Joint Oireachtas Committee on Health: Minister for Health Mary Harney has said the outgoing secretary general in her department, Michael Kelly, gave "inaccurate and incomplete information" to the Government over the illegal charges levied on residents of State nursing homes.
Ms Harney also said she would not adjudicate on the "serious conflict" between Mr Kelly's evidence to the inquiry and that of her predecessor, Michéal Martin.
The Minister was speaking at a meeting of the Joint Oireachtas on Health which heard calls from Labour for Mr Martin's resignation and claims by the Greens that the Government was trying to "scapegoat" civil servants in its response to the affair.
She criticised a report Mr Kelly prepared for the Government on December 13th last year because it made no reference to repeated questions about the legality of the practice which had been raised as early as 1978.
Despite such questions, Ms Harney pointed out that Mr Kelly said in his report that the law "had previously been regarded as allowing for some uncertainty as to interpretation".
While the Travers report found the Department of Health never chose to seek to defend the practice in the courts, Ms Harney also pointed out that Mr Kelly said in his report the Department and health boards "stood over the practice in the bona-fide belief that it was legally defensible".
She said it did not give her any pleasure to make such points but said Mr Kelly did report that a letter had been drafted for the purpose of seeking legal advice on the matters involved from the Attorney General.
She said she would have to withdraw certain remarks she made to the Dáil in the light of the information in Mr Kelly's report.
Given the information that was emerging in the Travers inquiry, she said the Government did not argue before the Supreme Court that the charges had been levied in good faith.
On the conflict of evidence between Mr Kelly and Mr Martin, Ms Harney's cited statements both men made to the inquiry.
While Mr Martin said the legal difficulty around nursing home charges was never drawn to his attention "either formally or informally", Mr Kelly said he told Mr Martin when he arrived late for a health management meeting in December 2003 that the question of "nursing home charges" had been discussed. "There is a serious conflict of evidence and I'm not going to adjudicate on that," said Ms Harney.
In relation to the December health management meeting, Ms Harney said the Department never moved to seek legal advice from the Attorney General. This was despite indications that it had sought such advice in the minute of the next management meeting in March.
Asked whether she had confidence in Mr Martin, she said she would not stay in Government with someone if she did not have confidence in them.
She disagreed with a claim from Green Party health spokesman John Gormley that civil servants were being scapegoated in the report. "There will be nobody scapegoated," she said.
Labour's health spokeswoman Liz McManus quoted remarks the Taoiseach made in 1996, when in opposition, that Ministers should not hide behind the actions of civil servants.
She said the report noted that a folder containing the draft letter to the Attorney General had been seen in Mr Martin's outer office when he was minister for health.
Arguing that Mr Martin should resign from the Cabinet, she said a person in such a position should take responsibility for his actions.
Fine Gael health spokesman Liam Twomey questioned Ms Harney's assertion that she had a "policy role" in the Department and not a management role.
Ms Harney said it was clear from the report that more than 300,000 patients in public long-stay institutions should not have been charged in the last 30 years.
Stating that "we live by the law and we have to obey the law", she said such people were "wrongly charged and that should not have happened".
