The Ombudsman last night restated the position of her predecessor that all residents of the State are eligible to be provided with in-patient services, including nursing home care, by their health board.
Ms Emily O'Reilly said her position remained consistent with her predecessor Mr Kevin Murphy who had reported on this issue in 2001. Medical card holders should receive such services free of charge, she said.
Ms O'Reilly said she expected to receive complaints from members of the public about the denial of this right on foot of the recent controversy. "In any particular case where I find that maladministration has adversely affected a complainant, I will make recommendations for redress to the relevant health agencies or the Department of Health and Children, as appropriate," she declared.
Ms O'Reilly said last night that the Department had disputed the Ombudsman's interpretation, arguing that the Health Acts do not confer a legally enforceable entitlement to hospital in-patient services.
"The Department argued that the law was unclear as to whether people have a statutory right to be provided with nursing home- type care by a health board." But Ms O'Reilly said she believed otherwise and that the entitlement does exist.
The Ombudsman said the matter had become more complex since medical cards were granted to all people over the age of 70. Since then, she said, she had received a small number of complaints from this group of the population, saying they were not receiving nursing home care free of charge.
"The response of the South Eastern Health Board in one particular case was that, according to legal advice provided to the Department of Health and Children, and made available to the board, a person, notwithstanding his/her age, did not have a legally enforceable right to receive services free of charge and that, by extension, the Department maintained, the board did not have a duty to provide such services free of charge," her statement read.
However this health board then sought its own legal advice, and found it was in line with that of the Ombudsman. Charges were subsequently stopped, she said. Complaints have continued throughout 2003 and 2004, she noted. Now the recent opinion furnished by the Attorney General to the Department suggests that the original advice circulated by the Department provided a "flawed basis" upon which medical cards were withdrawn. "In other words, it was legally unsound."
Ms O'Reilly said she was not questioning the legality or constitutionality of the Health Amendment (2) Bill 2004 passed by the Oireachtas last week, designed to make past charges retrospectively legal.
She also noted that health boards had directed many patients to private nursing home care, even though the boards had responsibilities in this area. "Everybody resident in the State is eligible to be provided with in-patient services, where necessary, by the relevant health board."