At that stage the health boards were all statutory bodies with their own boards. As chief executive, my job was to implement the service plan and be generally responsible for the management of the affairs of the board. We conducted our daily dealings with the Secretary General and the officials in the Department of Health and Children. We were not aware in 2001 that the Department was of the opinion that there were difficulties with the regulations or the legislation. Had we known that, it would not have been necessary for us to seek an opinion.
The Department did not ask us to seek the opinion. It was our decision because when we checked with the Department, it expressed the view that the charges were legal. We were guided by the views of the Ombudsman who, in considering the nursing homes issue, said that boards whose opinion was at variance with that of the Department had a duty to check the position further. That was the basis on which we sought a definitive opinion.
I cannot comment on the gap between our knowing about this and anything happening because that was internal to the Department of Health and Children. When I raised the issue with the Secretary General and members of the management advisory committee at the meeting in February, they hastily arranged to meet us in March to discuss the opinion. I was less than happy at the later delays that occurred because the summary of the opinion pointed out some difficulties that should have warranted referral to the Attorney General.
The Department had another opinion on eligibility versus entitlement and that was important. We, and our advisers, took the view that these were separate issues. We have not been involved in any court action on this matter. We have not dealt differently with people arising from the advice. We were concerned that the vacuum that would be created in time would push us into that position. Had we been before a court, we would have been in a difficult position because our advisers had one view of the legal opinion and the Department had a different view of it. That is one reason for trying to inject urgency into the situation.
I understood the issue was likely to be dealt with based on forecasts of what the 2004 Act might include, for example, organisational changes. The health strategy referred to clarification of the legislation regarding entitlement. I had thought the timing was good in this regard and that our opinion would be checked by the Attorney General and would allow the situation to be clarified. Nobody had been complaining to any significant degree about the principle behind what we were doing; it was the legality that gave rise to concern.
After 2001, the chief executive officers were not asked to obtain legal opinion; they were asked to come back quickly to the Department regarding their views on the 2001 position in respect of those over 70. They did not seek legal opinion on it and the letter, which is in the Travers report, points out that they did not necessarily see any difference. However, they pointed out that they were referring to the Department's circulars in 1976. No definitive position was adopted at that stage, mainly, I would imagine, because of the speed with which this was arriving in any event. It took us quite some time to obtain legal opinion. It was quite a complex issue.
I am not at liberty to release the summary or the opinion, which is privileged because of ongoing litigation that does not involve us. We did not send the legal opinion to the health boards. We sent a summary of it to them and to the Department. We did not provide the opinion in full until, when the matter became a major public issue, the Department sought it. We gave the opinion to one other former health board area which is involved in litigation.
The opinion dealt with many individual cases of patients and charging and assessments and arrangements for that. It also dealt with the legal strategy that the board might adopt in the event of nothing being determined on this by the Department. Therefore, it was not appropriate that I would release the legal opinion.
The Freedom of Information Acts have not changed how I do my work. They have not changed what information I will release or record. That has always been my way of approaching matters. It is true that most of the contact between the staff of my office and the Department's staff would have been by telephone and there would not have been any record of that. That was not for FOI purposes; it was simply the ongoing contact on whether anything had been received from the Attorney General or whether there had been any further developments in that regard. Such communications were not written down on either file but it would not have been because of FOI.
I have had no discussion with the Ministers on this. I never had a discussion with the Minister or the Ministers of State about the advice we received. My view was that once this was officially with the Secretary General of the Department, that was the most appropriate place for it to be and it was a matter for him to make a judgment on discussing it with the Minister. I would have never discussed it with the advisers.
Since the publication of the Travers report, I have had two discussions with the Minister of State, Deputy Callely, solely for the purpose of him recollecting what transpired at the meeting in December. He made it clear that his sole purpose was to discover, to my recollection, who was present at the meeting and how detailed an account was given. My recollection of that meeting is that there was quite a long agenda. The matter in question did not necessitate a long discussion because once the decision was taken by the Secretary General that our opinion merited referral to the Attorney General and that the significance of it — namely, that legislative change might be required — was understood, as far as I recollect, everybody in the room was satisfied. It did not merit detailed consideration. There were many items on the agenda.
The only point I would have made to the Minister of State, Deputy Callely, as a result of his discussion with me, was that there was an impression being given in the Travers report that in some way CEOs were more concerned about their own business and their contracts of employment. That was never raised. We never raised that with a Minister or Minister of State. It would have been totally inappropriate for us to raise it. That was an issue between us and the Secretary General. It remains an issue for some CEOs. On that particular day, the CEOs were not interested in their own personal positions arising from the change.
This was a priority for the CEOs because of the fact that they were on the front line, receiving requests from the Ombudsman and solicitors and dealing with patients' complaints. If it went to a court, it is likely, given that legislation was being challenged, the Department would have been enjoined in those actions. One could certainly state that we were feeling the heat from various parties — solicitors, the Ombudsman and patients — on the interpretation, particularly after 2001, because of the issuing of medical cards to those over 70. We wanted, therefore, to try to obtain clarification.
Our job is to implement and uphold the law and we cannot change that. Where an interpretation of a compelling nature is made, however, it is my duty to bring it to the attention of the Secretary General. When it was stated that other colleagues, particularly in the context of the letter from Mr. Pat Harvey, did not agree with me, I brought to their attention a summary of the advice and they were of the opinion that this needed to be clarified by the Department. I think that deals with Deputy Twomey's questions.
