The report into illegal charges for residential health care has found that officials in the Department of Health and Children were responsible a "long-term systematic failure" that allowed the practice to continue for nearly three decades.
However, politicians are not completely exonerated, with the 170-page report by former Forfás head John Travers finding there were "shortcomings" by successive Governments in their handling of the issue.
The report, which was released to the public today, was prepared at the behest of Tánaiste Mary Harney. She sought advice on the issue from the Attorney General following her appointment as Minister for Health last September.
Up to 300,000 people could be affected, at a cost of up to €2 billion to the State. Ms Harney said today it was "entirely wrong" that medical card holders should have been charged for care in State homes and repayments would be made "quickly, fairly and efficiently" to those affected.
The Secretary General of the Department of Health and Children Michael Kelly has been removed from his post in the wake of the report.
Mr Travers's investigation found that Department officials were "well aware" that legal concerns surrounded the practice of charges for long-term care in health board institutions from the outset of the introduction of the practice in 1976.
He said these concerns were raised on numerous occasions by various parties, including health board lawyers and the Department's own officials and legal advisors.
Mr Travers reports a serious conflict between accounts by Mr Kelly and Mr Martin. The Minister insisted he was unaware of the charges, while Mr Kelly said he spoke to Mr Martin on the issue during a break in the December 2003 meeting at the Gresham Hotel.
The Department Secretary also told Mr Travers that he assumed Mr Martin would also be briefed by junior ministers Ivor Callely and Tim O'Malley at the meeting. Mr Kelly admitted that he overlooked to send a Department submission to the Attorney General seeking legal advice due to pressure of work.
Mr Kelly also said that he spoke to Mr Martin in March 2004 about the possibility of introducing an amendment to legislation to address the issue.
However, Mr Travers found no evidence that former Minister for Health Micheál Martin was informed of these concerns. "Absolutely no documentation was made available to me to demonstrate that or to indicate that the minister (Martin) had been fully and adequately briefed by the department on the serious nature of the issues," the report states.
The report discovered that concerns raised by a number of health boards about the legitimacy of the charges were "ignored" by Department officials in 2001.
It also found "no single reason" that explains why there was an almost 30-year delay in seeking advice from the Attorney General on the charges. Rather, there were a range of reasons why the practice was continued, including the belief that the underlying principle behind the charges was correct and the view that if the charges were challenged, they would be "defensible".
Concerns over maintaining revenue streams for health boards in a Department, where funding was always an issue, were also a factor.
"There were also shortcomings at a political level over the years since 1976 in not probing and questioning more strongly and assiduously the issues underlying the practices of charges ... even if, or perhaps even because, the analyses and briefings being provided by officials in the Department of Health and Children appears to be deficient in many respects.
"These shortcomings were, however, of a nature, scale, substance and order of magnitude considerably less than those of the system of public administration."
Mr Travers also notes a crucial file on the charges issue has gone missing from the Department.
Mr Travers notes the Department decided in December 2003 to seek legal opinion from the Attorney General on the issue at a meeting of the Department's Management Advisory Committee and health boards in Dublin. However, no action was taken for nine months.
"This failure to follow up on the letter to the Attorney General appears inexplicable. That failure rests primarily with the management of the Department ... There is no documentation that I have seen in the records available for me ... that the minister [Mr Martin] was informed."
Mr Travers reports that proposals to end the practice were effectively "parked" by Department of Health officials when the Health Strategy was introduced in 2001. Officials also prepared a draft Government memorandum in 2002 which, he says, would have "rectified the situation" if it had been presented to the minister, Mr Martin. However, this was not done.
