The Government's shabby treatment of elderly people in State-run nursing homes, in seeking to retain funds illegally taken, has been rejected by the Supreme Court.
The development was facilitated by President McAleese who referred the flawed legislation for examination. The opposition parties, with eyes on the forthcoming by-elections, in Meath and North Kildare have accused the Minister for Health, Ms Harney, of incompetence, arrogance and poor political judgment.
It is not a comfortable position for the Government, especially in light of recent efforts to cultivate a caring image. But the Supreme Court has delivered a well-deserved rebuke. Vulnerable citizens had their incomes unlawfully sequestered and when the Government was advised about the situation, it rushed legislation through designed to prevent the recovery of monies illegally seized.
Scandalous treatment of old-age pensioners is nothing new. For thirty years, the rights and human dignity of persons in nursing care have been trampled upon. When health boards were informed that elderly medical card holders were entitled to basic care and accommodation, they simply withdrew the medical cards. They also insisted the means of elderly parents included the incomes of adult children, until the practice was declared illegal. In addition, when medical cards were granted on a statutory basis to everyone over 70 years of age, they continued with the illegal charges, provided no formal objections were made.
No wonder the Supreme Court found the behaviour of the Government, in seeking to retain the funds gained through such abuse, to be unconstitutional. It rejected the contention that the cost of making restitution - estimated at €500 million by the Department of Health - justified the approach. Only an extreme financial crisis would do that, it found. But it offered some comfort to the Government by indicating that a six-year statute of limitation will apply to any claims.
The Minister for Health now has an opportunity to put things right. She inherited much of the present mess. But the decision to proceed with flawed legislation and to mount an attack on the legal rights of very vulnerable people happened on her watch. Structures and procedures must be put in place to reimburse those elderly people who were illegally charged. Refunds must be made quickly and, if possible, without recourse to the courts. The Minister has already arranged for refunds of up to €2,000 to be made to affected persons and it may be possible to expand that scheme with the assistance of nursing home databases. New legislation will be required to give effect to the Supreme Court ruling and to place future charges on a proper, statutory footing. The cost of compensating pensioners, however, should not be at the expense of other patients. A special supplementary health estimate should be introduced.