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Submission to Oireachtas Joint Committee re the "Travers" report (3 June 2005)

Submission to Oireachtas Joint Committee re the "Travers" report (3 June 2005)

THE "TRAVERS" REPORT AND THE OMBUDSMAN'S REPORT ON NURSING HOME SUBVENTIONS, 2001

SUBMISSION TO OIREACHTAS JOINT COMMITTEE ON HEALTH & CHILDREN

3 JUNE 2005

This submission discusses issues raised in the Travers Report which are relevant to the Ombudsman's Report on Nursing Home Subventions which was published and presented to the Oireachtas in January 2001.

The submission deals with two issues of concern to the Ombudsman. First, it emerges from the Travers Report that the Department of Health and Children had legal advice and other evidence in its possession relating to the question of the entitlement of medical card holders to long-stay hospital services, which it did not pass on to the Ombudsman's Office during this Office's examination of this issue over successive years. Second, Chapter 8 of the Ombudsman's Nursing Homes Report identified system failures within government and commented that these failures had contributed to the problems which arose in relation to nursing homes subventions. The events of late 2004 within the Department of Health and Children are further evidence of those failures of government and this submission notes with regret that in the four years since the publication of that report, it appears that no action has been taken to address these problems.

These two issues are discussed in more detail below.

Legal advice and other evidence not passed on to the Ombudsman

Information contained in the Travers Report, which this Office had not previously been aware of, raises serious issues regarding the manner in which the Department of Health & Children dealt with the Office in the past.

From the late 1980s onwards, the Ombudsman dealt frequently with complaints about the entitlement of medical card holders to long-stay hospital services. Many of these cases concerned elderly people receiving what is now being termed "nursing home" care; some concerned people, not necessarily elderly, in long-stay care because of a psychiatric condition or some long-term debilitating illness. The complaints related to the fact that these patients were being charged despite the fact that they had medical cards and/or despite the fact that they had dependants. In many instances, the health board concerned would have revoked the medical card of the patient - though not on the basis of a proper and procedurally fair process. The Ombudsman's thinking on these cases was (a) that the type of care being provided constituted an "in-patient service"; (b) that such a service should be provided, as a matter of right and without charge, to medical card holders and to people without a medical card provided they had a dependant; and (c) that the practice of removing a medical card from a person, once hospitalised, was not tenable.

The Ombudsman discussed these matters frequently with the particular health boards involved and with the Department centrally. The logic of this approach was that, without the support of the Department, the individual health boards were not likely to change their practice. What actually happened was that health boards, often with the encouragement of the Department, changed their practice in particular cases; but, as is now well known, the impugned practices continued generally and the law was not changed to validate those practices.

During those years, the Ombudsman drew attention to these matters by way of items in his Annual Report to the Oireachtas. Annual Reports for the years 1988, 1989, 1991, 1992 and 1994 dealt specifically with the issue. The matter was referred to as a related issue in the report "Nursing Home Subventions" (January 2001) but it was something which the then Ombudsman very explicitly raised in his oral presentation to this Committee on 21 June 2001. Annual Reports for 2002 and 2003 again reported cases in which these matters figured. By any reckoning, this was an exhaustive effort to draw attention to practices which the Ombudsman believed to be invalid.

What we now know, arising from the Travers Report, is that throughout this extended period the Department and, to a lesser extent the health boards, had solid and uncontroverted evidence to support the position taken by the Ombudsman. Very regrettably, the Ombudsman was never made aware of this evidence.

The Travers Report shows the following:

• that in June 1976 the Department received legal advice that a person with a medical card (full eligibility) could retain eligibility for in-patient services irrespective of how long hospitalisation lasted; and that a hospital patient could only have a medical card removed where the health board was satisfied that the patient could provide general practitioner services for himself and his dependants; [Para. 3.4]
• that in July 1977 the Department received legal advice that its Circular 7/76 "would not stand up in court" in so far as it encouraged health boards to remove the medical card from long-stay patients; {Para. 3.7]
• that in July 1978 the Department received, via the Eastern Health Board, the legal advice of two eminent Senior Counsel which confirmed the opinion of July 1977; [Para. 3.10]
• that, over the years, the Department's legal adviser expressed dissatisfaction with the Department's continued reliance on Circular 7/76; [Para. 3.13]
• that an internal Departmental review of January 1982 acknowledged the legal invalidity of the practices in question; [Para. 3.14 - 3.16]
• that in February - March 1987 the then Minister for Health brought a Memorandum to Government with a legislative proposal to deal with the matter; [Para. 3.17 - 3.22]
• that in August 1992 the Department produced a report entitled "Review of Long Stay Charges Report" which again acknowledged the legal invalidity of the impugned practices. [Para. 3.25]

The Department omitted to inform the Ombudsman of these crucial developments and related legal advice. Disclosure of this information would have established, in the language of section 4 of the Ombudsman Act, 1980, that the Department's actions (and those of the health boards in reliance on the Department's position) were being "taken without proper authority".

In its discussions with the Ombudsman, the Department purported to have been unaware of the Supreme Court judgment in the McInerney case. (This judgment established that persons in long-term care, in health board institutions which provided nursing and other para-medical care, were receiving "in-patient" services as defined at section 51 of the Health Act, 1970. Persons with medical cards were, at that stage, entitled to "in-patient" services without charge.)Whereas at one point it appeared to accept the Ombudsman's analysis in full, it later resiled from its acceptance of a key aspect of that analysis and refused to accept that the Health Act, 1970 conferred a legally enforceable entitlement to in-patient services. (See Page 14, Note (1) of the report "Nursing Home Subventions" which is reproduced in the appendix to this submission ).

The failure of the Department to inform the Ombudsman of the detailed evidence, now revealed by the Travers Report, is very significant, for reasons discussed below. This Office has not discussed this failure with the Department and it may well be that there was no deliberate intention to withhold information or that the officials, with whom the Ombudsman dealt at specific meetings, were not aware of the evidence in question. However, the fact remains that in relation to the totality of the Ombudsman's contacts with the Department, over time, and for whatever reason, this evidence did not emerge.

Had the Ombudsman been aware that the Department had been provided, over successive years, with definitive legal advice on the matter, and been aware that the analysis he was offering was no more than that already provided to the Department by its own and health board legal advisers, he would have reported to the Oireachtas on the matter both more fully and more definitively. He would also have drawn the weight of evidence to this Committee's attention when he appeared before it on 21 June 2001. Furthermore, in dealing with complaints in this area, it is very likely that the Ombudsman would have completed investigations and made recommendations providing for appropriate redress. However, in a situation in which he did not know of this evidence, and despite the strength of the argument he was himself making, the Ombudsman stopped short of making recommendations in individual cases.

If it had been possible to provide the Oireachtas with a detailed analysis as outlined above, it could have ensured that the necessary legislative steps would have been taken either to validate the existing practice or to provide a valid legal alternative. Had the matter been resolved in 1991- 1992, when there were intensive discussions between the Department and the Ombudsman, a very substantial portion of the overpayments (now required to be refunded) would never have arisen.

Delay in addressing failures of government identified in the Ombudsman's Report

In making his presentation to this Committee on 21 June 2001, following the publication of the report "Nursing Home Subventions" (January 2001), my predecessor was very anxious that wider lessons should be learned. He commented:

"There were failures by many parts of the system within which government is carried out in Ireland. There was a failure of the Houses of the Oireachtas in supervising the making of the regulations, and in ensuring the accountability of successive Ministers. There was a breakdown in the accountability relationship between Ministers and senior civil servants and, at the very least, a distinct lack of transparency in that relationship. And there was an absence of any awareness on the part of the Department of Finance, the Department of Health and Children and the Health Boards, that people's entitlements and human rights cannot arbitrarily be put to one side in the interest of saving money or keeping within pre-determined expenditure limits. As someone who is genuinely concerned about the effectiveness of the Houses of the Oireachtas in their very important role of holding the Executive accountable in the area of people's entitlements, may I express the view that I detect that failure to exert themselves in this regard is creating a vacuum that is being increasingly filled by the Courts and the Judiciary. And I don't think that is a good thing constitutionally. If the Executive cannot fulfil the obligations that the Oireachtas puts on it by way of legislation, then the Executive should seek a solution involving the Houses."

These comments are as relevant in the present context as they were in the specific context of the nursing home subventions. In any case, the then Ombudsman went on to identify the issue of entitlement to long-stay hospital care as a "major outstanding issue".

The events of late 2004 within the Department of Health & Children more than justify the Ombudsman in having chosen to make the remarks cited above. Regrettably, his remarks have not been acted upon. In the four years which have intervened, it appears that no action has been taken to deal with the failures of government identified by him.

As an independent office holder who investigates the actions of "Departments of State", including the Executive, and who reports to the Oireachtas, I am keenly aware of my obligations to both parties. But it seems to me that, in the aftermath of the Travers Report, the nature of the relationship within the Executive, between Ministers and senior civil servants, requires urgent attention. Clear lines of responsibility and accountability need to be agreed.

Whatever the situation may have been in the particular instance investigated by Mr. Travers, the wider issue is that the model of government, meant to underpin and support the workings of government, is no longer fully relevant. Chapter 8 of the report "Nursing Home Subventions" (January 2001) is, to a large extent, a reflection on this fact. It is primarily for the Oireachtas itself, and for its members, to deal with this situation and to take whatever steps are necessary to ensure that the model of government fits the practice. However, I do feel that there has been a failure to date both by Ministers, and by members of the Oireachtas generally, to deal with the problems identified by my predecessor in 2001.

Emily O'Reilly

Ombudsman

Appendix

Note (1), Page 14 Ombudsman's Report on Nursing Home Subventions

(1) In commenting on a draft of this report, the Department disputed the view that the Health Acts confer a legally enforceable entitlement to hospital in-patient services. The Department argues that the Health Act, 1970 distinguishes between the terms "eligibility" and "entitlement" and that the former, in the context of the Health Act, provides for eligible people to avail of services. However, as the Health Act does not define the manner in which, or the extent to which, in-patient services should be provided, the Department argues that the extent of any health board's legal obligation in this regard is unclear. The Ombudsman does not accept that there is any doubt as to the obligation on health boards to provide in-patient services for eligible people. This is clearly established by Section 52(1) of the Health Act, 1970. The Ombudsman is not aware that the issue of entitlement to in-patient services has been considered by the Courts. However, the issue of entitlement to services under Section 62 of the Health Act, 1970 - which provides for medical and midwifery care for mothers - has been considered by the Supreme Court in Spruyt and Wates v Southern Health Board (1988). The structure of Section 62 is virtually identical with Section 52. What was at issue in Spruyt was whether the Southern Health Board should provide domiciliary midwifery services through a general practitioner or through a midwife. That there was a statutory obligation under Section 62 to provide the service was not in dispute and this obligation was restated by the Court.

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