I move: "That the Bill be now read a Second Time."
In the debate on this Bill in the House today, I believe it is important that we address the issues with clarity, purpose and fairness. It is important that people in long-term care and their families should have clarity about how care will be provided and paid for. It is important, too, that any charges made by the State are on a fully legal basis, as it is that we should have confidence in our public administration operating effectively in the public interest at all times. It is important, too, that where mistakes are made, they are recognised, responsibility is taken and the lessons are learned and applied.
I wish to deal with three areas, the provisions of the Bill, the scheme of repayments the Government will put in place and the issues arising from the handling of this question within the Department of Health and Children. I am placing on the record of the House a number of documents as an annex to my prepared remarks. I am putting all the facts I know before the House. This is the only way each of us can form clear and fair assessments.
I wish to introduce formally the Second Stage of the Health (Amendment) (No. 2) Bill 2004 to the House. The purpose of this Bill is to provide a legal framework for the charging of patients in long-term care in health board run institutions and publicly contracted beds in private nursing homes. The Bill will establish a sound legal basis for the long established practice of health boards charging for the costs of maintenance in institutions providing long-term care.
Most people accept that it is fair and reasonable that those who can afford to contribute to the cost of their long-term care should do so. This has been implemented by successive Governments, and by Ministers for Health from all parties, since 1954. The charges raised are used to support the provision of care for those in long-term residential care. These charges currently generate approximately €100 million for health boards each year. The cost of long-term care is clearly more than this amount. The loss of this income would have an adverse effect on our ability to provide the health and caring services people need.
I am circulating to Deputies a brief background note on the history of the legislative basis on which charges have been raised up to now. I am also circulating a report by the Secretary General of my Department, prepared at my request for the Government meeting on Tuesday. The basis for charges, made since the McInerney Supreme Court judgment of 1976, arose from a circular issued by the then Department of Health to health boards. This circular, which is included in the annexed documentation, authorised a practice by which the CEO of a health board could regard patients as not meeting the criteria for full eligibility while remaining in long-term care, on the basis that the necessary GP and surgical services were being provided for them. The decision to withdraw medical cards and full eligibility in this manner was taken to enable a charge for inpatient services to be raised under the 1976 regulations, which provided for charging for people other than those with full eligibility. The extension of full eligibility in 2001 to all persons over 70 years of age, irrespective of means, was not the reason the practice of charging in this way was found to be without a sound legal basis. The flawed basis for charges for anyone with full eligibility goes back to the 1976 circular which continued to be implemented after the 2001 decision.
The Bill provides for an amendment to section 53 of the Health Act 1970 as follows. It replaces the existing enabling provision in subsection (2), which provides the Minister with discretionary power to make regulations, by a provision which requires the Minister to make regulations in order to impose charges on all persons, that is, those with either full or limited eligibility. A new subsection (3) is inserted which specifies the categories of person exempted from charges imposed under subsection (2). A new subsection (4) is inserted which empowers the chief executive officer of a health board to reduce or waive a charge having regard to the financial circumstances of the person and with a view to avoiding undue financial hardship for that person. It is intended that the regulations will impose a maximum weekly charge of €120, which is approximately 80% of the weekly rate of the maximum level of the non-contributory old age pension. The regulations will also make clear that individuals are to retain a minimum amount of pocket money of €35 per week. A new subsection (5) is inserted to provide, among other things, that charges levied under section 53 of the Health Act 1970 prior to 14 December 2004 are and always have been lawful. My Department is satisfied, in the light of legal advice available to it, that this is constitutional and in accordance with the European Convention on Human Rights. The Department has received advice from the Office of the Attorney General which includes advice from outside counsel including Dr. Gerard Hogan Senior Counsel, a leading expert in Irish constitutional law and a co-author of Kelly's The Irish Constitution. A new subsection (6) is inserted to provide that the retrospective regularisation provision of the new subsection (5) does not apply in the case of a charge which is the subject of civil proceedings instituted on or before 14 December 2004 for the recovery of the relevant charge. A new subsection (7) is also inserted to provide that the provisions of the new subsection (5) do not affect any other ground which may be raised in civil proceedings to debar the recovery of the relevant charge. A new subsection (8) is inserted to make it clear that any current regulations remain in force. This is to make it clear that the Bill does not interfere with other existing regulations. A new subsection (9) is inserted to provide that the charges shall only apply for inpatient services after a period of 30 days or periods aggregating 30 days within the previous 12 months. The new subsection (9) also limits the weekly charge to an amount that does not exceed 80% of the maximum of the weekly rate of the old age, non-contributory pension. A new subsection (10) is inserted to clarify that the period of 30 days referred to in subsection (9) begins to run immediately the person concerned is provided with inpatient services. A new subsection (11) is inserted to define "in-patient services" for the purpose of charges made.
These provisions of the Bill implement the Government's policy in this area, which is that it is reasonable that charges should be made, that charges must be on a sound legal basis and that clarity is brought to charges made in the past so as to avoid needless litigation and potentially large instability in health care funding. As I said at the outset, mistakes made should be recognised and redress should occur if at all possible. The Government recognises that a mistake has been made for 28 years on the legal basis for charges. Notwithstanding the fact the policy had consistent support and that people did actually receive a benefit for their payment, the Government believes that some repayment should be made because a mistake was made. It is clearly beyond our financial and administrative ability to repay all charges since 1976. We have therefore decided, by way of a goodwill gesture, to make repayments to people with full eligibility who have paid charges to date. Approximately 20,000 people will benefit from this repayment. Each person will receive a repayment of up to €2,000. These payments will be made automatically, where possible, as soon as possible in the New Year. We will also advertise to allow people to apply for a payment. This is to ensure that no-one who has made payments is left out, or is unduly delayed in receiving payment. For example, there may be people who may previously have been in long-term care but have since left or moved to another setting and records may not be as readily available. The Government believes this is a reasonable and fair way to recognise that a mistake was made. People who are now in long-term care will benefit directly and exclusively. Administrative and legal costs will not absorb any part of the repayment and it will be done speedily and fairly.
At the end of 2002, the South Eastern Health Board, in the context of a number of claims about charges by and against the board, obtained legal advice on a range of issues related to long stay care in both public institutions and private nursing homes. An extract from the legal advice was handed to the Department at a meeting with the South Eastern Health Board on 11 March 2003. The broad content of the advice was also made known by the South Eastern Health Board to the CEOs of the other health boards. The relevant aspects of this advice were considered within the Department over the following months. It was not, however, brought to a particular decision point during this period.
The charges for long-term stays in public institutions were discussed in some detail at the end-year review meeting between the Department's senior management and the CEOs of the health boards on 16 December 2003. I am circulating the minutes of that meeting to the Deputies. It was concluded at the meeting that it would be necessary for the Department to get a definitive legal assessment as the first step in drawing up legislation on eligibility and charges.
Arising from that meeting, a small group was convened within the Department to prepare a position paper on the legal issues surrounding charges for long stays in public institutions. This position paper was drawn up at the end of January 2004, as was a letter to the Office of the Attorney General requesting legal advice that would have been signed by the Secretary General. Unfortunately, this letter was not sent at that time. Following questions on the issue from Deputies Kenny and Perry in the House in October 2004, I immediately sought legal advice from the Office of the Attorney General. The legal advice provided on 5 November made it clear to me that new primary legislation would be required urgently to underpin a policy that requires persons to contribute to their costs of maintenance, costs such as shelter, food, bed and clothing, in a public institution or a contract bed in a private setting.
In light of that advice, work began immediately in the Department on the preparation of the necessary legislation. I made it clear in this House that we would bring in legislation before Christmas if possible. I received further advice on 8 December from the Attorney General on legal problems arising from continuing to make such charges. On foot of that advice, a letter was issued on my instructions to the chief executive officers of the health boards and the Eastern Regional Health Authority asking them to stop making such charges immediately, pending the introduction of amending legislation. The CEOs of the health boards confirmed last Friday that they had taken the necessary steps to do so.
Drafting of the legislation continued between the Department and the Attorney General's office and, when it was completed, I was in a position to bring a memorandum to Government last Tuesday. That is how we have come to today's debate on this Bill.
Clearly, serious issues arise from how this important legal issue was handled in the Department of Health and Children. The Government proposes to deal with the charges by new law and by makingex gratia repayments. There is also a responsibility on us to deal with public management and administration issues. I have asked Mr. John Travers, a retired head of Forfás with a distinguished career in the public service, to examine the management of this issue in the Department and, in particular, the reasons the Attorney General’s advice was not sought at the earliest possible time. I will ask him to identify lessons that can be learned and applied from these events, in the interests of more effective public administration in the Department of Health and Children and elsewhere. I intend to give him the greatest latitude possible for recommendations in this regard and I expect to receive his report by 1 March next year. I will publish the report.
I am not interested in blame. I am interested only in achieving excellence in public administration, in the interests of patients, public and staff. There is every reason for the Department of Health and Children to strive for and to achieve excellence, particularly at this time of change when its role will be more focused on policy, legislation and evaluation. I look forward to this report helping us to achieve that.
The legislation before the House today will bring clarity to an area which has not operated on a sound basis for nearly 30 years. This is a genuine attempt to correct that flaw so that charges for long-term care will now have a sound legal basis. This Bill will ensure that the income from charges will continue to support the provision of quality services to those in long-term care. If we do not allow this funding to be retained, the loss of resources for the health services is estimated to be approximately €8 million to €l0 million per month. It has been accepted that these charges, as contributions to the cost of care, are fair and reasonable.
I commend this Bill to the House.