise that has not yet been mentioned. One of the serious difficulties with such issues that the Department of Health and Children, the hospital services board, and primary continuing community care have when planning health services is the lack of knowledge on patient numbers, something brought into sharp focus by the extension of medical cards to over-70s. At the time, I said that I welcomed it, although I thought that others deserved a card more than all those over 70 without a means test. However, the measure has now been introduced. I recall that at the time it was believed that approximately 35,000 people would avail of those medical cards. I understand 67,000 people have now registered for such cards. How can the Department plan when it has such inaccurate figures? This not only relates to financial planning but the planning for places and knowing where they are needed. It is impossible to do so at present.

The same situation may arise in respect of the extension of the medical cards on a doctor-only basis. I welcome that measure. It would have been nice if it had included doctors and medications covered by the cards, but we have no idea how many extra people will be covered or whether the primary care system can cope with this number of people.

I suggested on numerous occasions in this House that one solution that would help would be if people were assigned personal identifier numbers at birth. That would enable us to identify the number of people coming into the health services each day, month and year and the number who need immunisation at six weeks, six months at two years and so forth. Such an identifier number would enable us to plan. It could be described as any great intrusion into people's privacy. There has been a move towards that with the establishment and greater use of PRSAs.

I would be grateful if the Minister of State conveyed to the Minister for Health and Children the relatively simple solution of giving people an identifier number. Then we would have some method of planning ahead and would know what number of people might require each service or what unforeseen cohorts might require services. It would also help us in terms of financial planning.

I can understand why this legislation is being rushed through in this way. I regret that, but huge amounts of money will have to be expended by the Department which it did not expect to expend. It will have to produce the money from somewhere. Those unfortunates who are not legally liable to pay these people, under the legislation, will have to pay up. I regret that the people concerned cannot be refunded all the money they paid out, given that if one owes income tax, one is required to pay every last cent. I am sure the vast majority of these people were hardworking taxpayers all their lives and I very much regret that they will not be recompensed in full for money that should not have been taken from them in the first place.

I urge the Department as a matter of urgency to put in train some form of planning; an identifier number being the best mechanism of which I can think. We have had example after example where the Department did not have a notion what initiatives were going to cost. This is an issue of money being expended, of which the Department did not inform us. A great amount of tax relief was given for the building of private hospitals, but we find that the Department of Finance has no idea how much this initiative will cost. Day after day we find out there was no notion what an initiative was going to cost. That cannot be the way to run a proper health service.

I wish to share my time with Senator Cummins.

This mess began in 2001 when the Government decided to extend medical cards to those over 70 years. As Senator Henry correctly pointed out, an assessment was done at that time of the cost the State would have to bear when that scheme was extended. However, something worse happened under the watch of the former Minister, Deputy Martin. At the time he stated that the policy of the Government was to extend medical cards to everyone over the age of 70. He made that statement first and then attempted to negotiate with the IMO in respect of the GMS contract. It was a ludicrous position to take. He was responsible for extending the scheme, but in respect of the people with whom he had to strike a rate in terms of getting the best possible price for the service he was buying, he had not even finalised negotiations. That displays incredible incompetence. Had this happened in a large company in the private sector of which Mr. Martin was CEO, he would be out on his ear. He made that announcement first, and then set about negotiating a price for the service with the people who will have to provide it.

As Senator Henry said, we now know the cost of this for the taxpayer is four times greater than the rather pathetic assessment done then. I heard the Minister of State, Deputy Power, mumbling and bumbling, when my colleague, Senator Feighan, rightly pointed out the presence of the Minister at this meeting. I heard the interview too and for the record the Minister was at the meeting last December. He arrived late, but he was there. This was not an ordinary bureaucratic meeting, but one with the key players in the Department, the people who co-ordinate the issues that must be determined. We have evidence to the effect that this was the fourth matter raised at that time.

It is right to put the former Minister for Health and Children in the dock on this issue because his incompetence relates not only to last December but goes back to 2001 when he let the secret out the bag by first giving a policy commitment and then attempting to negotiate. That man would be out of a job had that happened in the private sector, and that may well happen in a few years.

On the issue of retrospective payment, I believe this Bill will be challenged in the courts. I welcome the Bill and hope a test case will be brought. I hope the pensioners who have lost such an amount of money win the case and that the Government will have to pay up. Any time an amendment is put forward by Members on this side of the House attempting to propose retrospective action, we are informed such a measure is unconstitutional and there is no legal precedent therefor. The Taoiseach, God help and protect us, made this known in the House only a month ago when he said he did not think it was possible that legislation such as this could be brought forward, but now this legislation is before us. I hope pensioners take it on and get every last brass farthing from the State because this problem emerged due to the incompetence of the State and of a bunch of incompetent politicians who have been in office too long. They will have to pay the price for this and I hope they do.

Let us consider the former Minister of State with direct responsibility for the elderly, Deputy Callely. What more important issue was there than this one last December? He was at that meeting but nothing happened. A definitive legal assessment of the current arrangements was sought as a first step. None of this would have been done were it not for the fact that the Tánaiste, in fairness to her, recognised this hot potato, which was highlighted in the other House, and set about resolving it. The then Minister, Deputy Martin, the then Minister of State, Deputy Callely, and the other comedians in the crew would have sat on this issue as long as it took because that is the kind of mentality they have. These people would not survive in the private sector and they will not survive too long in the public sector.

We are involved in a hypocritical exercise here, which does very little for the body politic. When the banks and other financial institutions overcharge their customers we are all ready to jump up, and rightly so, and condemn them for robbing the people by way of such charges. Today we are legalising the robbery undertaken by the State in regard to elderly people. Rip-off Ireland is alive and well and we are sponsoring it if we pass this Bill. We have been ripping off elderly people, the weakest section of our community. We are copper-fastening that deception here today. There is no question but that the then Minister knew about this issue last year. He was at the meeting in question, irrespective of whether he was present when the issue was discussed. As my colleague, Senator Brian Hayes said, the then Minister with responsibility for the elderly was also at that meeting. What more do we want? They swept the issue under the carpet and but for the fact that Deputies Kenny and Perry kept raising it in the other House, it would still be swept under the carpet and people would be left without their money. This is the type of Bill we are introducing just before Christmas week. All over the country, the elderly are on waiting lists for public beds in public institutions. St. Patrick's Hospital, Waterford, is a wonderful geriatric hospital. However, week after week, because of the long queue for admission, elderly people must ask whether I can get them into that hospital. Public representatives receive many requests for accommodation in private hospitals and private nursing homes because families cannot afford, even with a subvention, to pay for the care of their elderly relatives.

This is a land of plenty which is supposed to have a caring and sharing Government. That this is allowed to happen and families are suffering is disgraceful. That there are not enough public beds must be addressed by the Government. Fair play to the Tánaiste for making some effort by giving a measly €2,000 to compensate for the incompetence of her predecessor, who should be hauled over the coals and asked to explain himself. He should resign. Moreover, the two Ministers of State involved are still in office, with one issuing statements on practically any subject, inside or outside his portfolio.

We need answers on this matter. The Government knew but did not act — that is the simple fact. It now makes a €2,000 offer. As Senator Feighan stated, if a shopkeeper overcharged somebody by €10, when the customer complained he or she would not be given back €2. This is what the Government is doing with the Bill, no more or less. It is not good enough. We should treat the elderly better than is the case with this Bill.

Most aspects of the matter have been covered. If anybody was listening to the rightful condemnation of the practices of the banks during this debate and understood what the Government intends with the Bill, we would be called hypocrites, particularly Members on the other side of the House. That is what is evident in the House today.

I welcome the Minister of State, Deputy Sean Power, to the House. This is an important Bill. I was surprised by some of the contributions by experienced Members who have served on health boards. As a former health board member, I tell Fine Gael Senators that that party spent considerable time in power when the charges were in place.

We are talking about the period since 2001.

Fine Gael did nothing about the problem.

However, the people saw fit to get rid of the Fine Gael-led Government. It is important to state that Fine Gael was in power at a time when health boards were tracking family members all over the country to try to get money from them to pay for relatives in institutions.

I have visited many elderly people who paid three quarters of their pension to the health board and were happy to do so because they were looked after. Many elderly people told me they felt living in a nursing home was like living in a hotel. These people worked hard all their lives and received pensions. They were prepared to make a contribution for their care.

An anomaly was found in the original Act. I compliment the Tánaiste, Deputy Harney, on immediately setting out to rectify the problem.

Why did not the previous Minister, Deputy Martin, do that?

Allow the Senator to speak without interruption.

The Minister of State, Deputy Sean Power, is in the House to put through legislation which will enable charges to be imposed in a proper and legal fashion. The Minister has offered to pay back some money to the elderly people involved. It must be remembered that many of these people owned property worth hundreds of thousands of euros which will be left to their next-of-kin when they die. Many are in long-stay institutions and are happy to be cared for in institutions by doctors and nursing staff.

From some contributions to the debate, one would think elderly people were not being cared for, and that we were ripping them off and selling their property. This was not and is not the case. If the country wants to look after the health care of those in long-stay institutions, the Government is entitled to some compensation from those who use the service, even those with medical cards. Many elderly people have told me that while they are giving back 25% of their pension, their accommodation is like a hotel and everything they want is given to them. These are the facts.

Many Acts have been found to be defective and have been updated through new legislation. This case is similar. Fianna Fáil and the Progressive Democrats would not be known as parties that rip-off the people. We have done more for the poor and needy in our society-——

The Government hid this information under the carpet since last year.

The Government has delivered more since 1997 for the less well-off than any Government in the history of the State.

That is correct.

We want to recognise this. The chief executive officers and senior executives of the health boards read the original Bill and knew of the charge. They erred and we have an obligation to pay back some of the money charged in error.

Just some of it.

Nobody in their senses would say that every shilling should be repaid or that the elderly should be provided with nursing home accommodation for free.

The Opposition should talk to those directly involved, not to family members who see an opportunity to put money in their back pockets when elderly relatives die, which is what some want. However, the same family members would not take care of their elderly relatives at home and shoved them into institutions. This has happened and is happening in every parish.

The Government is making a fair effort to look after the elderly, including in the context of the Bill, which is perfectly legal. From my experience of visiting people in nursing homes, they are happy to have made a contribution. They did not want to be there for free and were happy to pay, despite the fact that others are now clamouring for money. I wish the Minister of State and his officials well.

Senator Moylan made the point that the Government did more for the well-off than any other Government.

I referred to the less well-off but I include the well-off.

The point is that, proportionally, the Government has not done so. The Government had more resources than any other but when the ESRI analysed past budgets, it found that Fianna Fáil did more when in Government with the Labour Party following the 1992 elections in terms of distributing resources to the less well-off in society.

Others have referred to the potential unconstitutionality of the Bill. One of the matters that makes it obvious is the fact that subsections are being inserted to try to address this unconstitutionality. In addressing the House earlier, the Minister of State, Deputy Brian Lenihan, said it was intended:

to insert a new subsection (6) that the retrospective regularisation provision of the new subsection (5) does not apply in the case of a charge which is the subject of civil proceedings instituted on or before 14 December 2004 for the recovery of the relevant charge; [and] to insert a new subsection (7) to provide that the provisions of the new subsection (5) do not affect any other ground which may be raised in civil proceedings to debar the recovery of the relevant charge.

These are attempts to try to make the legislation constitutional but I do not think they will work. Like Senator Brian Hayes, I hope there will be a successful legal challenge to the legislation. There is a presumption that everything we do in the House is constitutional but we have a duty to ensure that we do not pass legislation that is unconstitutional. I think this Bill is unconstitutional and, as such, it would be wrong for us to enact it.

In his speech, the Minister of State referred to Government policy. He said this legislation is being introduced "to avoid needless litigation". It is not needless litigation, however, and it is wrong to call it thus. When people initiate litigation on a matter such as this, it is in order to assert their rights. The view from the Government benches is that people who resort to the courts to assert their rights are engaging in needless litigation. That is the wrong way to regard people who are trying to establish their rights through the courts. Every time someone mentions it here I will challenge that view. I know I have an interest in the matter in that I am a solicitor but I am not working as a solicitor any more.

There must be a better way of dealing with this matter. No other sector of society is treated in the way that older people are treated. The Government is giving pensions with one hand, while taking the money away from elderly people with the other. No other section of society is having money deducted in this way. If an elderly person attends a hospital for treatment, the money is not deducted from his or her pension.

This situation obtained when the Senator's party was in Government.

Senator Tuffy without interruption.

The legislation may be found to be unconstitutional and we have a duty to ensure that people are protected. I hope I will have an opportunity to table an amendment on Report Stage because we did not do so for Committee Stage. If it is in order, I will try to do so. That issue has been raised by the senior citizens' group, which referred to the adequacy of payments and the amount of money that will be left for pensioners after the money is deducted under the terms of this legislation. I understand the average sum will be approximately €35 per week. However, the senior citizens' group made the point that if an elderly person buys The Irish Times every day, along with a packet of ten cigarettes and a pint of Guinness, the money would soon be gone. Given the sum this Bill will leave pensioners with, they will have no money for clothes or Christmas gifts for their grandchildren.

I realise that Senators cannot make proposals that involve making a charge on the Exchequer but, if it is in order, a review group should be established to examine whether or not this payment is adequate. I hope to avail of the opportunity to raise this matter on Committee and Report Stages.

I thank Senators for their contributions on this important legislation. As my colleague, the Minister of State, Deputy Brian Lenihan, said in his opening remarks, this legislation is necessary in order to provide a legal framework for the long-established practice of charging those patients in long-term care in health board institutions and publicly contracted beds in private nursing homes.

A number of issues were raised by Members with which I will now deal. The Office of the Attorney General has provided advice concerning the current system of charging for long-term care and concluded that health boards have no legal entitlement to charge persons who are fully eligible, including those over 70 years of age. In light of this advice, my Department wrote to the health board instructing them to stop imposing any financial charges on fully eligible persons in receipt of health services, pending the enactment of legislation to regularise the power to impose such charges. If this loophole is not closed to allow this funding to be retained, a significant loss of resources to the health services will result. That is the reason for the legislation.

Senators have been critical of the fact that the legislation has been rushed through the Houses and while we would all like to have plenty of time to tease out legislation, unfortunately, time was not on our side in this case.

In the documentation she provided yesterday, the Tánaiste and Minister for Health and Children explained exactly the short timeframe in which we had to try to enact this legislation. The Tánaiste acted as soon as the information and advice came from the Attorney General.

It is a pity that the former Minister for Health and Children did not do so.

The Minister of State without interruption.

I wanted to put the record straight because Senator Phelan misquoted me earlier. I do not mind criticism but Senators should quote people directly instead of misquoting them. If they did so, they would be doing politics a better service. The point I made yesterday in the Dáil was that in trying to be as helpful as possible, the Tánaiste, in addition to her speech on Second Stage in the Lower House, also published documentation relating to this matter. One of those documents included the minutes and attendance of a meeting that took place on Tuesday, 16 December 2003, at which senior management from the Department of Health and Children were present, along with health board CEOs. As I mentioned, three Ministers were present, namely, the then Minister for Health and Children, Deputy Martin, and his Ministers of State, Deputy Callely and Deputy Tim O'Malley.

The point I made was that item No. 4 on the minutes concerned the long-stay charges for over 70s. The Secretary General of the Department informed us that the Minister, Deputy Martin, was not present at the meeting when that matter was being discussed. That is as much as I said about it. Let the Minister, Deputy Martin, say what he has to say about it but I do not want people to accuse me of having said certain things about him. Apart from what I heard in the interviews he has given, I know no more than Senators do about what the Minister knew.

The Minister of State with responsibility for older people was present, as the Minister of State said.

Senators should at least be fair in their criticisms. They can give out all they like about the legislation we are introducing but they should try not to misquote me.

When I say something, I would prefer to be quoted properly.

Senator McHugh referred to the 30-day period. The charges kick in after 30 days for the receipt of inpatient services or periods aggregating not less than 30 days within the previous 12 months. The 30-day period begins to run immediately the person concerned is provided with inpatient services.

Senator Derek McDowell referred to rushing the legislation and I have dealt with that point. We would all like to have been in a position to deal with this Bill in a more comprehensive way and have more debate on it but time is not on our side. If we were to postpone the legislation until next year it would have serious consequences for the health service budget. Resources are scarce enough and we want to ensure that we spend them as efficiently as possible to obtain the best value for money.

I am not sure what point Senator Brian Hayes was trying to make. Is it now the policy of the main Opposition party to withdraw medical cards from the over 70s? That would appear to be what the Senator was saying but I am not too sure.

Senator Tuffy queried the constitutionality of the Bill. This measure is being taken following advice from the Attorney General who, in turn, sought advice from Mr. Gerard Hogan, SC. Mr. Hogan is regarded as the leading expert in this field. We could not have obtained better advice and it is upon that advice that we are making these plans.

The point must be made that while the Government is being criticised and accused of doing all sorts of things against elderly people, it is generally accepted that these charges act as a contribution towards the cost of care and are seen as being fair and reasonable. If more money is repaid, even less money will be available for services. In my view it would be irresponsible not to endeavour to continue to collect these charges in these circumstances. The charges in the legislation are intended to cover maintenance of patients in publicly provided long-stay care.

The legislation will bring much-needed legal clarity to a situation which goes back to the introduction of institutional assistance regulations in 1954. It could be argued that the problem began at that time or since 1976. There is no use in kicking around and blaming this or that Government; this practice has been accepted as a fair and reasonable policy under successive Governments.

It started in 2001.

The practice has been in operation since 1976.

The Opposition was in power then.

We all regarded it as something fair and it is not an unreasonable request——


——to make of people who are receiving care and I think they would acknowledge that themselves. This is the basis for the current legislation, to deal with the issues in preserving the resources available to the health services. This is the only financially responsible way to proceed.

Question put.
The Seanad divided: Tá, 27; Níl, 15.

  • Bohan, Eddie.
  • Brady, Cyprian.
  • Brennan, Michael.
  • Cox, Margaret.
  • Daly, Brendan.
  • Dardis, John.
  • Dooley, Timmy.
  • Fitzgerald, Liam.
  • Glynn, Camillus.
  • Hanafin, John.
  • Kenneally, Brendan.
  • Kett, Tony.
  • Kitt, Michael P.
  • Leyden, Terry.
  • Lydon, Donal J.
  • MacSharry, Marc.
  • Minihan, John.
  • Morrissey, Tom.
  • Moylan, Pat.
  • O’Brien, Francis.
  • O’Rourke, Mary.
  • Ormonde, Ann.
  • Phelan, Kieran.
  • Scanlon, Eamon.
  • Walsh, Jim.
  • White, Mary M.
  • Wilson, Diarmuid.


  • Bradford, Paul.
  • Browne, Fergal.
  • Burke, Paddy.
  • Burke, Ulick.
  • Coonan, Noel.
  • Cummins, Maurice.
  • Feighan, Frank.
  • Hayes, Brian.
  • Henry, Mary.
  • McDowell, Derek.
  • McHugh, Joe.
  • Norris, David.
  • Phelan, John.
  • Ross, Shane.
  • Tuffy, Joanna.
Tellers: Tá, Senators Minihan and Moylan; Níl, Senators Browne and Cummins.
Question declared carried.

When is it proposed to take Committee Stage?

Committee Stage ordered for 4 p.m. today.