THE STATE has deprived thousands of older people of their legal entitlement to nursing home care, potentially exposing taxpayers to several billion euro in compensation, a report by the Ombudsman and Information Commissioner Emily O’Reilly claims.
Successive governments have also repeatedly failed to amend the law to clarify entitlements to nursing home care forcing vulnerable elderly people to seek care in private homes, often at huge cost to themselves and families, it says.
Who Cares? An investigation into the right to nursing home care in Ireland concludes that access to nursing home care over four decades has been marked by “confusion, uncertainty, misinformation, inconsistency and inequity”.
It says the State has “failed consistently” to meet its obligation to provide nursing home care over this period and, as a result, now faces several hundred legal actions from people seeking compensation for costs incurred in availing of private nursing home care.
The Government has already admitted it illegally charged tens of thousands of older people who held medical cards while receiving public care in nursing homes up until 2004. Minister for Health Mary Harney set up a redress scheme in 2006, which has attracted 35,000 applications and is costing the State €450 million in compensation payments.
However, the Government has so far refused to admit liability in more than 300 legal cases taken by, or on behalf of, old people who were unable to receive nursing home care from the State because no public beds were available.
The report says the Department of Health has settled a dozen cases before they proceeded to a court hearing and paid “some level of payment to the plaintiffs”.
The ombudsman recommends the Department of Health and the HSE should formally acknowledge that the State has not been meeting its obligations under section 52 of the Health Act 2010.
The report however falls short of recommending a new redress scheme because the financial consequences for the State “would be enormous, potentially running to several billion euro”. Instead, it asks the Government to consider setting up some limited scheme to assist those families who have suffered serious financial hardship.
The report does not indicate how many people could be eligible for compensation but it notes the number of beds in private homes has increased from 6,932 in 1997 to 20,526 in 2009. The number of public beds has fallen from 13,594 in 1968 to 8,250 last year, it says.
It pinpoints wide regional disparities in the grants and subventions paid by the State to residents in private care homes. It also concludes there has been an absence of any consistent approach to the allocation of care places and the management of waiting lists.
In one case, the ombudsman uncovered an eight-year delay in processing an application for a public nursing home bed. Many people are forced to remain in acute hospitals while awaiting placement, the report says.
The State’s failure to amend the law over several decades to bring practice into harmony with its legal obligation reflects a “wider failure in government”, it adds.
“At the administrative and institutional level, the continuation over such a long period of such unacceptable practices suggests inflexibility, non-responsiveness and a reluctance to face reality. It also suggests, at times, a disregard for the law,” concludes the report.
The report also strongly criticises State agencies for displaying intransigence, lack of transparency and accountability and a very poor sense of the public interest.
The erosion of the past clear division between civil servants and politicians and a “lack of distance” between the health boards and the Department of Health is also criticised. This prevented the health boards from acting independently.
MAIN POINTS
The State has over four decades failed consistently to meet its obligation to provide nursing home care for those who need it.
Very many people over these decades have been deprived of their legal entitlement.
The situation has been allowed continue with the full knowledge and consent of the responsible State agencies.
Arising from these failures, the State is now facing several hundred legal actions from, or on behalf of, people seeking compensation for the costs incurred in having to avail of private nursing home care.
MAIN RECOMMENDATIONS
The Department of Health should acknowledge formally that the State has not been meeting its legal obligations in the area.
As compensation could run to several billion euro, the public interest is best served in not recommending any specific redress of financial compensation.
But the department should consider devising some limited scheme under which families which have suffered financial hardship might be assisted.
State should not react to these situations in legalistic terms but also consider human rights, State's finances and overall public interest. It should act speedily and consider fairness.