The Health Service Executive is to pay total compensation of €168,000 to two women after it failed to provide them with nursing home care on the grounds they were "too young".
Ombudsman Emily O'Reilly today published her investigation into the HSE's failure to provide nursing home care for the two women over a period from the late 1990s to the late 2000s.
She found the HSE was obliged to provide long-stay care for the patients involved in two separate complaints. It had failed to do so and the two women concerned incurred “major costs which they should not have had to incur”.
The complaints were made on behalf of two women who, it was claimed, were left with no alternative but to avail of private nursing home care because of the failure of the relevant health boards at the time to provide public long-stay care.
Her report said that what distinguished the two women from the typical such complaint to her office was that they were relatively young (57 and 53 years old respectively) when they entered care in 2002 and 1997.
In both cases, the families said the then South Eastern and Mid Western Health Boards had failed to provide public long-stay care because they did not have such facilities for people under the age of 65.
Ms O’Reilly noted that while the same legal issues arose in both cases, the extent of the claimed adverse impact differed significantly. The names of both patients were changed in the report.
In one case, that of ’Catherine Bennett’ (now deceased), the claim period was about 31 months from May 2002 to December 2004.
In the other case, that of ’Mary Connolly’, the claim period was about 12 years – from 1997 to 2009.
Ms Bennett had suffered from a slow-growing malignant brain tumour which left her in need of constant care. She died three years after she went into a private nursing home at the age of 57 in 2002.
Ms Connolly suffered a stroke in 1996 and required long-term residential care as a result. She was 53 years old at the time.
Both women had medical cards. Their families had applied under the Health Repayment Scheme for refunds of the private fees paid and in both cases the claims were rejected.
Ms O’Reilly said she accepted at an early stage that the scheme was “not the most appropriate mechanism” for providing redress in these cases.
“However, the Ombudsman considers that both complainants have, on the face of it, reasonable grounds for seeking refunds of their nursing home costs and she has dealt with the complaints on that basis.”
“Insofar as this failure to provide nursing home care arose because the women in question were under 65 years of age, the Ombudsman found that this was age discrimination and contrary to the Equal Status Acts.”
Ms O’Reilly recommended that €130,000 in compensation should be paid to Ms Connolly and €38,000 to the respresentatives of the late Ms Bennett.
Additonal sums of €20,000 and €10,000 respectively were to be paid to the patients or their represenatives in recognition of “time and trouble”.
The HSE has accepted these recommendations. It has not, however, accepted the ombudsman’s findings, her report said.
Ms O’Reilly said she had been aware that more than 300 sets of legal proceedings against the executive had been initiated in other “broadly similar” cases, and that some of those cases had been settled out of court.
She had considered that the details of the settlements were relevant to the cases in this investigation and therefore required the HSE to provide details of the settlements in accordance with her powers under the Ombudsman Act.
Ms O’Reilly said the executive took “some time to provide a clear response”, but eventually refused to provide the information required.
She said her view was that this amounted to “obstruction” of her investigation and she would be reporting this to the Dáil and Seanad in her forthcoming annual report for 2012.
She published her correspondence with the HSE in on her website ombudsman.ie