The co-author of the 2010 Who Cares Report, Fintan Butler, has rejected the Government’s assertion that the strategy for dealing with nursing home charges was "legitimate".
Mr Butler told RTÉ radio’s Morning Ireland that he did not think most people would accept that as a reasonable position. The "so-called legitimate strategy" was denying people’s rights, he said.
“First of all, it's preventing the issue being clarified legally. It's acting in a very hostile and aggressive manner towards people who are the victims of all of this. And essentially what's happening is the strategy is treating this litigation as if it was simply another piece of litigation among equals.
This is not litigation among equals. This is the strength of the State against its own citizens.
“This is not litigation among equals. This is the strength of the State against its own citizens.”
Mr Butler pointed out that in the past the Ombudsman had recommended some form of redress and that there should be some form of action that could be taken by vulnerable groups in “class action type situations” where their rights could be established and protected without individual people having to put themselves at risk by taking court action.
“The present controversy is not about people who were in public nursing homes, it's about people who by default had to go into a private nursing home.
“I heard somebody say, some politician say on the radio yesterday, ‘if you choose to go privately, you cannot expect the state to pick up the cost’. Now, that's unfortunately a misrepresentation of what was happening.
“Mostly these were people who did not have a choice. There was a shortage of public nursing home places, people needed to go somewhere, so they ended up in private care.”
Mr Butler said it was surprising that the issue had not yet been dealt with given the Ombudsman’s detailed report in 2010. It was now an historical issue, with nothing to do with the current level of entitlements.
“It's about the situation of people, who, up to about 2006, 2007, who had to pay for private care because they chose to go elsewhere. And unlike people who went into public nursing homes who were refunded costs incurred back in the late 2000, these people have never been compensated.
What's annoying is that there has been a strategy to prevent the matter ever being legally clarified.
“And the Department of Health maintains the position that you have no entitlement to compensation. What's annoying is that there has been a strategy to prevent the matter ever being legally clarified. There has never been any opportunity to test that definitively, both in the court case and the strategy has been to prevent that ever being clarified.
“I just wonder whether it's actually practical, feasible to test it in court because due to the court actions initiated by some, a very small minority of people affected, the most recent one was in 2013. The vast majority of these cases were initiated in 2005, 2006. I don't know the procedures in court, but you can revive a procedure which was begun and lapsed.
“The Ombudsman did recommend some kind of redress, but not the full compensation. It was at a very critical time for the state finances.”
Mr Butler added that he thought the level of exposure to redress had been “grossly exaggerated".
“I don't really know what the cost might be, but it doesn't seem very likely that there will now be much money ever paid out to the previous people because except the government introduces some new redress scheme.”
