A report by the Attorney General into nursing home charges has found that the legal strategy employed by the Government was “sound, accurate and appropriate”.
The report was compiled by Attorney General Rossa Fanning following a week of controversy into the legal strategies used by successive Governments to settle cases where people had to pay private nursing home fees out of court.
In 1970, it was decided that people with medical cards were entitled to free nursing home stays. However, some medical cardholders were placed in private homes due to capacity constraints and they paid for care.
Documents from a Department of Health whistleblower suggested that the State would not win court cases on this matter and that they should be settled out of court.
This legal strategy has been widely criticised by the opposition.
However, Mr Fanning’s 30-page report stated that the State “acted prudently” in settling claims rather than “risking an adverse outcome in a test case”, which could have “provoked many more historic cases, with a very substantial potential exposure for the taxpayer”.
He noted that this controversy took place during “an era in which the Government’s finances were very strained.
He argued that “there must be clear rules on eligibility that lay out what citizens are entitled to.
Mr Fanning said that a citizen’s choice to enter a private nursing home was “a benefit that the State never agreed to provide”.
He said that while it can be “tempting” to say that the State is being “cruel or unfair” to those who are “deprived of a benefit”, the State does not have unlimited resources.
The Attorney General denied that this was a “secret” strategy, saying that was an “improper” way to describe it; He argued that both sides in a legal argument typically do not tell the other side their plans.
He insisted that “at no stage did the Oireachtas ever legislate to make the provision of private nursing home care free to all persons in nursing homes of their own choice”.
He wrote: “At certain times 30 or 40 years ago there may simply have been no public nursing home beds available.
“That position would not have entitled any citizen who procured a private nursing home bed to demand that the State pay for it.
“In a very similar way, a citizen can, and frequently will, seek to avail of private education or private medical care but there is no obvious legal basis by which they can retrospectively compel the State to discharge the cost of it.”
He stated that many of the cases being put forward by people were that they were “entitled” to nursing home care for free and should have been reimbursed for private fees.
He continued: “I am satisfied that the legal advice furnished by the Office in respect of the litigation concerning charges levied for private nursing home care was sound, accurate and appropriate.”
Mr Fanning also reported on the Disabled Persons Maintenance Allowance (DPMA) controversy. This suggests that 12,000 people had this allowance taken from them when they entered residential care. It was also suggested that Government had engaged in confidential settlements with those involved.
He found that there is “no positive legal duty to make retrospective payments” to those affected.
Mr Fanning concluded his report by stating that in both the nursing home and disability cases “there is and was nothing inappropriate” in the legal advice offered to Governments.
Following Mr Fanning’s report, Health Minister Stephen Donelly and Social Protection Minister Heather Humphreys will consider it and revert to Government within three months. The Department of Health will also conduct a “lookback” exercise.
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