The Government has decided to invoke the six-year statute of limitations in connection with repayments to the estates of old age pensioners who were illegally charged for nursing home care.
A time limit will not, however, apply to repayments for those still living in nursing homes, for the estates of those who died within the past six years and in other exceptional cases. By making this concession, the Tánaiste and Minister for Health, Mary Harney, has sought to minimise the prospect of a successful constitutional challenge to forthcoming legislation while taking account of the Supreme Court judgment.
The estimated cost to the Exchequer of repaying the illegal deductions has crept up from €500 million at the time of the Supreme Court hearing to about €1 billion today. Both figures were produced by the Department of Health and there are doubts about their accuracy. What is beyond question, however, is that other services are likely to suffer as a consequence. And the Government decision to provide medical cards to all citizens over 70 years of age on a statutory basis, in 2001, has been at the very heart of this administrative shambles.
Even as Ms Harney brought her memorandum to Cabinet, an elderly old age pensioner with a medical card initiated a High Court action claiming she was entitled to free in-patient services in a private nursing home because the State had failed in its duty to provide public nursing home care. She is seeking monetary loss and damages and should she succeed, the financial implications for the State could be considerable.
Nearly 30 years ago, the Supreme Court ruled that medical card-holders were entitled to free in-patient care, including nursing home care. Health boards subverted that ruling by withdrawing non-statutory medical cards and then charging for care in public homes. They also applied strict means-testing to subventions for private nursing home care. At one stage, they acted illegally by insisting the means of elderly parents should include the incomes of their adult children. Last January, the Supreme Court found charges for public nursing home care to be illegal, at least since the establishment of medical cards on a statutory basis, four years ago.
The caution of the Minister for Health on this occasion is in stark contrast to the haste in which she rushed legislation through the Dáil last Christmas. That is all to the good. It is a complex area where patients and their families have been subjected to political and bureaucratic abuse. Early last year, before the current controversy arose, Ms Harney questioned whether families who benefited from an inheritance should pay for nursing home care. But the subject became politically heated and was dropped. In spite of that, there is now an urgent need for transparency in relation to entitlements, charges and means testing.
Above all, any system of nursing home care for the elderly must be seen to be fair and equitable.