Concern over nursing home court cases

Concerns were raised by Attorney General Rory Brady in recent months at how the Health Service Executive (HSE) was preparing for forthcoming major court cases being taken against the State regarding nursing home eligibility.

The Irish Times has learned that the Tánaiste and Minister for Health Mary Harney wrote to the HSE chief executive Prof Brendan Drumm in April, outlining the Attorney General's concerns about the need to deal with the forthcoming litigation "in a pro-active manner".

Government sources said the concerns raised by the Attorney General related to preparations for dealing with the cases rather than the defence of the actions themselves.

Sources said the issue had now been resolved and that there were regular meetings between the parties concerned.

The State is facing a number of High Court cases regarding elderly patients whom, it is claimed, were forced to rely on private nursing home care because of a lack of public facilities.

While State subvention is available for older people in private nursing homes, it is not enough to cover the full costs of the care and leaves many older people or their families still facing shortfalls of up to several hundred euro a week.

Ombudsman Emily O'Reilly has said that she believes the State could face compensation claims from patients who had to avail of private nursing home care because of a lack of public facilities.

In her annual report last year, Ms O'Reilly said the controversy surrounding illegal charges levied on nursing home patients centred solely on patients in public institutions.

Ms O'Reilly said she believed that everybody in the State was entitled to the provision of in-patient services that could either be delivered directly by the HSE or by way of a contract arrangement with a private institution.

"The Supreme Court, in its judgment on the illegal [ nursing home] charges, did not address the issue of those medical card holders who could not be provided with a bed in a public institution, due to a shortage of such beds, and who were directed by the health board towards private care without in any way acknowledging their own responsibilities in the area.

"In addition, the Supreme Court did not deal with the issue of those patients who did not hold medical cards and who had similarly been directed by the health boards towards private care," said Ms O'Reilly.

"The current legislation does not address this issue, and I have little doubt but that such cases will continue to be the subject of complaint to my office and also eventually the subject of legal proceedings."

Under legislation introduced in 2001, all persons over 70 are entitled to a medical card, regardless of means.

In her letter to the HSE chief executive, Ms Harney said the Attorney General had been in contact outlining concerns with regard to the nursing home litigation and the necessity to deal with this matter in a pro-active manner. She sought details of the HSE's proposals for dedicating resources to dealing with preparation for the court cases.

Prof Drumm responded to the Tánaiste in May that a framework had been put in place involving the various State agencies to progress the issues involved and that the HSE was submitting all the documentation required.