Ombudsman Emily O'Reilly has said she believes that the State could face compensation claims from patients who had to avail of private nursing-home care because of a lack of public facilities.
In her latest annual report, published yesterday, Ms O'Reilly said the recent nursing home controversy, under which the State is facing a compensation bill of around €1 billion, centred solely on patients in public institutions.
She said she believed that everybody in the State was entitled to the provision of inpatient services which could either be delivered directly by the HSE or by way of a contract arrangement with a private institution.
"The Supreme Court, in its judgment on the illegal [nursing home] charges, did not address the issue of those medical-card holders who could not be provided with a bed in a public institution, due to a shortage of such beds, and who were directed by the health board towards private care without in any way acknowledging their own responsibilities in the area.
"In addition, the Supreme Court did not deal with the issue of those patients who did not hold medical cards and who had similarly been directed by the health boards towards private care The current legislation does not address this issue, and I have little doubt but that such cases will continue to be the subject of complaint to my office and also eventually the subject of legal proceedings," said Ms O'Reilly.
In her report she maintained that those patients who were directed towards private nursing homes and who made private arrangements had an arguable case that they were acting out of "practical compulsion or necessity". She suggested they could have a case for compensation.
Ms O'Reilly also called for greater scrutiny by the Dáil of regulations or secondary legislation introduced by ministers.
She said two of the biggest issues which her office had dealt with - the nursing-home charges and pension arrears - came from secondary legislation.
Ms O'Reilly said that, while the Oireachtas passed legislation allowing ministers to make regulations, subsequently there was effectively no monitoring of this secondary legislation when signed by ministers.
Almost 11,000 people contacted the Ombudsman's office last year, and just over 2,000 valid complaints were received. More than 43 per cent related to Government departments, 36 per cent to local authorities, 17.5 per cent to health boards and 3 per cent to An Post, said Ms O'Reilly.
She also forecast that her office would receive complaints about the new system of charges for medical-card patients in public nursing homes which come into effect from later this month.
She said that the legislation allowed health authorities a discretion to reduce or waive such charges to avoid hardship and she anticipated receiving complaints about how this was exercised.
She also predicted that the Government's planned repayment scheme for people in nursing homes who were illegally charged would ultimately be challenged in the courts.
Highlighting the theme of her 2004 report - the Ombudsman and Older People - she criticised what she said was a general negative attitude towards ageing and the perception in richer Western countries that increased numbers of older people were a burden.
She said many complaints she dealt with concerning older people stemmed from the failure of public bodies to pay due concern to the fact that complainants were elderly and might have difficulty in understanding complex forms or in obeying detailed regulations or guidelines about benefits or other schemes.
