THE 12 cases settled by the State after legal action was initiated by individuals who had to pay for private nursing home care were only settled because of “administrative errors”, the Minister for Health Mary Harney said yesterday.
Giving some detail on the reasons why some of the 400 or so cases taken against the State had been settled, she said: “They were generally cases where administrative errors occurred, where somebody may have been on a public waiting list and wasn’t told when a public bed became available”.
A report by ombudsman Emily O’Reilly on Tuesday revealed that 12 settlements had been reached. The report said the Health Act 1970 provided a legal right to be provided with nursing home care and that people should not have had to take up private care, other than as a matter of personal choice.
Ms Harney claimed the ombudsman was incorrect.
“The strong legal advice to the Government is that she’s wrong. There was never a situation where people are eligible for something but entitled to it regardless of resources . . . eligibility in itself doesn’t guarantee entitlement, that is resource capped,” she said.
Asked if people could really be sure of their rights to free nursing home care under the 1970 Health Act, Ms Harney said a number of people had initiated legal actions but had dropped them.
“Of the 400 cases that were initiated, some have been dropped, 12 were settled and the others will be vigorously contested,” she said.
Asked if the State had been trying to cover up an entitlement by entering into confidential settlements with some of those who took legal action, she said: “No, I don’t accept that. The State has to take legal advice and if there’s any suggestion that we should pay compensation on the scale suggested then that would be at the expense of today’s services . . . that’s something I couldn’t countenance”.
The ombudsman's report, Who Cares? – An investigation into the right to nursing home care in Ireland, suggested the anomaly could potentially expose taxpayers to billions in compensation claims. However, given the recession, Ms O'Reilly was only suggesting the Department of Health consider a limited compensation scheme.
Ms Harney, who was speaking after opening a nursing conference in Dublin, stressed the strong legal advice both from the Attorney General and “outside counsel” was that the State should vigorously defend cases which were being taken.
“I understand there’s one imminent in the courts and that will be vigorously contested,” she said.
Ms Harney claimed on Tuesday that the ombudsman had acted outside her remit in compiling her report as her remit did not cover “the wider government process” or the “conduct of litigation”.
Taoiseach Brian Cowen made the same assertion in the Dáil yesterday.
Fine Gael’s health spokesman Dr James Reilly said the ombudsman’s report had exposed wide-ranging failures in the handling of long-term care for older people.
Consultant geriatrician Prof Des O’Neill praised the ombudsman’s report and said a significant injustice had been done to those who had to pay for nursing home care up until last year when the so-called Fair Deal scheme was introduced.