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Seanad Éireann debate -
Thursday, 10 Mar 2005

Vol. 179 No. 16

Report on Long-Stay Care Charges: Statements.

I am delighted to have an opportunity to discuss the Travers report in the Seanad. I pay tribute to Mr. John Travers for the excellent job he has done in carrying out an evaluation in the Department of Health and Children as to how, for 28 years, legal advice was not sought in regard to long-term charges for people in public institutions. When I asked Mr. Travers to carry out the task, I did so recognising his distinguished career in the civil and public service spanning 40 years. In a very short time, he has examined thousands of documents and legal opinions of the Department of Health and Children, other Departments and some of the health boards. He has done so single-handedly, with the help of one civil servant at the Department of Health and Children, and compiled what is a thorough and comprehensive report. It is a model of how we can have facts clearly assembled quickly and inexpensively in comparison to other routes we often use to discover information, which can take years and cost a considerable amount.

I intend to provide a brief history, which is outlined in the report, of how this matter arose. I will then deal with the conclusions. The most important issue for me is what we do for the future. Institutional assistance regulations were introduced in 1954 on foot of the Health Act 1953. These institutional assistance regulations provided for people to be charged for shelter and maintenance and that persons in public institutions could be charged regardless of whether they had a medical card.

The Health Act 1970 was the only major reform before the Act we passed through the Oireachtas before Christmas last. The 1970 Act has been the main legislation governing the health services for the past 30 years. In that Act, for the first time, the concept of full eligibility and limited eligibility was defined. Full eligibility was essentially defined as referring to people with medical cards. The report refers to the 1970 Health Act which defines inpatient services as "institutional services provided for persons while maintained in a hospital, convalescent home or home for persons suffering from physical or mental disability or in accommodation ancillary thereto". The report states "Under these Regulations, charges imposed are only payable by persons with limited eligibility. Medical cardholders are exempt as are persons with dependants".

This is relevant because a patient at Crooksling Hospital in Brittas, Maud McInerney, who was a ward of court, was being charged for shelter and maintenance. A case was taken on her behalf to the High Court which maintained, notwithstanding the institutional assistance regulations which provide for the charging for shelter and maintenance, that if one was a medical card holder with full eligibility and there is any element of medical care in the facility, one cannot be charged. Essentially, the court set down the position that only those in a hostel-type facility where there was no medical care could be charged.

That High Court decision was subsequently upheld by the Supreme Court but between the High Court and Supreme Court decisions, the Department introduced new regulations making it clear that one could only charge persons with limited eligibility and not those with full eligibility. However, at the time the regulations were introduced, the Department issued a circular to the health boards effectively telling them that they could move people away from full eligibility by taking away their medical cards. They made the point that they would not need medical cards when in institutional care. Therefore, by removing the medical cards, they became people of limited eligibility and could be charged. It is extraordinary but this is what happened. Subsequently, the Supreme Court upheld the decision in the McInerney case but nothing seems to have happened to implement the findings of the court. At the time of the regulations, between the High Court and Supreme Court decisions, the then legal adviser of the Department of Health, as it then was, stated it was not possible to amend primary legislation by regulation, which is significant.

The next significant date is 1978, when the Eastern Health Board obtained an opinion from two senior counsel of the time, Ronan Keane, who went on to become Chief Justice, and Thomas McCann. Mr. Keane stated clearly in his opinion that there was no legislative base to do this, which is detailed on page 17 of the report. The Eastern Health Board wrote to the Department of Health enclosing a copy of the legal opinion, which stated:

(i) the difficulties being experienced in levying charges on persons for long-stay care in health board institutions "arises from the failure of the legislature to deal with the question of charges for maintenance ... in a clear and unambiguous fashion when the 1970 legislation was being passed" and

(ii) the difficulties in such cases "can only be resolved by amending legislation".

The health board wrote to the Department which strongly advocated that "consideration be given to introducing amending legislation and at ending the present confused and ambiguous situation". Notwithstanding that advice, no legislation was introduced. Through the years, every time somebody sued a health board for levying these charges the advice from the Department of Health to the health board was to stop charging and not contest the case. When invited by the Registrar of Wards of Court to challenge the legislation, the invitation was not taken up.

This situation continued for many years. The Commission on Health Funding, which reported in 1989, drew attention to this difficulty. The health strategy published in the summer of 1994 drew attention to the fact that there were legal issues concerning long-term care and promised amending legislation. Many other reports were drawn up over the years.

In 2001, when medical cards were being extended to everybody over 70 years by virtue of their age, the issue arose again. In October 2002 the South Eastern Health Board obtained a legal opinion which it forwarded to the Department of Health and Children in March 2003. It asked for a meeting to be held quickly to discuss the legal opinion but that meeting — the famous Gresham Hotel meeting — did not take place until December 2003, nine months after a meeting was sought and legal advice was submitted. On foot of that meeting, at which the issue was discussed, the correct decision was made, namely, to seek legal advice from the Attorney General. A letter was drafted for the Attorney General, as well as background documents, of which I have a copy. A copy also exists in the line Department which prepared the letter. That letter was forwarded to the Secretary General of the Department but, as we know, it did not issue. A copy of the letter and the background file was used in October 2004 when I asked for the Attorney General's advice to be sought. Later today, I will publish a copy of that correspondence because some confusion has arisen overnight as to whether some new file was found. No new file was found but, as Mr. Travers acknowledges on page 54 of the report, a copy of the file was in the line division.

At the end of March 2004, after the letter was drafted on 27 January 2004, a meeting was held between the management committee of the Department of Health and Children and the chief executive officers of the health boards. Such meetings are frequent and usually take place, I understand, approximately twice a year. The minutes of the meeting are published with the report and acknowledge that legal advice was being sought. Therefore, everybody at the meeting was of the view that legal advice was being sought. The assistant secretary responsible in the line division attended the meeting and was under the impression that legal advice was being sought. The next meeting took place in October 2004. The minutes note that legal options were being reviewed. I mention these two meetings because the information was not accurate; legal advice was not being sought and legal options were not being explored.

When, as a result of parliamentary questions, I asked for legal advice to be sought from the Attorney General, I received it very quickly. The advice was that we were acting ultra vires and, therefore, what we were doing was illegal and had to stop forthwith. We did that and sought to bring in amending legislation. At that time I asked the Secretary General of the Department to prepare a report on the issue for myself and the Cabinet. That report was prepared for 13 December and it is included in the published documentation. It is there for all to read.

The report refers to a legally defensible position and so on. It did not contain any reference to the letter that had been drafted and sent to the Secretary General. I was not aware of that when I took the matter to the Government, nor was I aware of the long legal history in the Department. As I said at the Oireachtas committee meeting yesterday, the Government therefore made decisions based on incomplete and inaccurate information. That is why, when I became aware that a letter and a file existed, subsequent to the Government meeting I asked for Mr. Travers to be appointed to examine the issue.

The conclusions of the report are very strong in terms of responsibility. All of us in this House have a duty to be fair and reasonable. I have already said that this was systemic maladministration over many years, and that is a fact. Maladministration does not of course merely affect public servants but can also be the responsibility of politicians. Notwithstanding those comments and the findings of this report, in the five months in which I have had the honour of being at the Department of Health and Children I have found outstanding public servants who work extremely hard under enormous pressure. Mr. Travers acknowledges that.

The manner in which the Department set about drafting the legislation to establishing the HSE, a mammoth Bill which we took through the Oireachtas just before Christmas in very pressurised circumstances, is an example of such work. There are many other examples of complex issues such as the negotiations on the Medical Defence Union, which are handled by the Department of Health and Children. The Department accounts for about one in four of every euro the Government spends on a day to day basis. Unlike many other Departments it deals with life and death issues. Mr. Travers makes the point that the urgent — which clearly has to be dealt with — does not mean that the important has to be left aside, certainly not for 28 years.

In his conclusions, Mr. Travers said there were shortcomings at political levels over the years since 1976 in not probing and questioning more strongly and assiduously the issues underlying the practice of charges for long stay care in health board institutions even if, or because, the analysis and briefings being provided by the officials in the Department of Health and Children appear to have been deficient in many respects. Mr. Travers said that these shortcomings were, however, of a nature, scale, substance and order of magnitude considerably less than those of the system of public administration.

In summary, the Travers report says that the fundamental reason for the period of time that elapsed from the date at which legal concerns about the practice of long stay charges in health board institutions were known up to the request by the Department of Health and Children for legal advice from the Attorney General on 27 October 2004, lies in "long term systemic corporate failure". The report says that this failure is "principally a failure of public administration which, essentially, failed to identify, recognise and acknowledge the difference between actions and practices widely regarded as fair and reasonable and supportive of the development and protection of essential public health services and actions and practices that were legally valid".

The report notes:

The overall failure of administration was compounded by the fact that the solution to the dichotomy between what was, perhaps, admirable and desirable from an operational, societal and public health service perspective and what was legally valid was readily amenable to remedy through the introduction of a simple legislative amendment. The failure was further compounded by ignoring for many years a range of legal advices and opinions which pointed to the remedy of the problems arising but which were left to one side in the persistent belief that the practices at issue were at least "defensible" in a legal sense even if this, ultimately, proved to be incorrect. In summary, it was a case of "good intentions" not being supported by the requisite legal foundations.

Mr. Travers makes the point that all the legal opinion available to the Department and health boards from their own legal advisers was to the effect that this was not legal. He could not find any substantial legal advice which contradicted that.

What are the lessons to be learned? Mr. Travers makes a number of recommendations which we intend to implement and I want to work with the management team in order to do so. Above all else, it seems the lesson we all need to learn is that one must not ignore legal advice and not leave matters in the lap of the gods. We all need to act speedily when legal issues arise. Certainly, in 1976, after the Supreme Court upheld the McInerney decision, the fact that this was not put on a sound legal footing is incredible because in those days Supreme Court decisions were rarer than they are today. We get Supreme Court decisions very frequently these days and indeed had one yesterday. To get one is not as unusual as it was 30 years ago. Even though the legal adviser at the Department took a particular view, others took a different view.

This is not all about procedures and law but about people. The HSE says that 315,818 people were affected, though that figure is not yet verified. Most of those people have passed away but about 20,000 are still alive. All who have been in Government for 50 years have upheld the principle that one makes a contribution to shelter and maintenance and I think that principle is broadly supported in the community. People who live at home or live in the community support it anyway. A good principle, broadly supported, with virtual consensus in our society that it is the right thing, was not put on a statutory footing, so that we are now in a position where we have to identify where we can those individuals affected.

That will be a mammoth task. Some institutions are closed and I understand there are no records for them. We will have to get some outside expertise because we have never before undertaken a task of this kind in Ireland. As many people will know, there was much debate about the offshore and non-resident accounts but that involved nothing like the volume this matter entails in terms of documentation and records.

A Cabinet sub-committee is looking at the implications of the Supreme Court decision. We sought in the legislation which was the subject of that decision a legal basis for the future and to get the power retrospectively in order to protect the taxpayer. The Supreme Court held that the prospective legislation was constitutional and indeed that retrospection was not unconstitutional under Article 15.5. It held, however, that one cannot take away someone's property rights without compensation and it would be constitutional to do so only if the finances were such that it would cause disequilibrium in the public finances. Given our economic state, the court did not consider that the sums of money involved would cause disequilibrium. The figure mentioned in the Supreme Court was approximately €500 million.

The Government has to refund all those involved who were of unsound mind. It cannot use the Statute of Limitations against those persons. Regarding any of the others remaining alive, if one were not going to make refunds dating back to 1976 one would have to prove that they were not of unsound mind and I do not know how one would go about that task, never mind the trauma involved. Accordingly, repayments will have to be made to all those involved who are still alive. We may consider using the Statute of Limitations with regard to estates. No decision has been made on that because we were awaiting the Travers report and its legal implications. The Cabinet sub-committee will meet shortly to set out clearly how we intend to proceed because I know people are concerned. Those citizens of whom we speak are old, vulnerable, intellectually disabled and mentally ill.

It is a pleasure to have the opportunity to address the Travers report in this House. When I moved the legislation in this House and in the Dáil before Christmas, I said, as did the Taoiseach, that all of this was done in good faith. We were led to believe certain things and it was on that basis we made decisions. Very early on in the Travers process it became clear that there was legal advice going back to 1978. That is why, before the Supreme Court, counsel for the State did not argue that this matter was done in good faith. At the time, people wondered why that was the case. It was because, between the passing of the legislation and the Travers process, and the process for the court, the Keane judgment was discovered. That made it very clear to anyone who read it that we were not on a sound legal footing. That was certainly known in 1978 and we now know that it was known in 1976 because the Department's own legal advisers made it clear that we could not amend primary legislation by means of a regulation.

I welcome the Tánaiste and her officials to the House. I am sure that on the eve of her birthday she did not plan for this to be on her agenda.

I did not expect that information to be on the news.

I am sure she had other plans for parties and cakes but, unfortunately, this matter came to dominate.

We have debated this matter at length in this House and I thank the Leader for organising those debates. There are many worrying aspects to the matter. The Travers report is very good but I question if it is a complete report. Fergal Bowers thought he had the original folder but it now appears there is only a letter. There seem to be some documents that have not been accounted for. Perhaps the Tánaiste can clarify later if the document in the possession of Fergal Bowers was not available to Mr. Travers and if that is the case——

May I deal with this question now as I cannot remain for the whole debate? The story this morning was not accurate. Mr. Travers deals with it in page 54 of his report and I intend to publish the documents, namely, the letter that was drafted and sent to the Secretary General on 27 January and the background documentation. They were on file in the Department's line division that prepared them. They were the same papers used when I asked for legal advice in October last and Mr. Travers refers to them.

The Fergal Bowers story this morning was not a new discovery. Mr. Travers saw this file and I will publish it. On the top of the file, the legal advice from Miss O'Flynn is noted. The official wrote that Miss O'Flynn was satisfied that they should go directly to the Attorney General for advice. The note makes it very clear what was to happen. I also dealt with this issue in the Dáil earlier today.

In the report, as published, civil servants received a fair share of criticism and probably correctly so. However, politicians should also take responsibility. Ministers have many perks and bonuses but holding office also entails major responsibility. We have clearly seen that Ministers did not take responsibility for their own Department. I include the two former Ministers of State at the Department of Health and Children as well as the Minister of State at the Department of Health and Children who remained after the recent reshuffle.

A mess has been created. The Tánaiste correctly pointed out that one out of every four euro of State expenditure goes on health. We now have a massive bill outstanding but do not yet know the full figure. I got the impression from the Tánaiste's statements that it may be far bigger than we currently think. She referred to non-existent records which may in turn lead to a legal debacle, costing the taxpayer even more money. Perhaps the figure of €500 million is unrealistic. As the Tánaiste herself stated, this money could have been used for other health services. At least we now have clarity. To be positive, by forcing the issue in 2005 we might have saved another Government in 2035 from facing a massive bill. Future Governments will say, "Thank God it was spotted in 2004". It might be 30 years too late but at least it has been recognised.

A worrying feature of the report is that there is a clear conflict of evidence between the former Minister for Health and Children, Deputy Martin, and the official, Mr. Kelly. Mr. Kelly clearly remembers giving a folder containing the letters we have just mentioned with regard to the Attorney General to Deputy Martin but the former Minister cannot remember it. Mr. Kelly can clearly remember discussing the possible implications of a negative reply from the Attorney General, yet Deputy Martin cannot remember that either. In addition, we have a civil servant who clearly remembers seeing the folder on Deputy Martin's table but the former Minister cannot remember it. This is a weakness in the Travers report.

That is not true.

Did the Senator read the report?

I did read the report.

It says so in the report.

(Interruptions).

Senator Browne, without interruption. Senators will have a chance to reply later.

Can we be accurate? If the report says this, the Senator should provide the reference. The assertion is not true. The Senator should put up and give us the reference.

Senator Browne, without interruption please.

If the Senator will give me a moment, I believe it is on page 54.

The Senator referred to the Minister's desk.

Senator Browne without interruption. The Senator will have a chance to reply.

I have been debating this issue for longer than Senator Minihan.

On what page is the reference?

I believe it is on page 54, if I can locate the reference. My recollection is, and I can find the exact details later——

Is Senator Minihan under pressure?

Mr. Travers indicates that there is a conflict of evidence between the two.

He indicated that it was unsubstantiated. However, in reality, just because one person can remember something when another person cannot, does not mean it did not happen. A person clearly remembers seeing a folder on the table while another person does not. That is in the report.

This is not true.

I will return to this issue. I have it in my notes.

Is it in the report?

Perhaps we will have time to discuss it later. I will provide it to Senator Finucane when he is making his contribution.

The Senator should quote it.

Page 51, paragraph 6.

In the Dáil, the Minister stated that the issue was dealt with in detail at the meeting of 16 December 2003. The Travers report states that the issue was dealt with rapidly. This is a clear contrast and the Tánaiste should clarify that point.

(Interruptions).

Senator Browne, without interruption. Senators will have a chance to reply.

A point that seems to be lost on the current Tánaiste and other Ministers is that when one succeeds somebody in a Department, one is responsible for the other Minister's actions.

I have never heard that before.

For example, if the Department of Health and Children is being sued the case still proceeds if the Minister changes. That element appears to have been forgotten by this Government. There is a certain amount of responsibility. The contrast in the handling of the issue by the Tánaiste and Minister for Health and Children with the mishandling of the issue by her predecessor, is very stark. When I asked the Tánaiste yesterday whether she has full confidence in her Cabinet colleague, the Minister for Enterprise Trade and Employment, Deputy Martin, she failed to answer the question. This does not inspire confidence among the public.

Although I understand the Tánaiste is under pressure today, it is regrettable that she has left the House. I wished to ask her if this issue was ever discussed at Cabinet. Unfortunately, as we cannot make a freedom of information request in this regard, we will not know the answer for another 30 years. It is a very interesting question. If it was discussed, there are wider implications.

Another worrying aspect of this case concerns the inconsistent response of the health boards. My own health board, the South Eastern Health Board, sought and received clear legal advice. I commend it for having the initiative to do so. The worst aspect of this case is that patients who could not speak up for and defend themselves continued to pay the charges, while those who could defend themselves were exempted. This is not satisfactory.

The decision to grant medical cards to the over 70s was made in 2001. We still cannot ascertain the number of people who were over 70 and had a medical card, based on financial or medical grounds before 2001. It is incredible that in 2001 the Department of Health and Children underestimated the number of those over 70 and now is unable to furnish us with those details. We accept that this problem did not begin under Deputy Martin but when he decided to give medical cards to the over 70s, it should have brought the issue to the surface.

Yesterday, the Tánaiste stated that this issue was meant to be brought before the first Government in which Senator O'Rourke served under Charles Haughey in 1987. When the former Deputy, John Boland, was acting as Minister for Health for an interim period, a problem was spotted and he brought it to the last Cabinet meeting chaired by Dr. Garret FitzGerald. It should then have been brought to the attention of the new Cabinet at its first meeting. For some reason, that did not happen. Perhaps that was a failure on the part of civil servants to ensure that the issue was brought to the fore after the change of Government. There was certainly neglect under the new Government. In 2001, when the free medical cards for the over 70s were introduced, the Government should have spotted the mistake and used the legislation that was required to address this issue, but this was not done.

It is amazing to read the comments of members of the Fianna Fáil Front Bench in the Official Report of the Dáil of 20 November 1996 when the former Minister for Justice, Nora Owen, was in some difficulty about a letter missing from her Department. At the time, the then Leader of the Opposition, Deputy Bertie Ahern, stated:

Every time there is a political crisis in this House, this Government [meaning the Fine Gael-led Government] seeks to blame administrators and turn it into an administrative crisis. The report is a whitewash, trying to put the blame on poor unfortunate civil servants.

How quickly things change. I will not read out Deputy Martin's contribution as it would be even more embarrassing for him.

The Senator should read it out.

Plus ça change, plus c’est la même chose.

Speaking in the Dáil on 26 November 1996, Deputy Martin stated:

From the findings of the Cromien inquiry, it is clear that no-one is taking responsibility for the sordid nature of this debacle. It seems that civil servants must take the fall for political failure and negligence on the part of the Minister, the Attorney General and others.

That is happening again in this case.

The Bible states, "When the cock crows you will have betrayed me three times."

The Senator has been burning the midnight oil.

I was amused by the Tánaiste's assertion in the House on 23 February 2005 that the former Minister for Health and Children, Deputy Martin, would not be found guilty. The Tanáiste and, I think, Senator Minihan, were reacting to a comment I made about the possible findings of the Travers report. I asked the Tánaiste how she could be so emphatic in advance of the report's publication. I thought it made a mockery of having an inquiry if the result was known in advance. That is why I was not surprised when I saw that a senior civil servant was scapegoated and there was no political fallout. I wonder how the Tanáiste was so well briefed on this issue. Questions need to be asked about that.

This is outrageous.

It is factual.

Is the Senator casting aspersions on Mr. Travers?

Senator Browne, without interruption.

I am asking questions——

On a point of order, we have heard two inaccuracies in this House today from Senator Browne that cast aspersions on people's honesty and integrity. I do not think this can go unchallenged.

Senator Minihan will have an opportunity to challenge Senator Browne's remarks.

I resent that remark about inaccuracies. The point I made has been written about in the newspapers and has been proven. I will produce the exact section where it is stated.

The point Senator Browne made about the Tánaiste is incorrect.

The Government would not listen to us before Christmas when we told it that the Bill was unconstitutional. The Bill went to the Supreme Court and the Government still did not learn any lessons. Now, we are back again——

Three cheers for Fine Gael, where would we be without it?

Mr. Kelly, the former Secretary General of the Department, says he gave a folder to the Minister. Another civil servant——

He did not say that.

Senator Browne, without interruption.

This is pathetic. The Senator should do his research.

The Minister had a folder on his desk, according to a draft letter, that was meant to be sent to the Attorney General but was never sent — in the words of the Tánaiste "was never issued".

Read the report.

The file was not on the Minister's desk; it was in the outer office.

Senator Browne, without interruptions.

They are very tetchy today. The folder may have been in an outer office but was in the Minister's remit. The question I asked of the Tánaiste and Minister for Health and Children is fair. Two weeks ago, she predicted what would be in the report. It is fair to ask how she was able to do so. I asked that question yesterday and the Tanáiste reacted very calmly and answered the question, unlike Senator Minihan.

She did not have to listen to the Senator.

She did have to listen to me.

She did not have to listen to the Senator's inaccuracies.

Senator Browne has one minute left.

There are many issues in this that are very pertinent to the public. The former Minister, Deputy Martin, has claimed he was never given a briefing note by the Department, that would allow him to appreciate the significance of the charge issue. However, on page 44 of the report, this assertion appears to be undermined in paragraph 4.41. Prior to the MAC meeting on 16 December 2003, all Ministers concerned were provided with briefing notes on the issues on the agenda. The Minister of State at the Department of Health and Children, Deputy Tim O'Malley, told Mr. Travers "he had read the papers relating to long-stay charges in advance of the meeting". He went on to say he was aware that "if the opinion and legal advices of the South Eastern Health Board were correct, they would give rise to significant legal, operational, financial and political implications". It is, therefore, clear that the briefing that allowed the Minister of State to draw this conclusion was also available to the former Minister, Deputy Martin, and the Minister of State at the Department of Health and Children, Deputy Callely. Those Ministers either read the briefing and chose to ignore it or chose not to read it. Either way, they are culpable. Deputy Martin cannot claim he was never given a briefing which would highlight the issues. If the briefing was good enough for Deputy Tim O'Malley, it was good enough for Deputy Martin. The difference appears to be that Deputy Martin did not read the briefing. The Travers report appears to go very soft on the politicians. Mr. Travers has found wrongdoing in the Department and, unfortunately, Mr. Kelly has taken the hit.

This was going back 30 years.

The public needs to have full confidence in the Department. This matter should go further; there should be resignations at political level.

It would be advantageous to Senator Browne if somebody were to read him the report at bedtime because I do not think he has read it.

That is a patronising comment. The Senator should outline his views on the report.

Senator Glynn, without interruption.

A second perusal would seem necessary. I compliment John Travers on this report. One thing that comes through very forcefully is that for the past 29 years, a situation obtained in long-stay institutions that clearly was not legitimate. That has been borne out in this report. It took 29 years and this Minister for Health and Children and Government to put it on a solid footing. I accept that the Bill we put through before Christmas was found to be unconstitutional in a certain respect. One thing that is useful about the Supreme Court's decision is that we now have clarity on the matter; we can proceed with a sound degree of safety and put matters on a legislative footing. Even though it has taken 29 years, it is never too late to do the right thing.

The mature approach to this issue is to accept that under successive Governments and successive administrations in the Department of Health and Children, things that should have happened did not happen. There is no point in saying black and meaning white.

When I spoke earlier on the Bill, and I am on public record on this, I said people would come out of the woodwork. I heard a prize example last night. A woman entered a long-stay institution and asked to visit her favourite aunt. The reason for the visit is, I am sure, apparent to all. The staff had no recollection of the woman in question ever visiting her aunt. She was too late as her aunt had died ten years previously. I rest my case.

That is the exception to the rule.

I hate ambulance chasing. It happened with the army deafness claims and it has begun again here not merely among the legal profession, but also among some politicians. I find that offensive. I want to read paragraph 4.25 from the report:

It may be important to point out, to the extent that this might otherwise not be apparent, that the problems surrounding the custom and practice of charges for long-term care in health board institutions did not start with, or derive from, the 2001 Act. These problems, as indicated, had their origins in the decisions taken many years previously. What the 2001 Act did, as it happens, achieve was to bring underlying problems associated with the custom and practice of charges in health board long term care institutions to the surface in a way that effectively forced their resolution. The parameters of that resolution are still evolving as this report is being prepared. The process of resolution at present underway may, perhaps, have been a somewhat unintended consequence of the 2001 Budget decision which gave rise to the 2001 Act.

While the proactive action of the Tánaiste and the Minister for Health and Children and the Government came after 29 years, I repeat it is not too late to do the right thing. Future Governments and long-suffering taxpayers will be saved.

Every fair person in this House admits that several Administrations should have done something prior to now but they did not do so. The deductions taken from patients in long-term care institutions should be refunded. I reiterate that some people with little or no interest in the persons concerned will claim these refunds.

They are the minority.

I have more authority in this respect than the Senator.

There is no need to be disparaging to the vast majority of people who genuinely look after elderly people.

Senator Glynn will speak, without interruption.

Senator Browne is talking nonsense. He has not read this report or interpreted it correctly.

I know what I am talking about.

There is a clear effort being made by some of those on the other side of the House to demonise Deputy Martin. By quoting from a particular page it has been inferred that this issue was dealt with in an outer office. As a long-standing member of a local authority, a chairman of two authorities on two occasions and, to a lesser extent, a Member of this House, I can state that this is not the way these matters are dealt with. If something is on the Minister's desk then it is not in an outer office. If it is in an outer office, it is for the attention of someone else and I resent and regret that this sad occasion is being used in this way. Deductions were taken that should not have been taken and must now be repaid.

We must revert to and implement Mr. Travers's recommendations without qualification, as stated by the Tánaiste. The terms of reference as outlined on page 87 are the panacea to cure this ill. I support the Tánaiste in this regard and commend the Government for its proactive measures to put this procedure on a solid legal footing.

It is with some regret that these discussions become party political issues. Senator Browne is correct in that many people from both sides of the House over the past 17 years have called for the heads of Ministers. I have asked on at least ten occasions in that time for a full debate on the Ministers and Secretaries Act 1924, as amended in 1995, to establish what is meant by the "Accounting Officer" of a Department, to determine what is meant by political responsibility and the relationship between the two. Any lawyer would be of the view that these have to be applied reasonably and I value the Minister of State's view on this. There is a rush to judgment as part of the political process but I have outlined the necessity to forensically examine such topics as those concerning Judge Curtin, Mr. Justice Flaherty and others. Pure, naked political views on the role of the Accounting Officer and political responsibility do not help. The situation is not helped either by incorrect information or misinformation. How could any right-minded person bring this issue into the party political process? All parties have been involved in this issue.

Hear hear.

We have said this previously.

The Travers report is absolutely clear. I have read it three times and do not doubt its accuracy. In 1975 and 1976, the then Minister for Health, Brendan Corish, was a member of the Labour Party but this could have happened to anyone. His Department's legal officer gave him advice to the effect that the charge was not legal. In the officer's words, the charges would require a legal amendment and could not be done by regulation. The Minister told the then Fine Gael Minister for Finance, Richie Ryan, that he was proposing to implement charges and the latter agreed. Mr. Corish wrote a letter to the effect that the Health Act 1954 and the Health Contributions (Amendment) Act 1974 should be interpreted on the basis that those in long-term care would not be seen to have full eligibility and so forth.

There can be no doubt that this started the process. If not complete closure, resolution has been brought about in the past two months by the current Minister for Health and Children, who happens to be a member of the Progressive Democrats.

The issue in question now is what happened over the past year and what is the role of the former Fianna Fáil Minister for Health and Children, Deputy Martin. We can come to our own conclusions about the conflicting evidence but the facts are mostly clear. A briefing document was put together for the Minister at a meeting in the Gresham Hotel in December 2003 but the extent to which it outlined the importance of the charges issue is unclear. However, we know it was on the agenda and we can assume the legal advice received by the South Eastern Health Board comprised a section of that paper. We know that one Minister of State read the document and that another may not have done so. However, we are unsure as to whether Deputy Martin read it. Senator Browne is correct in that the Minister should have read it or should have had it brought to his attention. That was his responsibility.

It is clear that, whether he read it or not, the correct decision was taken at the meeting to seek legal advice. The Minister was made aware of this in the ten minutes it took the Secretary General of the Department to walk from the steps of the Gresham Hotel up the steps to the meeting room. This was a minor issue when the major topic of the day was the Hanly report, the CEOs and the Health Service Executive.

The following week the Department set up a high-level meeting to prepare documentation to implement the decisions of the meeting and to seek the advice of the Attorney General. We can assume this documentation contained all of the background information, the available advice and a letter to be signed by and from the Secretary General to the Attorney General. This was a letter that had been placed on his desk on 27 January 2004. The Secretary General recalls receiving and reading it but he does not know what happened afterwards. He claims he did not send it to the Attorney General and that he would have brought it to the Minister but has no recollection of doing so, nor does he recollect discussing it with the Minister. There is no paper trail leading to the Minister's office to indicate it ever arrived there. A senior member of the Department of Health and Children gave a verbal account to the effect that he saw a folder in the outer office of the Minister's secretariat.

He said he observed.

I want this to be clear on the record. That member understood it to be the particular folder in question, although how he read through the cover is unknown. Whether he is right or wrong, everyone accepts that there is no record anywhere of the folder having arrived in the Minister's office.

What happened next is that on 10 March the Minister had one or two meetings with the Secretary General of the Department to sign up to the business plan. Mr. Travers asked the Secretary General whether he discussed the matter with the Minister on that occasion. He has no recollection of doing so. Mr. Travers asked him whether that occasion would not have been a reminder to him that the matter had not been sent to the Attorney General and he answered that it should have been. That is all clear in the report.

Some time later there was another meeting of the same group that had met in the Gresham Hotel, but this time the politicians were not present. That meeting was chaired by the Secretary General. The minutes of that meeting indicated that the previous meeting had sought the advice of the Attorney General and this was noted by the meeting. The only person at that meeting who knew the matter had not gone to the Attorney General was the Secretary General of the Department, who chose not to inform people that they were incorrect and that it had not happened.

Some months later, in October, the issue was raised again at a similar meeting of the same group. Again, there was only one person at that meeting who knew the matter had not gone to the Attorney General, namely, the Secretary General of the Department. He chaired the meeting but chose not to inform people that it had not gone to the Attorney General.

There is a major conflict with regard to what was said to the then Minister for Health and Children, Deputy Martin, and Senator Browne raised some important points with regard to whether Deputy Martin is right or wrong. The one clincher as far as I am concerned is whether the Secretary General told the Minister. We do not know. There is in the Tánaiste's words "a conflict of evidence". We know for a fact that when the Secretary General came to brief the new Minister, he did not find this issue important enough to brief her on it. From that I must conclude that all the evidence is on the side of the former Minister, Deputy Martin, for the previous year.

I hold no party political brief on these issues. However, I believe it is important to put matters on the record. If I have a criticism to make of Deputy Martin it is, as Senator Browne said, that this was a serious and important issue which he should have followed up. I do not agree that it would be reasonable to expect a Minister to have to examine documentation that was being sent by a Secretary General to an Attorney General. That is not normal practice. Neither would it be reasonable, in terms of turn around time through the Attorney General, that a Minister would expect to have advice back from the Attorney General in a short period. It does not happen that way and these are the facts.

I move on to the matters of political responsibility and the Accounting Officer. Under the 1924 Act, the Accounting Officer is the Secretary General. He clearly made errors. To be fair, he has explained how that could have happened. The former Minister, Deputy Martin, has explained how it could have happened and so has Mr. Travers. The Department is extraordinarily busy and has never had a more difficult time than during the past two years. Anyone can understand how a hard-working person, with an impeccable reputation until this matter, could have made a mistake.

It is important to record that it is grossly unfair for people to equate this with issues such as corruption, bribery and dishonesty. This man gained nothing, there was no profit and he has suffered badly from it. At most, he made a serious error of judgment or a serious omission. He did nothing dishonest or corrupt and made no personal gain. As Accounting Officer he had to take responsibility on an accounting matter. He has taken responsibility and is gone.

Under the Act, the Minister is the person with political responsibility. Therefore, he cannot say with one bound that he is free. What should a Minister do in this situation? Is it reasonable to expect that he should take responsibility for every neglect by omission or commission in his Department? For example, if somebody at a high level in the Department did some illegal, underhand or unfair dastardly act to line his or her pockets, would we expect the Minister to take responsibility? The best analogy I can give is the recent Act passed in this House regarding the requirement of directors to ensure that they take responsibility for signing off on compliance in their companies. The directors must say that they have put in place structures to ensure they have complied in every way with what is required and that to the best of their knowledge they have acted honourably and in compliance with all parts of the law.

In this situation, the structures were in place. The structure was a paper trail. Why did they not deal with it? The simple answer lies in the three different statements of the Secretary General. The paper trail stopped at his office. He admitted that he broke the system by taking the document from his office without recording it out and that wherever he brought it, he did not record it in. He has accepted responsibility for that. Can a Minister be held responsible for that? I do not know. It is the Opposition's job to make the Minister feel responsible but it is not my job as an Independent Senator.

I look at the matter from all sides and come to my conclusion which I want to put on the record of the House. This matter is a sorry mess. I am irritated by what I have heard here over the past week about what was legal or illegal. The Supreme Court judgment was very clear. The illegality did not refer to the retrospective element but to the private property element, something in the Constitution against which Senator Ryan and I have argued for many years. It was on the basis of the dastardly private property section in the Constitution, in as much as the person's pension was concerned to be his or her private property, that the Department was found to have acted unconstitutionally and without a legal framework.

In that regard, every Minister who sat in the Department and got this legal advice over the years must be answerable in as much as Deputy Martin. There is nothing in what I have read to say that he is more or less responsible than the first few Ministers who dealt with this matter. I do not know what people did in between.

I welcome the lucid argument put forward by Senator O'Toole and previous speakers. On behalf of this House I thank Mr. Travers for his report which is clear, lucid, understandable and sharply and crisply written. I welcome that in any report. This report is an example of what can be done when the job is given to a competent person who concentrates on it. The report requires at least three readings, an initial cursory one followed by more detailed reading. I read it twice yesterday and once this morning and each reading confirmed my estimation of the report. It should be recorded that Mr. Travers has done the State a service.

I was struck by how the report is a litany of "nearly there but not done" or lost opportunities. It is like a novel of lost opportunities. There were many occasions on which the matter almost came to the Cabinet table, but did not and then lapsed for another few years. The report clearly points out that the starting point was 1976. There were missed opportunities in 1987, 1989 and 1994 when the Government health strategy publicised the matter and said amending legislation would be made. It never happened. The reason we are concentrating on the years 2001 to 2004 is that they became the pivotal three years because of meetings, including in the Gresham Hotel, etc.

Mr. Travers clearly points out that there were degrees of culpability. In a particular section of the report he points out that, perhaps, Ministers should have poked around and sought further information. However, he says the greater culpability was on that part of the public administration which did not see to it that this matter was given the highest priority. If it had happened in 1976, for example, the cost would be negligible. However, this is 2005 and we are paying the piper. It is correct that this should happen because elderly people suffered losses in the intervening years. The Minister referred to having to get an outside agency to correlate all the information because it is a major task, particularly given that a number of institutions no longer exist and records are not available.

I would like to take up Senator O'Toole's point. If we want to go down the route of picking ministerial villains, Ministers of all Governments bear responsibility but one cannot pick out a period and a villain, put the villain's hat on him or her and put him or her in a corner. The report highlights numerous incidents of ministerial culpability.

I must correct Senator Browne's misstatement. He stated the Secretary General reported the file was on the Minister's desk.

I meant the outer office.

When the Senator is appointed to a Department, he will understand there is a significant difference between a Minister's desk and an outer office, in which there are several desks. It is wrong of the Senator to make that statement and he should read the report again.

On a point of order, the folder, which was in the Minister's general office, has gone missing.

The Senator did not say that.

That is why I am correcting myself. When one is being heckled, it is difficult——

Senator O'Rourke, without interruption.

According to Mr. Travers, a folder containing the January 2004 submission was observed by another official of the Department, who would have recognised it and was aware of its significance. Every file I received when in office looked the same as the preceding file and the following file. The official was sharp. Mr. Travers report reads, "In the outer office of the Minister's office at some point in early 2004...". I was Minister for Health. A door leads from the Minister's office to the outer office, in which there are four or five desks. It is incorrect of the Senator to state the folder was left on the Minister's desk.

His advisers had it.

Senator O'Rourke, without interruption.

Government Members are playing word games. The Secretary General clearly recollects discussing the implications of the file. It is in the report.

The Senator cannot keep interrupting.

Perhaps the Senator should be provided with a tour of Hawkins House.

I will bring him. The Secretary General of the Department will no longer be the Accounting Officer as that function has passed to the Health Service Executive. However, I have always been of the opinion that the Department should have two Secretaries General, one in charge of everyday fire brigade issues, which erupt about ten times a day, and the other in charge of legislation and policy-making. That has not transpired but the idea has been floated for a number of years. The Accounting Officer has been deployed to the HSE and perhaps there is no need for two Secretaries General.

Pressure of work is significant in every Department but it is enormous in the Department of Health and Children. I was Minister for nine weeks and that is why I am aware of the geography of the building. Two weeks were taken up by Christmas but, even in the seven weeks I worked there, I grasped how much work is involved. However, that does not obscure the fact that long-stay charges were a high priority demanding attention. The issue was not attended to and that remains the mystery at the heart of this matter. The Secretary General would have known well, given his vast experience, that this issue needed to be addressed and brought to the Government's attention. I fail to understand why the Secretary General and his predecessors did not attend to this issue with alacrity and celerity.

Files are sent to Ministers, initialled, dated and forwarded and everything is logged but, on this occasion, the file was not logged. That remains a huge mystery. The Secretary General said he cleared his desk every 24 hours, which is an admirable trait. I do not know what recesses of mind led to the folder not being forwarded. My conclusion is that it was because it involved a significant financial commitment. The Department, as always, would be battered by the Department of Finance because it is a high spending Department. I approve of the Department of Finance being the watchdog of the public purse, otherwise we would be a profligate nation. Perhaps in a recess of the Secretary General's mind he thought, "Oh God, this is going to be another huge row over finance, how are we going to cope with it?" However, if that was the case the probity of the system and the public service ethos of individuals should have risen above that.

John Travers states at the beginning of the report that he will not give a judgment on morality and asks where one could find a person who could judge on the morality of this issue. I applaud the Minister for grasping the issue. She must have thought, "Oh my God, what I have come into? Angola writ large. How will I cope and manage?" However, she grasped the issue and produced the report. As a result, she has exceeded all my ideas of her. She has a strong record of public service and trust. The Government has also grasped the issue, although it cannot have welcomed it. However, it must be dealt with and I commend the Minister on her business-like approach to the issue and her sense of civic duty.

In the 1970s the German Chancellor, Willy Brandt, resigned because a secretary in his office was found to have been involved in espionage. There was no suggestion he knew, there was no suggestion he could have known and there was no suggestion of wrongdoing on his part. Willy Brandt said he was responsible for what happened in his central office and resigned.

He appointed the secretary.

There is no evidence the secretary was appointed by Willy Brandt, who made it clear he did nothing wrong but said he should have known and was responsible. It is often difficult to get through to the Government that the position of Minister is one of responsibility. Many people think it is about glory but it is about responsibility, to which I will refer later.

The Minister stated the first lesson to be learned from the report was not to ignore legal advice. None of us could avoid the question of ignoring legal advice. The real advice to give to Ministers is to identify that for which one is responsible. Ministers are responsible for legal, constitutional and financial issues. Those are the three major ones that I can see. It is a reasonable expectation that any Minister in Government would not wait to be told that there is a problem. The Minister should ask whether there are problems of which he or she should be aware. That is what taking responsibility is about. If the Minister lacks the initiative and managerial enterprise to ask what are the problems of the Department, passing over responsibility and saying that it is not his fault because he was not told, he is not accepting responsibility. The job of a Minister is not simply to take credit or accept glory, although it is nice when that happens; it is to take responsibility.

We have an extraordinary situation in our political system where very large amounts of work are done by Government quangos, and Members of the Oireachtas cannot question Ministers about decisions made by a whole range of bodies. I assume that the HSE falls into that category. However, every major piece of good news from all those agencies will still be announced by a Minister who is not responsible for their decisions. Let us make up our minds once and for all in this country. Either Ministers are responsible, in which case they are responsible for everything, or they are not, in which case they should butt out and leave such decisions to the relevant agencies. For Ministers to claim the glory while denying the responsibility is to make a mockery of the whole idea of political accountability. That is what is going on here.

I am tempted to quote the wonderful, flowery language of the former Minister for Health and Children, Deputy Martin, when he was talking about someone else in Government, but it would take up too much time. Suffice to say that members of Fianna Fáil in Opposition are capable of using language that no one in this House has used today about Deputy Martin's position. They used extraordinary language about a far less significant issue, important though it was — the administrative failure of a judge in the Special Criminal Court. They used astonishing language about his incompetence, all of which amounted to saying that one could not blame the Civil Service for the Minister's responsibility. Suddenly, in Government, we have the opposite. Fianna Fáil discover that it is not the Minister's fault at all but that of someone else, since he was not informed of the problem. The logic defies me. I wonder about the Government and Ministers. Before someone else says it, I know that I will die wondering.

The Senator should be more optimistic.

Leaving aside the politics, let us consider the recommendations. When I looked at them on page 93, my jaw dropped. Most of what is recommended about how to run a decent organisation could have been written by a first year student of business studies. Did it really need €2 billion, or at least hundreds of millions of euro of taxpayers' money for the Department to go astray? We do not know the exact figure, so we should not exaggerate it. Money taken from people is now being paid back. Did it really take that to happen for us to be presented with such recommendations? They include the following: that Governments should get the legal basis for decisions right; that there should be an analytical capability in a Department; that there should be transparency — we all approve of that; that there should be records; that there should be some capacity to assess risk; that a proper system of recording decisions should be in place; that we should have some way of identifying which issues are important; and that we should have an understanding of issues of political sensitivity. I will not go through them all, since I do not have time.

For God's sake, we are spending almost €40 billion a year through Government bodies, yet I am now told that those things were not self-evident to those running the Departments. On this I am deliberately trying to avoid being party political. It is mind-boggling that it might be so and I blame politicians for that, since they are responsible for how Departments are run. They may not want to do it or accept it. Civil servants are supposed to do what the Minister wants and assist the Minister in that regard. If the Minister does not want to make Departments work properly, all those things are left out.

I am flabbergasted by these recommendations. It is always a good idea to look at recommendations in reports. I thought that I was going to see high-flown, serious material. Instead, as I said, I found what were almost schoolboy or schoolgirl ideas, so self-evidently true that it is astonishing they are not already in place.

I would like someone to answer this question. Is there now a Government decision that these recommendations will be implemented, not just in the Department of Health and Children but in every Department? The response should be nothing less than that. If there is a lesson to be learnt for the future, it is that those are necessary conditions for any sense of good governance. Are there any other time bombs waiting to explode in other Departments? Has every Secretary General been asked whether there are issues similar to this in scale or potential consequence in his or her Department? If they have not been asked, why not? I would like to know if that has happened.

The intricacy with which Ministers and Departments use language has always fascinated me, and the Department of Health and Children is still holding on to dubious interpretations of the distinction between entitlement and eligibility. It did so in the teeth of conclusions drawn by the Ombudsman in 2001. The Department is still disputing what other people took to be the meaning of the words "entitlement" and "eligibility". It invites a ministerial decision, since Ministers cannot have been aware of that.

I return to the famous meeting in the Gresham Hotel; something about it fascinates me. The reason the Minister for Enterprise and Employment, Deputy Martin, is being criticised and has been invited to consider his position is that he is the only former Minister for Health and Children still in Government. What I say would apply to any Minister who had been there long enough to have been culpable in the way in which I believe Deputy Martin was. What could he have done? In the 2001 health strategy, for instance, there is, as I am sure Members are aware, the intriguing phrase, "eligibility arrangements will be simplified". It states:

The Ombudsman has drawn attention to the uncertainty surrounding the eligibility of older people for long-term residential care. Clarification of entitlement in this regard will be given particular attention in the general review of legislation on entitlement.

How did that get into the 2001 health strategy without some discussion of who would pay for it? I do not care how it is clouded politically. How did it get into a document that went through Cabinet and was approved? How did such a reference get in without someone somewhere asking what it would cost and who would pay?

Then there was the Ombudsman's report of 2001, in which he clearly drew attention to those anomalies. How did that happen? The only conclusion to which one can come is that there are conflicts of recollection between the Secretary General and the Minister. I say no more than that; I do not believe that either of them is the kind of person who would tell lies. It has never been my style to accuse people of that. How did the then Minister process the decision to issue medical cards to everybody over 70, a decision that I have publicly supported on many occasions, without him or the Department of Finance asking how much it would cost? How is it possible that all this history never arose in the process of making that decision? That is a mind-boggling picture of incompetent decision-making for which the Minister is responsible.

The Minister says he cannot be responsible for what is not drawn to his attention. I said on the Order of Business this morning, and I repeat it now, that if that is the picture of a Minister for Enterprise, Trade and Employment that will be conveyed to chief executives of multinational companies, a Minister who says he is not responsible because nobody told him about it, Ireland will suffer. Most of the CEOs of those multinationals, if something of this scale happened, would lose their jobs on the spot, not because nobody told them but because they did not have the wit and the nous to ask. That is the fundamental question. There has been too much talk about what the Secretary General told the Minister. The fundamental question is the reason the Minister did not ask questions that were obvious to other people and the only conclusion one can come to is that the Minister did not ask those questions in that period because he did not want to know the answers. That is an abnegation of responsibility and it is the reason he should resign.

I welcome the Minister to the House and compliment Mr. Travers on his report. It is an example to us all of the way a complex issue can be dealt with in a short timeframe and a report of this nature produced. The State owes a debt of gratitude to Mr. Travers for the report he has produced.

The principle involved here is that all those in receipt of publicly provided residential long-term care should make some payment towards accommodation and daily living costs if they can afford to do so, just as they would if they were living in the community. That principle has been accepted over the years by successive Governments. That was the practice from 1954 when the institutional assistance regulations were in place. The new Health Act was brought forward in 1970 and it is clear that is the timeframe in which this conflict arose because this practice lacked the necessary legislative support. It is unfortunate that minor legislation did not put this practice on a proper legislative footing because we would not have the problem we are facing now. The records show the position was known by the Department to be flawed.

A number of key dates have been highlighted on which this problem came to attention. The first of those is 1976 in the patient service regulations when Mr. Corish was Minister. We then move on to April 1994, when Deputy Howlin was Minister for Health. The Government health strategy at that time, Shaping a Healthier Future, stated clearly that those in public care were still governed by legislation which is now recognised as inadequate. It is unfortunate, in respect of all those key dates, that the opportunity that was presented to correct this problem was not taken. The 1978 Eastern Health Board legal opinion drawn up by Mr. Ronan Keane, senior counsel, again highlighted the problem. Those who play politics with this issue should examine these key dates and the people who were in office at that time and agree that successive Governments, Ministers for Health and their administrations had opportunities to correct this problem but failed to do so.

With regard to the current Minister for Health and Children, Deputy Harney, it is fair to say that more has happened on this issue in the past 30 days than happened in the preceding 30 years.

As a result of the Supreme Court decision.

When this matter was brought to her attention, the Tánaiste quickly sought legal advice as a result of questions from Senator Browne's party in the Dáil. She rang the Attorney General and since then the process has moved forward at an accelerated pace if one measures it against the preceding 30 years. She stopped the practice immediately when she was told it did not have legal support. She brought forward legislation and admitted, and repeated it in the House this morning, that the legislation she brought forward on the retrospective payments was based on incomplete and inaccurate information. Reading the report one would think that, like the third secret of Fatima, there was some sort of mystery surrounding this that was shared among a few people but not everyone.

The other key point is that the Tánaiste commissioned the Travers report. It is clear she was not briefed on the seriousness of this issue when she took over the portfolio.

With regard to the famous letter we are talking about, which the Tánaiste has indicated she will bring that into the public domain and publish later today, I would be interested to know for whose signature that letter was prepared. If it moved from the Secretary General's office to the ministerial office, was there a memorandum or a cover note to the Minister? These are interesting points because if a letter came to me for signature and I wanted to move it up the line to the Minister, I would do so without putting a memorandum or a covering note on it. These are interesting points and I look forward to seeing that letter later in the day.

In the judgment at section 5.37 of the report, Mr. Travers has clearly outlined the flaws at administrative level and questioned issues at political level. Senator O'Toole clearly set the record straight earlier and gave a good analysis and synopsis of the report in his contribution to the House. The report clearly states that the greater culpability lay at administrative rather than political level. We must be clear about that when we want to play politics with these issues. The report states:

At political level . . . There is, however, no evidence on the files which I have seen in carrying out this examination that any Minister . . . was fully briefed to the required extent on the relevant issues surrounding the problems associated with the long stay care charges. I have pressed, without success, the Department of Health and Children for documentation on any such briefing . . . . The shortcomings of Ministers in this area, however, are at a significantly lesser scale, substance and order of magnitude to that of the system of administration.

Those are key issues.

It is unfortunate that we are in a situation where some 315,000 people have been identified who will be the subject of some form of reimbursement. Also, the approximately 20,000 people who are still alive, going back to 1976, will have to be reimbursed. Whether the Statute of Limitations will be applied in the cases of those who are deceased is a matter for the Government to decide. These are the decisions facing the State and the taxpayers because it is not as if the Government has a chest of funds under the table to meet this bill, which the taxpayer must foot. If that bill reaches the highest figure that has been quoted, namely, approximately €2 billion, that will have major implications for the services provided in this State.

There are two issues on which I wish to comment. I took issue with the inaccuracies uttered earlier by Senator Browne, who is now in the Chair. I did so because in my opinion he was mischievously and vexatiously interpreting material from the report for political reasons. The Senator was wrong to do so. He clearly stated that the file and folder had been placed on the desk of the Minister but the report does not state that this was the case. Senator O'Rourke has clarified the position in that regard. A mistake or a misunderstanding is fine but I interjected because Senator Browne was quoting inaccurately from the report. That was wrong.

The material was placed in the Minister's outer office, where the special adviser was located. It is only a minor point.

There were two offices.

I accept that Senator Browne is in the Chair but I am merely pointing out that I interjected earlier because he referred to the Minister's desk. In itself, this implies that the file was there for the Minister's perusal.

The Senator should not be trying to draw me into a dispute while I am in the Chair.

There is no evidence in the report to indicate that the file was there for this purpose. When the Tánaiste publishes the relevant correspondence later today, I hope clarity will be brought to that matter — particularly if there is a covering note or memo to the Minister which suggests that the file was passed to him for his attention.

If we are going to debate this issue, we must read the report accurately. People must not interpret from the report what they want to interpret. Such interpretations may be made for political advantage or gain.

Senator Browne also stated that Mr. Travers's report was biased and unfair in the sense that it is stacked against the public service and soft on politicians. Mr. Travers clearly indicates in the report the inadequacies at political level and those at administrative level. He should be complimented on that. Aspersions should not be cast on the record of Mr. Travers who has been a public servant for many years and who has done the State a great service in producing this report.

Comments were also made about the Tánaiste, Deputy Harney, and her knowledge of this matter. It is a compliment to her that she was able to come to terms with this issue and the complexities attached thereto. As the line Minister, she would have initially investigated the matter. As a result of that investigation, she clearly thought it necessary that Mr. Travers should carry out an independent investigation. Of course the Tánaiste is versed in and holds a view on the issues and took responsibility for them.

The Senator is missing the point made by Senator Browne.

Suggestions that the Tánaiste in some way influenced the report are politically motivated and unfair and they cast aspersions on the reputation of Mr. Travers.

If we are going to play politics with this issue, we must be honest and accurate in our interpretations of the report. One can quote from various different sections of the report. In reality, however, all the issues raised, conclusions reached and recommendations made in it must be taken in context. We cannot be selective or engage in cherrypicking.

It is unfortunate that Mr. Kelly is taking the brunt of the blame for this matter at present. We must be conscious of his long public service and also admissions in his report, be they in respect of errors of judgment or omission on his part.

Lessons have been learned and I hope the recommendations outlined in the report will be embraced by the Government and implemented as soon as possible. We must ensure that a scenario will not be created whereby taxpayers will be exposed to a huge bill by people who do not deserve to make claims. Those who make genuine claims should be acknowledged. I regret the fact that certain members of the legal profession and politicians are choosing to become ambulance chasers on this issue.

I am aware of two politicians who have been described as ambulance chasers and who have advertised for elderly people who may want assistance or advice on this issue to contact them. I do not blame them for this because if people try to contact the helpline in Tullamore, they will be waiting a long time for the information they require. These individuals might be better off taking the short-cut and contacting politicians.

People tend to nit-pick in respect of quoting the Travers report. A statement on page 54 of the report from the Minister for Enterprise, Trade and Employment, Deputy Martin, indicates:

However, this is very different from discussing the specific point that a charge was being illegally levied since 1976 and that action was required to regularise the situation. The fact is that this was not drawn to my attention either formally or informally at any time.

I saw an interview with the Minister on Sky News Ireland last night and he stated that he was not aware of the issue and that it was never drawn to his attention. This is a senior Minister who was appointed to his post in January 2000 and who has a great deal of experience. He has, in many instances, been hailed by the media as a potential future Taoiseach. In my view, as a seasoned Minister he would have been aware of what was happening around him.

In January 2001, 2003 and 2004, the Ombudsman specifically referred to this issue. Every Member of the Houses would have received copies of the Ombudsman's reports. It is interesting that in January 2001 the Sunday Independent carried a headline to the effect that thousands of medical card patients had been charged for public health care. The article to which this headline refers says that State-designed systems saved the health service €1 billion. This article appeared a full year after the Minister’s appointment. However, the Minister has indicated that he was never told, either formally or informally, about the matter. Ministers have the support of many spin doctors. If I was a Minister and I had not read about matters in the newspapers which related to my brief, I would fire all of my spin doctors on the basis that they had not done their jobs.

I refute claims that the Minister did not know what was happening, particularly in terms of the legal interpretation that these charges were invalid. In 2001, Deputy Martin introduced medical cards for those over 70 years of age. The Supreme Court's assessment indicates that, if anything, this legally underpinned the situation in terms of the charges being invalid. What research did the Department of Health and Children or the then Minister carry out in respect of introducing medical cards for everyone over 70? It was known that an election would be held in 2002 and account of this may have been taken in respect of many of the decisions made at that time. We are aware that the research carried out was limited and that the number of people involved could not be quantified.

All Members deal with the Department of Social and Family Affairs, which I regard as an efficient organisation. If the Department of Health and Children had wanted to obtain a tabular assessment in respect of the number of pensioners in the country and the number of these who were over 70, the Department of Social and Family Affairs, particularly in light of the type of computer records it possesses, could have supplied it. However, the scheme for granting medical cards to those over 70 was introduced even though it was not possible to quantify the numbers involved.

In my opinion and in light of the newspaper headline to which I refer, many of the decisions made in 2001 took account of the fact that a general election was to take place in 2002. Those in authority would, therefore, have been afraid to even look at what was happening with regard to subventions on the basis that people would have to be recompensed and that this would have reduced the size of the war chest available to fight the election.

It has been stated that the then Minister was not available for the meeting in December 2003. There is a conflict of opinion between him and Mr. Kelly in that regard. Mr. Kelly states that he informed the Minister about the matter under discussion on two occasions. We cannot assess who is telling the truth and who is not doing so. It is clear, however, that someone is not telling the truth. Mr. Kelly will probably not speak out on this issue on the basis that he has got a new job, with a salary of €168,000 per year, as chairman of the Higher Education Authority. The current chairman is due to retire and the position was due to be offered on a part-time basis for the future. However, the Government had to find a niche for Mr. Kelly because if the new appointment had not been made, he might be in a position to say much more about this issue. I am tired of Government spin doctors trying to tarnish everyone by telling the public that this all goes back to 1976. It is only in the past few years that this has come before the public in a significant way. When the former Minister for Health and Children, Deputy Martin, appeared on television to say that he knew nothing about the situation, he was not being factually correct.

What are the special advisers to the Ministers of State doing? It is obvious that they are supposed to be a conduit between the Department and the Ministers. To what degree were they effective regarding this issue? I believe that they were completely ineffective or if they were effective, then they were being ignored.

Mr. Travers refers to special advisers and where they fit in between the Department and Ministers. The Minister has serious questions to answer. Once he goes down the road of denial, he has to keep it up, which he has done throughout. He must be blind if he does not read the newspapers and recognise the situation in which he finds himself. If I was a Minister and I read these reports, I would ask serious questions of my Department as to how factually correct are such reports and if anything could be done about it. However, this occurred in 2001. The Government could not take serious action in 2001. After all, free medical cards were to be given to those over 70, which would look good in 2002 when it was seeking re-election.

Where were the Ministers of State? They attended the meeting. Deputy Callely wrote to me on a regular basis regarding the elderly and what he was doing for them. These were unsolicited letters. He said at that meeting that he spoke to the Taoiseach and to the Minister. He may have been acting the big man but to whom did he speak? He had a cursory discussion in the Dáil with the Taoiseach and that was it. If I was a Minister in that Department and my Minister of State did not tell me what was happening in my absence, I would have him replaced. There are serious questions to be asked of the Minister. Whatever spin is put on it, the reality is that the buck stops with the Minister. The Public Service Management Act 1997 states that the Minister is responsible for the functions assigned to his or her Department. The senior civil servant in the Department has been made a scapegoat in this affair.

When Fine Gael was in power for a few years, it was subject to savage attacks on a regular basis by the Opposition regarding accountability and stewardship. Senator Browne is correct on that issue.

The Senator's time is up.

That is regrettable as I have much more to say.

I welcome the Minister of State and his officials to the House. I congratulate Mr. Travers on producing such a comprehensive and speedy report. He was appointed on 16 December and worked throughout Christmas and the new year so the report could be put on the Tánaiste's desk. In summary, the Travers report states that the fundamental reason for the problems we now face lies in long-term systemic corporate failure. The phrase "long-term" covers a 30-year period in which the problem was not properly dealt with. The report states that the Department of Health and Children was well aware of legal concerns surrounding the practice of charging when it was introduced in 1976. These concerns persisted and continued to be articulated anew right up to the present. On that basis, it is absolutely wrong to make a political scapegoat out of any individual Minister or to hold any Minister responsible for erroneous activity over three decades.

In this 29-year period, there were 16 Ministers, seven of whom were not from Fianna Fáil or the Progressive Democrats. They were all senior Ministers and they served for 11 years of the 29. Senators O'Toole and O'Rourke rightly pointed out that it is wrong to scapegoat any politician in this case, particularly a Minister. Page 39 of the report states that the problems did not derive from the 2001 Act. They had their origins in the decisions taken many years previously. I will make that point to Senator Finucane.

The Senator must address the Chair.

The Senator should look at page 158, paragraph 5 of the report.

This problem should have been dealt with many years ago. It is unfortunate that the present generation will have to foot the bill.

I would like to associate myself with the statement made by the Tánaiste yesterday and this morning in the House. She recognised the excellent professional work and achievements, as well as the public service commitment, of the Department of Health and Children. Hindsight is an easy option. This problem should have been dealt with properly by us all. Shame on us.

Shame on the Government.

Shame on all those people and politicians of all hues who have ignored the problem.

Page 91 of the report refers to the political shortcomings but they are less than those of the system of public administration. That is what Mr. Travers thinks and we either accept his report, warts and all, or we do not. The important thing is to move on and ensure there is no delay in repaying those overcharged. I have no doubt that it will be done. It is unjust to blame any individual for a badly-administered system which has lasted more than 30 years.

Carrying out my work as a Senator, I got to know the Secretary General of the Department of Health and Children. I always found him very supportive of me and other councillors in providing information on the Department. I believe that the Secretary General, Mr. Michael Kelly, is carrying the can for this report.

Mentioning names is not a good idea. The Senator might have a good opinion of the individual but others may not and that is the problem.

This Secretary General is carrying the can. He is the sixth Secretary General to take this job in the past 30 years. He is an outstanding public servant and I support what Senator Quinn said yesterday about the collective error.

I would also like to support the Minister for Education and Children——

I might have erred in telling the Senator not to mention that particular name, because it was mentioned this morning. I apologise for that.

That is fine. The Minister for Education and Children spoke about how she had the honour of being appointed by Charles Haughey to the Higher Education Authority for a number of years when he was Taoiseach. She also stated that Michael Kelly's breadth of expertise and his proven track record in the area of structural reform will allow the Higher Education Authority to give leadership and direction to the wider reform agenda in the higher education sector. I have a business relationship with Mr. Kelly, but I do not know him on a personal level. Senator Finucane has just left the Chamber.

The Senator may not refer to Members who are absent.

I am sorry.

Her time is almost up.

No. I will wait until the Minister of State has finished. I would like to speak and refer to a Senator who was previously here in the Chamber. I want the Minister of State to hear what I am saying. I want to put on record the fact that, in future, the relationship between Ministers and senior civil servants will be different. As is currently happening in the United Kingdom, the role and number of special ministerial advisers should be examined.

I call on Senator Leyden, who has four minutes.

The Minister of State is not always right.

No matter who is here, it is not in order for the Minister of State and Senators to have a chat between themselves. I call Senator Leyden.

I did not say anything of consequence to the Senator.

I welcome the Minister of State to the House. The report has been exceptionally well prepared and we owe Mr. John Travers a debt of gratitude. He has put the whole issue together clearly. I have read the report in detail and it is a pointless exercise to go back over every detail in it because people can read it for themselves. This issue goes back a long time and all the former Ministers and Secretaries General are named in this regard. Mr. Kelly is only one of the Secretaries General who had responsibility in this area. In the circumstances, I believe he is being very honourable in taking up the new appointment. I do not think he wanted to engage in further debate on this issue.

The matter is now being dealt with positively by the Government. As the Tánaiste said, there are 315,000 possible beneficiaries, 20,000 of whom are still alive. We should move forward, in accordance with the Supreme Court's decision, to provide funding for those individuals to which they are entitled and of which they were illegally deprived by the State. The factual position is contained in the Travers report and we should now move on. The blame game is finished and Members of the Oireachtas cannot benefit from going into the circumstances surrounding this affair.

From 1987 to 1989, I served in the Department of Health and I want to make it clear that I was not delegated any responsibility for anything in this area. The record shows that the Government makes decisions concerning the delegation of specific responsibilities. However, the current responsibilities did not exist in the 1987-89 period when I served in that Department. I want to make that clear because people may try to be mischievous in that regard.

Particular areas of responsibility can be delegated to a Minister or Minister of State by order of the Cabinet. However, no Secretary General or other departmental official will report to a Minister of State concerning an area for which the Minister of State is not responsible.

The Senator should conclude.

Do I not have eight minutes?

No, four. The Minister of State has to reply.

I am sorry.

I told the Senator he had four minutes at the outset.

That is fair enough. There is a case to be made on recompensing people. The Minister of State is an eminent senior counsel. The issue of a statute bar must be examined to see how far we can go back in order to recompense those involved. I take exception to the exploitation of this issue by particular politicians who are doing so for their own political benefit, not for the benefit of the individuals concerned. Like other Members of the House, I am dealing directly with members of the public in this matter and I have assisted people in preparing forms and submitting them to the relevant Department.

A sum of €15.5 million has been sent back to approximately 8,000 medical card holders in long-stay hospitals. I have been in touch with some of those people but nobody has confirmed that they have received the €2,000 payment. Perhaps the money has been paid into their accounts and, if so, I appreciate that.

I require clarification on a few issues.

The Senator should conclude because the Minister of State must reply to the debate.

I urge the law firms to lay off in this regard. They should be legal eagles, not legal vultures as far as the elderly are concerned.

I thank Senators for their contributions. One of the most important conclusions drawn in this report is that there was nothing wrong with the State's practice of making deductions from persons in long-stay, free residential care. There is a recognition running through the report that it was a proper and appropriate practice.

In his report Mr. Travers recognises the enormous financial constraints that operate in the Department of Health and Children. As a result of discussions in this House, every Senator is also aware of those constraints. Whether by way of Adjournment motions, statements or debates on substantive motions, Senators frequently raise issues concerning the Department's provision of health and social services in their areas and elsewhere. I have always found that Senators have a keen awareness of their national responsibilities, in addition to their knowledge of local conditions. In that context, this was an entirely reasonable practice for the State to engage in as regards the provision of nursing home care. After all, many people have to contribute from their own resources, and do so gladly and willingly, for the care of older persons who require residential care. No question of compensation for those persons has arisen in this entire saga.

The question must be asked as to why legal doubts about a practice that has existed in the State since 1954 were not dealt with earlier within the Department of Health and Children. That is what the Travers report is all about. While much has been said, it is the function of Opposition Senators to raise questions about political issues. That is understandable and I do not take from their right to do so. Senator O'Toole made a reasoned contribution in which he outlined the respective roles played by the leading parties involved in recent times. He laid certain facts before the House which would have to be taken into account by anyone who examines this matter dispassionately.

No political blame can be attached to either the Minister or the Ministers of State. As a minor historical footnote to this matter, I was not in a position to attend the meeting in question and, of course, I am recorded as apologising for my absence. Senators may also notice in the report that Mr. Travers was critical of the fact that the papers for that meeting were not briefed to the participants at the meeting until late in the afternoon of the day preceding it. In fact, I never saw the papers of the meeting because my private secretary had not been in a position to see me before the time of the meeting. She asked me if I wished to see them and I inquired of her whether any matters pertaining to my own delegated area of responsibility were in the papers. When she advised me that there were not, I indicated that I did not wish to see the papers.

Mr. Travers has captured well in his report the tremendous sense of the urgency of business in the Department. The Secretary General was a very diligent person who was unfailing in his courtesy. He was under tremendous pressure of work — the organisation of the EU Presidency lay ahead of him in the months following that particular meeting. That was a substantial operation which we all know brought great credit on the country. The Department of Health and Children had to play its part in the organisation of a huge number of visits to Ireland, which related to its area of responsibility.

In addition, the Minister and the Government had decided to embark on a widespread programme of health reform, grounded on a number of reports which had been under public discussion. Apart from that, there is the constant sense of crisis and constraint in the Department and, as Senator O'Rourke said, the scarcity of resources. A famous economist once said that a proper definition of economics was the science of allocating scarce resources. In a sense, in the Department of Health and Children — more than in any other branch of Government — that is what public administration is all about. We cannot do enough for the handicapped, our public hospital services or primary care. In the area of my responsibility, we cannot provide enough social services for those who are vulnerable in whatever respect, whether they are old, infirm, young or at risk from one of the many contingencies which afflict us in life. All of these matters fall within the province of the Department of Health and Children.

I thank Mr. Travers for his work. The Oireachtas Joint Committee on Health and Children will examine the matter in greater detail but we must now apply ourselves to the issue outlined in chapter 6 of the report, namely, the required changes in practices and procedures which must now come into place in a radically-changed legal landscape. The Health Service Executive is not an "unelected quango" as Senator Ryan described it earlier, rather the body's chief officer is himself an Accounting Officer, which represents a radical change in the relationship between the Department and those who administer services on its behalf.

Any restructuring of the Department must take place in this context and must ensure that taxpayers, under the supervision of the Health Service Executive, get maximum value for money and return for their services. We must also reconcile the designing of a service plan from year to year with the essential political requirement to intervene where difficult issues arise to ensure that a rapid response takes place on the part of the Executive. These are the issues which must inform our debate.

We must also address the issue, raised by Senators during the course of the debate, of how we deal with the Supreme Court's advice to the President that the legal entitlements of those who were not paid are recognised. In this respect, I do not speak on behalf of the Department but I have grave reservations about the consequences of the Supreme Court's judgment. However, we have received the judgment and must deal with it and address the issues arising, notwithstanding my grave reservations. As I stated earlier, the science of economics and the administration of this Department is about the allocation of scarce resources. A significant amount of scarce resources will be pre-empted in meeting our obligations, which I accept, on foot of the decision of the Supreme Court.

Sitting suspended at 1.35 p.m. and resumed at 2.30 p.m.
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