ANALYSIS:Those seeking reimbursement of nursing home charges would appear to have a strong case, writes CAROL COULTER,Legal Affairs Editor
THERE ARE over 300 cases of people claiming reimbursement of nursing home charges, yet, five years after some were lodged, not one has reached the courts.
It appears the HSE has been settling cases on a piecemeal basis, making some payment on a basis of confidentiality, and avoiding the courts pronouncing on the central issue: whether Section 52 of the Health Act 1970 creates an enforceable right to in-patient services (including nursing home care).
The legislation seems clear. Section 52 of the 1970 Health Act, which set up the health boards and established eligibility for services, states: “A health board shall make available in-patient services for persons with full eligibility and persons with limited eligibility.”
Section 53 states that charges shall not be made for in-patient services made available under Section 52. Section 54 provides that a person entitled to avail himself of services under section 52 may, instead of accepting health board services, arrange for similar services in any hospital or home approved of by the Minister. The Minister, with the consent of the Minister for Finance, should then pay for the service.
Application of this Act to nursing home services for elderly people has had a torrid history. For years, elderly people in public nursing homes who had medical cards had most of their pension deducted by the health boards to pay for care, even though the Department of Health, especially after 2001, knew this was illegal.
In 2005, Minister for Health Mary Harney introduced the Health (Amendment) (No 2) Bill, including provision to legalise the deductions retrospectively. This was referred by the President to the Supreme Court, where those sections were struck down as unconstitutional in the strongest terms. The court permitted future charges for care by the State.
The court found the Bill contravened the constitutional right to private property, and spoke trenchantly of the obligation on the State to be careful to uphold the rights of the vulnerable, saying: “It bears repetition that the property rights to be abrogated in their entirety by the Bill belong to the most vulnerable members of society.”
If some or all of the cases referred to in the ombudsman’s report come to court, it is unlikely it will ignore the sentiments expressed by the Supreme Court on this related issue.
Emily O’Reilly points out that the strategy of avoiding a court judgment by making settlements with individuals has also been pursued by health boards in relation to those being charged illegally for long-term care.
This has been combined with an aggressive approach in litigation against those seeking court aid in establishing their rights, the most notorious case of which was that of Brigid McCole, infected with Hepatitis C by the Blood Transfusion Service Board.
Arguing for the State to seek clarity on the meaning of the legislation rather than avoiding it, O’Reilly stresses the difference between acknowledging that a right exists, and the separate matter of compensating people denied it over a period.
This might require endowing a person with a specific role in protecting the public interest.
Under the Constitution, the Attorney General has this role, along with that of advising the Government. O’Reilly points out the two roles could at times conflict, and sometimes be incompatible.