Taoiseach Leo Varadkar has said the State has always contested whether charging medical card holders for private nursing home care was illegal – adding that he would have signed off on such a strategy to contest these claims if asked.
He said the Attorney General is to submit a report to Cabinet next week which will be published afterwards.
It comes after a whistleblower claimed documents showed there was a secret government strategy to limit payouts to people on medical cards in private nursing homes by settling cases out of court once applications for documents are made.
In Leaders’ Questions on Tuesday, Sinn Féin president Mary Lou McDonald said that for decades the State “ripped off hundreds and thousands of elderly citizens and their families by unlawfully charging them for nursing home care”.
She said the “secret, calculated, legal strategy”, as revealed by the Mail on Sunday at the weekend, was pursued by successive governments despite advice received that the charges were illegal.
“Government continued to force vulnerable people to pay up, and this creation of real financial hardship pushed many into poverty as they struggled to afford the charges.
“Instead of the State and Government owning up to this horrendous treatment of elderly citizens, successive governments have pursued a heartless, legal and political strategy – a strategy designed by governments to draw out cases that they knew they could not win, to exhaust the ability of people to fund their legal challenges, and then to settle for significantly reduced awards, all the while keeping things hush-hush.”
Mr Varadkar denied the story being as serious as it first appeared, saying that the State’s legal strategy was to contest whether medical card holders were entitled to free private nursing home care.
“I believe this matter has been grossly misrepresented, including by you just now, in a very irresponsible way,” Mr Varadkar told Mrs McDonald. “Your claim that people in private nursing homes were illegally charged is not correct.”
He also said he must have been briefed on it, and that he would have approved the strategy if asked.
“I must have been briefed on it… But I can’t tell you when, I can’t tell you by whom, I can’t tell you in what depth, in what detail, or whether it was written or verbal.
“I don’t specifically know if I was asked to sign off on it being continued, but if I had been asked, deputy, I would have. This was a sound policy approach and a legitimate legal strategy by the government at the time, and previous governments, and government since.”
Mr Varadkar confirmed that the policy and legal approach pre-dates July 2011, and that officials and Attorneys General “advised in a consistent manner” on it.
He emphasised that this does not impact on anyone who is currently in nursing home care, and that the issue relates to medical card holders in private nursing homes.
“In the case of public nursing home charges, a scheme was put in place, widely publicised, and 485 million (euro) was paid to former residents and their families. This sum was considerably less than the estimate of five billion put on the potential liability in 2011 by the Department of Health.”
He continued: “It’s a legitimate legal strategy by government, and deputy, I would ask what the alternative was to this policy approach and this legal strategy?
“The alternative would have been to open up the scheme to people who had attended private nursing homes, even though we didn’t believe that they had a legal entitlement to any refunds.
“That wouldn’t have been right. Governments have a duty to protect the taxpayer, governments also have a duty to protect the health budget to make sure that the health budget gets spent on healthcare.
“It’s very clear that the State had strong defences in regard to this, that people who had medical cards, just as now, are not entitled to a refund through private care.”
He added: “The Attorney General is preparing a report for Cabinet for next Tuesday, which we will publish thereafter.
“Until such time as we receive those detailed, written briefings, there’s a limited amount that we can say on the matter because we do need to establish the facts, although you seem to know them all already, deputy.”
Statements would also be given to Dail Eireann and he said it would also be “appropriate” for Department of Health officials to make a presentation to the joint Oireachtas health committee.
In 2010, the Office of the Ombudsman Emily O’Reilly published an investigation based on more than 1,000 complaints made since 1985 on behalf of older people who were unable to get long-term nursing home care from the HSE, and as a result had to use private nursing homes.
The Ombudsman’s report stated that “health boards had, for decades, been charging medical card holders for in-patient services despite having been warned by several different legal advisers that the practice was illegal”.
She said that after four decades marked by “confusion, misinformation and inconsistency” the State was facing “several hundred legal actions” from families seeking compensation for the costs incurred in having to use private nursing homes.
This afternoon, People Before Profit’s Gino Kenny said that members of the health committee were to discuss whether to invite the health minister Stephen Donnelly, health secretary general Robert Watt, and the whistleblower who unveiled the issue, Shane Corr.
