Government TDs recoil at State’s nursing home legal strategy

Government TDs hit out at the State’s nursing home legal strategy in the Dáil on Thursday.

Fine Gael TD Fergus O’Dowd said people with an entitlement to care in a public nursing home were denied that right and this was “wrong” and “shouldn’t have happened”. The Louth TD said the Government has to “address that wrong”.

A protected disclosure made by a whistleblower in the Irish Mail on Sunday revealed a Department of Health 2011 memo purporting to set out a legal strategy to thwart refunds of potentially billions of euro to people wrongly charged for nursing home care over 30 years.

Medical cards

Attorney General Rossa Fanning has concluded that the legal advice on claims against the State arising from private nursing home charges levied on people with medical cards was “sound, accurate and appropriate”.

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A separate RTÉ Prime Time report also found that up to 12,000 vulnerable people were denied disability allowance payments by the State.

Statements were heard on nursing home charges and disability allowance payments in the Dáil on Thursday afternoon.

Mr O’Dowd said the way older people are treated in Irish society is “not great” and has disimproved as a result of the Covid-19 pandemic.

“At the heart of this debate is a denial of an entitlement to care in a public nursing home, where a person who has that right has to go to a private nursing home to get that care and they have to pay for,” he said.

“That is exactly what happened. It was wrong, it shouldn’t have happened and it did. The Government have to address that wrong, and I would support a proper and appropriate analysis over the next three months, which the Government are looking for, to ensure that the right decisions are now made.”

A legal strategy to discourage claims against the State by citizens overcharged for nursing home care

Listen | 31:04

Fianna Fáil TD John McGuinness noted a contribution from then tánaiste and Minister for Health Mary Harney to the Seanad in March 2005 when she set out the history of the issue and referred to the High Court decision that was upheld by the Supreme Court.

He told the Dáil that Ms Harney said 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.

“I think that is just outrageous,” Mr McGuinness said. “It doesn’t shock me anymore because I have seen this tactic in play in many different government departments.

“But when you see it set out in black and white, dating back to 2005, you begin to understand that there is, indeed, a strategy here, there is indeed a practice being followed and that practice, essentially, is to defend the State at all costs, whether you are right or wrong ... to down the citizen or ensure that the muscle of the State wins over a person or a group taking an action.”

First duty

Mr McGuinness pointed to the Grace case, the CervicalCheck scandal, thalidomide victims and said the first duty of the State was to “keep our people safe”.

“We are not keeping our people safe,” he said. “We are exposing them to all sorts of litigation challenges just to protect the interests of a few within Government, that are attempting to keep a secret, colluding with senior officials and politicians, to keep that secret of so many years and at the same time dealing an awful hand to those who are seeking justice, truth, those that want to address an issue that should be addressed without all of the legal costs that are involved while the State hides behind this Attorney General’s report today.

“This issue is not about that report, this controversy is about what was not done by ministers. I have never seen as many of the Gresham grandees run for cover. If there was an Olympic gold medal, each one of them would get one, run for cover, pretend they didn’t hear it ... Someone has to call a halt to all of this, restore the rights and dignity of people who are trying to get justice for themselves.”

Minister for Health Stephen Donnelly said that 516 legal cases were initiated between 2005 and 2013 over nursing home charges, with 289 in respect of private nursing homes and a further 37 cases concerning a mixture of public and private care.

Mr Donnelly said the majority of the balance, relating to public nursing homes, have been resolved. The Minister also said the prevailing policy of governments from the 1950s through to the end of the 20th century was that the State would provide for people with disabilities, either through in-kind support in a residential facility or through financial supports for people living in the community, but that it would not do both.