There were two big political stories this week. Both the fall of John Bruton and the decision of politicians to award themselves a huge pay rise produced some half-hearted questions about how well the political system is functioning.

Buried in the avalanche of publicity produced by these stories, a stinging report on the functioning of Irish democracy answered many of these questions by revealing a system that barely functions.

On Wednesday, while Leinster House was abuzz with rumours and conspiracies, the Ombudsman sent the Oireachtas a searing indictment of its own inadequacies. The report deals with the payment by health boards of subsidies to patients in private nursing homes as provided for in the 1990 Health (Nursing Homes) Act.

It tells a shocking story of how, between 1993 and 1999, the State deliberately ripped off vulnerable elderly people who couldn't look after themselves or be cared for by their families. 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 the inside, by health boards and the Department of Health. It reveals a Dail so careless of its own importance that it allowed its own decisions to be sabotaged.

While some of the details are highly complex, the basic scandal is quite simple. The Nursing Home Act, which came into effect in 1993, is supposed to fill a gap in basic social services. On the one hand, elderly people are entitled to nursing home care. On the other, the public system does not have nearly enough beds. So the Act provides for health boards to subsidise the cost of care in a private nursing home. It also allows nursing home residents to have a fifth of their old-age pension disregarded as "pocket money" when their means are being assessed.

Both of these provisions were deliberately undermined by the health boards and the Department of Health. Even though, as the report makes clear, "the 1990 Act does not make adult children legally liable for parents' hospital or nursing home costs", the health boards consistently refused subventions to elderly people on the grounds that their adult children could afford to pay the costs. In effect this meant that the elderly husband or wife of the person in the home had to pay the full costs out of their own pensions, leaving them with a pittance to live on. At the same time, six health boards, with the direct encouragement of the Department of Health, also ignored the "pocket money" provision.

None of this was accidental. It is clear, in fact, that the Department of Health knew it was acting illegally. In 1993, for example, the then Minister for State at the Department, Willie O'Dea, wrote an article for the Sunday Press, pointing out that under the legislation "the health board is given no legal right to force a son or daughter to contribute" to the nursing home costs.

In July 1992 indeed the Department had actually consulted its own legal adviser regarding its intention to define an elderly person's "circumstances" as including the income of their adult children. The advice was that this would be wrong and "would invite a legal challenge which was likely to succeed". On August 4th, 1992, an assistant secretary in the Department read the draft memorandum to Government on the implementation of the 1990 Act and noted: "I think the notion of formally taking account of a family's financial responsibility could lead to an early court challenge, perhaps on constitutional grounds." The Attorney General's office gave similar advice. But the Department went ahead anyway. What Willie O'Dea told the readers of the Sunday Press was an accurate account of the law that left out the crucial fact that the law was being deliberately flouted by his Department.

THE TERMS in which the Ombudsman's report characterises the Department's actions give a good idea of the extent to which good administrative practice has broken down: "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".

What successive Ministers for Health were doing about this is another question. The report notes "the paucity of written evidence of the Minister's involvement and of the Minister's own views on the subject" on the official record and expresses concern at "this apparent reluctance to record the Minister's involvement". The person who is supposed to be accountable to the Dail for the operation of legislation seems conspicuously absent.

But there is a clearer answer to the question of what the Dail itself was doing about the subversion of legislation which it had passed: nothing. If, as the Ombudsman points out, "the system had functioned properly in this case, the issue of requiring adult sons and daughters to contribute to their parents' nursing home costs would have been raised, debated and decided upon within the Oireachtas".

That none of this happened shows yet again the fallacy of believing that we live in a parliamentary democracy. The parliamentary side of the equation is summed up in a devastating understatement: "The notion that the Oireachtas sets policy, makes the laws and then leaves it to the executive to implement the laws does not fit with how government operates in practice." As for the democratic notion that the State exists to uphold the rights of its citizens, the conclusion that "there is little evidence that notions of the rights of applicants were paramount" says it all.

Here, then, was a timely and devastating reminder that there is a crisis in the fundamental relationship of the citizen to the State. As in the hepatitis C and HIV scandals that involved the Department of Health, we see a supposedly democratic State treating vulnerable citizens as the enemy. When this urgent message arrived at Leinster House, its occupants were engaged with, among other things, rewarding themselves for a job well done.

fotoole@irish-times.ie