Fintan O’Toole: State has a habit of paying up to the strong and harassing the weak

In the unfolding of scandals, the killer question is: who knew what and when? But in the scandal of vulnerable elderly people being illegally charged for nursing home care, everybody knew everything nearly all the time.

This issue has resurfaced now because of revelations about the State’s legal strategy to fight claims for compensation by families who had to pay for private care even though the law gave them a right to free care in public homes.

In the controversy that has followed, the focus has been on which ministers for health were briefed about this strategy and when. This is not irrelevant, but it does miss a much larger point: this scandal was out in the open.

Twenty-two years ago, on January 27th, 2001, I wrote in this column about “the systematic ripping off of elderly people in nursing homes by health boards and the Department of Health”. I returned to the issue twice in the following two months.

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In 2005, I suggested here that then minister for health, Micheál Martin, should resign after he told the Oireachtas health committee that he accepted no responsibility at all for the abysmal conduct of his department.

I’d love to be able to claim that this was brilliant investigative journalism. It wasn’t. In 2001, I was anticipating and then reflecting on an inquiry by the then ombudsman, Kevin Murphy.

Shortly afterwards, Murphy published a report showing that the State had been illegally taking money from the pensions of nursing home residents. He followed this up by showing that the maintenance charges were also unlawful.

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Even at that stage, this was already an old story. Pretty much everyone who came into contact with this issue knew that the State was, in essence, stealing money from vulnerable older people.

It all started nearly half a century ago, with the innocuous-sounding Ministerial Regulation No 7 of 1976. It advised the regional health boards, which then ran the system, how to charge residents with medical cards for their upkeep.

But civil servants knew this was illegal because the department’s own in-house legal adviser told them so. He repeatedly pointed out that if these residents were to be charged, the law would have to be changed by the Oireachtas.

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In 1978, the Eastern Health Board sought a legal opinion. It said the charges were illegal. The Registrar of the Office of the Wards of Court said likewise and invited the department to challenge his conclusion in the courts. It didn’t. An internal departmental review in 1982 acknowledged that the practice was illegal.

Ignoring these warnings was gross administrative malpractice. It is the worst episode of bureaucratic malfeasance in the history of the State.

And it is not credible that politicians didn’t know about it – they were surely meeting families in their constituency clinics who were in distress because of it.

But by 2001 they all knew about it with absolute certainty. It was public knowledge. Yet all that really happened was that the obfuscation became deeper and apparently more deliberate.

In January 2004, the department’s management committee prepared a letter to the attorney general asking for a definitive ruling. The draft was sent to the secretary general for his signature.

The State continues to fight on in a cause that is not just lost but despicable. Let’s not kid ourselves about the reason: because the victims of all of this were weak and vulnerable

The committee’s minutes for March 2004 recorded that this letter had been signed and sent. But it wasn’t. No one could ever explain subsequently why the official records were false.

When Mary Harney as minister finally asked John Travers to investigate, he found that a crucial file in the department had gone missing. Again, no one could explain how this happened. It turned out, too, that most of what Travers uncovered had been withheld by the department from the ombudsman in his previous inquiry.

One of the most disgusting aspects of this scandal is that, because it knew the charges were illegal, the department did not challenge those who refused to pay them – which was, usually, those who could afford legal advice. It hammered only those who were too poor to hire a lawyer or too ill or isolated to be able to act.

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And, between 1976 and 2004, elected officials did nothing to stop this rogue operation. They knew what it meant for vulnerable citizens – and they also must have understood the immense seriousness of part of the State repeatedly and knowingly flouting the law.

But they let it happen, held nobody to account and refused to be held accountable themselves.

This is literally indefensible. No court is ever going to find that this was all okay – if it did, we’d be in very deep trouble.

And yet, the State continues to fight on in a cause that is not just lost but despicable. Let’s not kid ourselves about the reason: because the victims of all of this were weak and vulnerable.

This is not about protecting public money. The State did not fight the church in court to get it to pay for all the abuse it inflicted on children. It has not fought the suppliers of faulty cement blocks or the builders of shoddy apartments.

It pays up to the strong – even when the State is not primarily culpable. It harasses the weak – even when its own responsibility is utterly undeniable.