Tonight we debate a damning report from the Ombudsman on the treatment by health boards of vulnerable old people in need of nursing home care. Throughout most of the 1990s rich and powerful people in our society evaded tax through offshore accounts and the like. The State, rather than tackle this abuse, was, in the personage of the health boards, engaged in improperly extracting money from vulnerable old people and their families. The least that elderly people should be able to expect is that, having contributed to society all their lives, they will be looked after in their old age. Indeed, the Health Act, 1990, passed by this House, seemed to guarantee them this right, yet the law was systematically flouted. Elderly people had their meagre savings taken and even recently there seemed doubt as to whether these people or their families would be compensated. There should be no doubt, this report makes truly terrible reading.
The report of the ombudsman on nursing home subventions to the Dáil and Seanad states that the administration of this scheme is a cause of real concern. Among the doubtful practices identified were the making of regulations containing provisions which are likely to have been invalid, ultra vires the Act, including at least one instance in which the likely invalidity probably had been known in advance; the inclusion in a regulation of a provision which was almost immediately negatived by advice issued by the Department; the unreasonable prolongation of discussions with the Ombudsman's office in relation to practices which, it appears, were known from the outset to be invalid or incorrect and; the failure of some of the health boards to alter the practice even where the legal advice was that the practice was incorrect and where the Ombudsman had expressed the same opinion.
The report points out that between 1987 and 1988 further rationalisation of the hospital system resulted in the closure of eight district hospitals operated by health boards and voluntary hospitals. These included Dr. Steevens and Baggot Street in Dublin, Barringtons, Limerick, and the North Infirmary, Victoria and the eye, ear and throat hospitals in Cork. Between 1980 and 1990 the total number of hospital beds fell from almost 15,000 to 12,000. The closure of district and voluntary hospitals which had traditionally catered for older people had a serious impact on the availability of extended care places for older people.
Perhaps we should pause for a moment to consider what the moneys not paid in taxes at that time could have done for people in need of nursing home care and reflect on the famous slogan of the time "health cuts hurt the old, the sick and the handicapped". In essence, the Ombudsman's report deals with the payment by health boards of subsidies to elderly persons in private nursing homes as provided for in the Health (Nursing Homes) Act, 1990. It reports on the practice whereby the State deliberately and unlawfully took money from vulnerable elderly people who could not look after themselves or be cared for by their families and on how members of the fam ilies of the elderly persons, once they lived within the jurisdiction of the State, were unlawfully asked to have their incomes assessed and taken into account so that the services which were provided for by law, but for which the funding was not provided, would be funded by relatives by pressure and blackmail and without any lawful basis.
As pointed out by Fintan O'Toole in The Irish Times on 3 February last:
A key part of that story is subversion – the undermining of a law passed by the Oireachtas, not by organised crime or terrorism, but from inside, by health boards and the Department of Health and Children. It reveals a Dáil so careless of its own importance that it allowed its own decisions to be sabotaged.
I will return to this theme towards the end of my contribution.
Under the nursing homes Act elderly people are entitled to nursing home care. The public system does not have nearly enough beds, as I have pointed out, so the Act provided for health boards to subsidise the cost of care in a private nursing home environment. It also allowed nursing home residents to have one fifth of their old age pension disregarded and not treated as means – this would be their "pocket money". These two provisions were deliberately and systematically undermined by the health boards and the Department of Health and Children.
The report states that the 1990 Act does not make adult children legally liable for parents' hospital or nursing home costs. Despite this, the health boards refused subventions to elderly people on the grounds that their adult relatives could afford to pay the costs. This sometimes meant that the elderly husband or wife of the person in the home had to pay the full cost out of their own pensions, leaving them with little or nothing to live on. At the same time, six health boards, with the support of the Department of Health and Children, also ignored the "pocket money" provision.
To make matters worse the then Minister of State at the Department of Health, Deputy Willie O'Dea, writing in The Sunday Press in 1993, pointed out that under the 1990 Act “The health board is given no legal right to force a son or daughter to contribute.” Therefore, the Department of Health knew these actions were unlawful.
The Ombudsman's report notes the flouting of legislation in the following terms: taking shortcuts, disregarding legal advice, assuming powers which technically it did not have, resisting a growing weight of evidence and complaints that its subvention scheme was seriously flawed, the exercise of non-existent authority, the surreptitious introduction of family assessment, the disregard for clear principles of law, the sustained proffering of incorrect advice, the reluctance to acknowledge mistakes, the tardiness in the Department's dealings with the Ombudsman's office. Was there ever such an indictment by an independent investigation of any State body or agency? The report gives precise examples. The Southern Health Board refused subvention to an elderly Alzheimer's patient because of the income of her married daughter, who had not lived with her parents for 26 years. This elderly woman, suffering from Alzheimer's, was improperly and unlawfully deprived of her just subvention. For almost five years the daughter's theoretical contribution remained the basis for the Southern Health Board's decision to refuse a subvention. The claimant's husband, who was in his eighties, pointed out to the Southern Health Board that he was paying the full nursing home costs and that this left him with less than £23 per week to live on. Regrettably, the husband died suddenly before the complaint was resolved. Ultimately the Southern Health Board accepted that its decision was not sustainable and arrears of £14,027 were eventually paid.
This is not an isolated case. The Midland Health Board had a similar approach, as illustrated in extracts in the report. The Midland Health Board wrote as follows to the daughter of a subvention applicant on 9 April, 1998:
. . . the Health Board are therefore now requesting you to submit details of income by way of P60, tax assessment form, farming accounts, income from investments. The Health Board must be furnished with these details to enable us to determine your liability, if any. Failure to furnish this information will mean that the application for subvention cannot be proceeded with . . .
This demand was absolutely unlawful, without authority and showed no regard to the rights of a citizen. The daughter, quite rightly, responded as follows:
I wish to inform you that I absolutely refuse to furnish such details and demand that you assess my mother's entitlement to subvention on her own means. I feel she has been very badly treated by the Midland Health Board over the last three years in being refused what is her entitlement as a non-contributory old age pensioner with no other means of any sort.
There was a lady who understood what it meant to be a citizen and understood her rights under the law and Constitution. Was there no person in the Department or the health boards who could see through the arrogance of the administration in the way these people were treated? In this case, as the Ombudsman points out, the Midland Health Board eventually agreed not to have regard to the daughter's means following the intervention of the Ombudsman, and not until then. Arrears of subvention were paid.
A Christian society is judged by how it cares for its old and vulnerable citizens. This report indicates how far we have departed from that ideal given the activity of many of our health boards and our Department of Health and Children over such a prolonged period. As is clear from page 59 of the report, the health boards knew from their own legal advisers, as the Department knew from its legal advisers and from consultations the Department had with the Attorney General's office on 3 December 1997, that these actions were ultra vires the 1990 Act. The Department and the health boards knew they were acting unlawfully. What penalty will they now pay for flouting the law?
The Minister has put down one of his usual smart amendments to my motion but I call him to account as the constitutional political head of his Department to tell the House what penalty will now be paid by those who flouted the law and who treated vulnerable old people in this way. The Ombudsman made clear his views that general retrospection should be paid to those who have been unlawfully and improperly charged by the State and its agents. This is the least that should be done. The report states:
The detailed basis for this view will be clear from this report but, in essence, retrospection should be paid because the family assessment provisions were almost certainly legally invalid; health boards generally misled families into believing that they had an obligation to contribute; health boards generally withheld the information that elderly patients are legally entitled to long-stay care from the health board and that entering a private nursing home should arise only where the patient genuinely wishes to choose private care over public care; the Department knew from the outset that the family assessment arrangements were legally invalid.
The report continues by pointing out that the Attorney General's office advised the Department that there was no strict legal liability to pay arrears but, the Ombudsman's report continues:
On the basis of the information available to the Ombudsman and which is detailed in chapter seven, there is a contrary view to the position adopted by the Attorney General's Office; this casts doubt on the conclusion that there is no legal liability to pay subvention arrears.
As the report was being finalised in January 2001 the Department informed the Ombudsman that it had now received the approval of the Department of Finance for the payment, by the health boards, of arrears in those cases where family assessment operated. That was January 2001, when we were running a budget surplus of approximately £5 billion and when everyone had been found out, when even the Attorney General's advice that there was no strict legal liability for arrears had been shown to be shambolic. There was and is a liability and it is only because people have been found out that the Government has now decided to pay those arrears.
The details of how this will be implemented are not yet available to the Ombudsman or the House. It should be implemented fully and with interest because if wealthy taxpayers who defraud the Exchequer are obliged to pay arrears with interest and penalties, then surely the State, with all the money it has in its coffers, must be similarly obliged to refund with interest money to those who have been defrauded by the State despite any advice to the contrary from the Attorney General or anyone else. Furthermore, any pocket money denied to elderly persons, living or deceased, should be refunded to them or to their estate in like manner. There is a moral duty to do so. The payment of arrears has in many cases been operated with a sense of laissez faire although £4 million was allocated to six health boards in January 1998 for this purpose. The Ombudsman stated:
It appears some of the health boards failed to apply this additional funding immediately for the purpose intended. Or, at least, it appears that some of the boards felt the money was more urgently needed in other areas and "borrowed" the allocation for other purposes. From information provided by the health boards themselves, it is clear that the payment of arrears has not been treated with any great urgency and inaction or half measures appear to have been the order of the day. As of 15th January, 2001, three years after the allocation was made, three boards had not yet even calculated the amount due to deceased or discharged patients and one board had paid out only £31,000 out of an estimate of £325,000.
What sort of standards are these public authorities using? This is contempt for the citizens of the State. This has been a shabby and wholly improper development. It is also one which runs counter to the spirit of public service. The report of the Ombudsman should be circulated to every State Department, local authority and State agency with the instruction that this sort of practice runs counter to what is expected of any public service in a democracy.
This report goes on to quote a Fine Gael policy document on reform of this House. It quite rightly says that the right of this House to hold the State and its agencies to account has been bypassed. People are acting as if they are not only the Government but also the Legislature and have the right themselves to raise taxes. People treat this House with contempt when they are answering its questions.
This is what lies at the heart of this problem. The Members of this House and the people we serve have been treated with contempt by agents of the State and by a Department which knew what was going on all along. How dare the State thieve from its most vulnerable citizens.
I ask the Minister for Health and Children, Deputy Martin, to withdraw his smart-alec amendment and to apologise to the House for the fact that out of a surplus of nearly £5 billion this year in the case of one health board only £31,000 out of £325,000 has been repaid. In the case of a number of others we do not even know what is outstanding. I ask the Minister, Deputy Martin, to pay what is outstanding with full interest as is his duty.
