Ministerial regulations, which are not debated publicly, are giving rise to systemic and continuing injustices, writes Emily O'Reilly
As I write this article, three files sit on my desk. They tell of the trauma experienced by three individual families as they cope with the major expense incurred in keeping their ill, elderly mothers in private nursing homes.
Several factors are common to all three. The mothers were placed in nursing homes only when they had become so ill that not even assisted homecare could meet their needs. All three have medical cards and were therefore entitled to public care. In each case, no public bed was available and all three were effectively forced into private care, with fees of up to €3,500 per month.
In all three cases, the value of the mother's residence has been taken into account by the health authorities as it assessed the level of State subvention to be provided, a relatively small fraction of the cost in most cases, but of critical importance to families struggling to pay the huge private fees.
In one case, the mother's house remains the only home of her single, middle-aged son. If the house is sold to help defray the nursing costs, he could be forced into the private rental sector.
In another case, the mother part-owns the home with her son. It has been suggested that he might "buy out" the mother's share in order to increase the subvention, but this could bring his borrowings to an unmanageable level.
In the third case, the relatively recent transfer of ownership of the family home from a mother to her son has allowed the authorities to assess its value nonetheless.
I will be investigating the actions of the health authorities in these cases, examining in particular the way in which discretion was used in assessing subvention levels.
The families accept that they have little option but to use private care, what is at issue is the subvention level. It may well be that the authorities acted appropriately, but irrespective of whether they did or did not, these cases and others illustrate the ongoing problems around nursing home care.
The recent Supreme Court ruling - that charges on medical card holders for nursing home care had been illegal for almost three decades - was narrowly focused.
While the State may have always intended that everyone should make some contribution towards their long-term care, ultimately, this was a question of public policy to be decided by the Oireachtas, and recently enacted legislation has now regularised that situation.
Whether it is also the State's intention that some families should have to make the enormous financial sacrifices they currently do to provide care where the State can't or won't, is a matter for national debate.
There are other loose ends. The repayment scheme proposed by the Department of Health and Children applies only to those who are or were living in public nursing homes, or in contracted beds in private nursing homes. Those forced into private care are not to be compensated and the outcome of court cases taken by some of those people may bring clarity to the issue.
Another issue concerns the way in which the administration "manages" primary legislation. Should the Oireachtas pass legislation for the introduction of schemes that are not buttressed by sufficient resources? Is it right that regulations, or so-called secondary legislation, can be introduced which fly in the face of the primary legislation?
The Travers Report clearly states that the Department of Health and Children knew all along that the manner in which it chose to interpret the 1976 regulations on in-patient services, and what is now termed "nursing home" care, was illegal.
Yet this illegality was allowed to continue for three decades when a simple legislative amendment could have sorted out the difficulty and saved today's taxpayers from a massive compensation bill.
It is not the first time that this office has seen ministerial regulations being used to administer areas which might have proved controversial if dealt with through primary legislation.
The ombudsman's 1999 report, Lost Pensions Arrears, described the plight of some 200 pensioners who discovered that, because they were late in claiming a contributory pension, they were penalised with the loss of substantial pension arrears, amounting in one particular case to almost €46,000.
These penalties affected widowed and older people, and if challenged in court, might well have been found to be invalid.
The office's report led to a fairer system of penalties which was consistent with primary legislation and payment of arrears to the complainants and to many other pensioners who had been unfairly penalised.
Common to both issues is older people and the manner in which their interests are provided for in law. The question must be asked, in the light of recent scandals, who is looking after their interests? Who is protecting those people who cherished us as children, and now look to be cherished themselves towards the end of their lives?
There is no effective monitoring of ministerial regulations, or so-called secondary legislation, by the Oireachtas and this is an issue which has been raised constantly by this office almost since its inception in 1984.
The consequence has been that Ministers and their departments have been facilitated in fine-tuning issues such as nursing home care and pensions administration without the need for the full debate which ensues when primary legislation is proposed or amended. Thus, the proposed changes are viewed as the responsibility of individual Ministers and not as the collective responsibility of the Oireachtas.
This office called for reforms in its 1999 pensions report, in its 2001 nursing homes report and, most recently, in its submission on the Travers Report to the Joint Oireachtas Committee on Health and Children.
As these issues demonstrate, many of the most serious and systemic complaints dealt with by my office have resulted from faulty ministerial regulations. It is my responsibility as Ombudsman to secure remedies for those who, as a result, suffer injustice.
But is it not time to address the weaknesses in our system of government which constantly give rise to this injustice?