The State has paid out a total of “single-digit millions” to settle legal claims for private nursing home charges paid by medical card holders, the Department of Health’s top official has said.
Robert Watt, the department’s secretary general, told the Oireachtas health committee on Wednesday it was “highly unlikely” he would propose a compensation scheme to Government to refund people entitled to public nursing home care who had to pay for private care in the years to 2004.
He was taking questions on the recent controversy that emerged from publicly disclosed government memos showing how the State followed a litigation strategy to defend legal claims fully and settle to avoid discovery out of fear of losing a case and triggering further claims.
Mr Watt told the committee it was accepted in 2004 that there was “a flawed legal basis” for charging people eligible for public nursing home care and this was regularised with new legislation in 2005 to pay for public care and to create a repayment scheme for pre-2005 charges.
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Since then, the department has “managed” legal actions on “a case-by-case basis” for claims where the State failed to provide public nursing home care in private nursing homes free of charge to those who had full eligibility under the 1970 Health Act, he said.
Mr Watt said the State had looked for “a test case” to prove if there was a legal basis, upheld in court, for those entitled to public care who had to pay for private care but “a suitable one didn’t come and ultimately then this sort of fell away because the cases stopped coming”.
He told the committee the State has settled more than 100 cases relating to private nursing home charges paying out the “single-digit millions” to people who had sued. He declined to give the exact figure saying he was “tasked with protecting the taxpayer’s interest as well”.
Fine Gael Senator Martin Conway said not disclosing the exact figure was “an outrage”.
Mr Watt told the committee that there were about 200 legal cases outstanding for private care.
Mr Watt told Fine Gael Senator Sean Kyne there were cases still open when asked whether the Government would open a redress scheme for people who paid private nursing home fees.
The last case was settled by the State in 2017, and there were still some active cases, he said.
“I would be surprised if there is a policy change in relation to private nursing homes,” he said.
Asked about redress for those who did not have the means to pay for care, Mr Watt said: “Time has moved on in many of these cases. These are historical issues that predate 2004.”
Mr Watt disputed the characterisation of the State’s litigation strategy in the media and public debate in recent weeks, saying it was reasonable for the State to adopt risk mitigation.
He acknowledged the position before the introduction of the Fair Deal scheme was “unfair” but that the 2009 scheme was an “extremely fair policy” that got the correct balance with people of means contributing to the cost of private care with the State covering the balance
“It was clearly unfair that we didn’t have a system of treating everybody the same,” he said of the situation before the introduction of the Fair Deal State subsidy scheme.
Sinn Féin health spokesman David Cullinane questioned Mr Watt on vulnerable people who may be owed money from being denied disability allowances when in residential care up to 1996.
He referred to a government memo disclosed by Department of Health whistleblower Shane Corr in which it was said there were residents at other disability care institutions “who would have similar potential claims” to three institutions who had lodged claims for their residents.
The 2011 memo referred to a potential liability to the State of €360 million from these claims.
Mr Watt said the department did not accept the estimate or understand the basis for it.
Mr Cullinane said a “trawl” needed to be carried out as it would be “very unfair” if there were people “left behind” on refunds. He hoped the department “would look at it from that perspective and would not be penny pinching and trying to avoid paying them.”
“Finding who they are now at this time remove might be a challenge,” said Mr Watt.
