The Ombudsman, Ms Emily O'Reilly, last night held open the prospect of a series of findings being made against the State's health authorities in favour of medical card holders who have been denied free nursing home care.
The President, Mrs McAleese, is expected to decide by tomorrow whether to refer to the Supreme Court the controversial Bill requiring elderly people to pay up to 80 per cent of their pensions towards the cost of their nursing home care.
In a pointed intervention in the controversy yesterday, Ms O'Reilly said the current position was that health boards were obliged to provide nursing home care for all, and to provide it free of charge to medical card holders. This was the position as outlined by her predecessor, Mr Kevin Murphy, she said, but disputed by the Government until recently.
She said that on foot of the recent controversy and the Government's decision to give ex gratia payments of €2,000 to those wrongfully charged in the past, she now expected to receive new complaints from and on behalf of elderly people. She would recommend redress against health boards or the Department of Health in cases where she found there had been "maladministration", she said.
She said that for some time the Department of Health had disputed the Ombudsman's interpretation of the law, arguing that the Health Acts do not confer a legally enforceable entitlement to hospital inpatient services.
However, the recent opinion furnished by the Attorney General to the Department of Health and Children appears to be to the effect that the original advice circulated by the Department provided a "flawed basis" upon which medical cards were withdrawn.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."
The Council of State will meet at Áras an Uachtaráin this afternoon, having been summoned by the President to discuss the Health Amendment (No 2) Bill. While the council advises the President on the question of whether to refer the legislation, Mrs McAleese has absolute discretion on whether to refer the Bill to the Supreme Court.
The President has until Friday - Christmas Eve - either to sign the Bill or refer it to the Supreme Court.
A spokeswoman for the President said yesterday that because the Government had requested an early signature, a decision was expected by tomorrow, possibly as early as this evening.
In a separate development yesterday, the Government published letters exchanged between the then ministers for health and finance, Mr Micheál Martin and Mr Charlie McCreevy, in 2001. These show that in April 2001, Mr Martin drew Mr McCreevy's attention to a report from the Ombudsman which said that under the law, "any person in need of nursing home care has a statutory entitlement to be provided with this service by a health board", either in a public or private nursing home.
Mr Martin said his Department's advice differed from this.