Supreme Court thwarts parsimoniousness intent

Angola, Brian Cowen called the Department of Health, on the basis that like that war-ravaged south-west African state, it was…

Angola, Brian Cowen called the Department of Health, on the basis that like that war-ravaged south-west African state, it was full of hidden landmines.

Within weeks of volunteering for a tour of duty there, Mary Harney stepped on a big one. This particular one, she pointed out yesterday, had been laid long before her time.

Since a 1976 Supreme Court judgment there had been a question mark over the practice of charging medical card holders for long-term accommodation in State institutions.

In 1978, she said, a former Chief Justice [ then Senior Counsel Mr Ronan Keane] advised a health board that there may be legal problems with the practice.

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The Ombudsman warned that the practice was wrong in 2001. In December 2003, a meeting between the Minister for Health, Mr Martin, the Department of Health management and chief executives of health boards heard that there were "varying views" on the matter, and resolved to seek a "definitive legal assessment" of the situation.

Despite these warnings, the practice went on, the landmine lay there unexploded, waiting for someone not treading very carefully.

Ms Harney carefully laid out her account yesterday. She arrived into the Department of Health entirely unaware of this matter. Once the issue had been brought to her attention - within weeks of her becoming Minister for Health - she sought the advice of the Attorney General.

Once he advised that the system was indeed legally dodgy, she had immediately told the health boards that they had to stop charging, and she had brought in legislation.

Having quite reasonably exonerated herself of blame for the mess, she made it clear that there were others deserving of blame, and that she was working to identify these people.

Referring to her actions, she said: "It is a great great pity that over the past 29 years this wasn't done. In 1976 the Supreme Court made a ruling in relation to this matter. And ever since the charges were raised on the basis of no legal authority.

"I think that raises huge issues and that is why I have asked John Travers to hold an investigation into how that could have happened." There had been 11 governments, 40 health boards and hundreds of staff involved since, she said.

"I'm happy that I identified the legal problem and sought to correct it. Without sounding arrogant it's an awful pity it didn't happen before, given the legal advice we now know was available, and time will tell why it didn't happen."

Going even further in the Dáil last night, she withdrew her assertion, made in December, that the charges had been imposed "in good faith".

This was because of the Supreme Court judgment in 1976 and the legal advice of 1978 which had questioned the legality of what was going on, but appeared to have been ignored in a case of "systemic maladministration".

What Ms Harney and the Government must take the blame for, however, is the failed attempt to avoid paying back the money that had been illegally taken.

When bringing in legislation before Christmas to make it legal to charge the elderly for staying in State-run institutions from now on, the Government also had a go at trying to hang on to the wrongly-taken money from the past.

At the time, this took away from any kudos the Government could claim from being seen to fix up a mess from the past.

If it was wrong for the State to take the money in the first place, then it was wrong to try to keep it. Which is exactly what the Supreme Court said yesterday.

It hasn't been a great episode for the Government as it tries to dispense with the old "arrogant" image and project it as a caring administration.

The legislation was rushed through the Oireachtas and guillotined despite Opposition demands for more debate. Opposition warnings, that the attempt to retrospectively legalise the illegal charges would be found unconstitutional, were dismissed. The Government's gesture towards those who were charged illegally seems little more than a sop now.

Early this year, the Health Services Executive began crediting patient accounts with the €2,000 "gesture of goodwill". They may have to pay up to 10 times that amount now.

Ms Harney said yesterday that she had still not decided when and how to to-reintroduce legislation to allow elderly people be charged for long-term care in State-run institutions in the future.

It was only the attempt to retrospectively legalise the past charges that was struck down. Charges will bring in some €120 million per annum in the future, so there is little doubt that the Government will bring forward a new Bill with the retrospective element removed.

Precedents exist for the repayment of money illegally taken, as in the 1995 case when women who received reduced social welfare payments over many years were repaid £260 million - a very considerable sum at the time.

"There is no question of making people fight to get their money back," said Ms Harney generously yesterday.

But before the Supreme Court thwarted her plans, the intention was to ensure they didn't get it back at all.