Attorney General’s nursing home charges report fails to take into account State’s moral duty - Bacik

The Attorney General’s report on nursing home charges misses an “overall pattern” in the treatment of people denied their legal rights, the leader of the Labour Party has said, arguing it fails to take into account the moral duty of the State to its citizens.

Ivana Bacik told RTÉ's Morning Ireland programme that there should be a redress scheme for people impacted, arguing that the report conflated the “narrow interest of the Government with what is in the public interest”.

She said people who did not have the resources to take a legal challenge against the State were unable to vindicate their rights, while those who took cases often arrived at a settlement agreement.

“The Government and the State are therefore not acting to vindicate the rights of citizens,” she said, saying the State was “failing to take into account their ethical obligations.”

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The Government published a strong defence by Attorney General (AG) Rossa Fanning of the historic stance of the State on the issue of legal cases being taken stemming from the imposition of private nursing home charges on patients with a medical card.

[ Attorney General’s nursing home charges report as much about politics as the law ]

[ Nursing home charges advice ‘sound, accurate and appropriate’, Attorney General concludes ]

The AG argued the practice of settling claims taken before they came to court was “sound, accurate and appropriate”, and while not disclosing the precise details of his office’s advice to successive governments on the issue, argued the State would have a bona fide defence if a case had gone to trial.

“I think what the Attorney General is doing here is failing to identify that pattern in the State’s litigation strategy, a pattern which would be perfectly legitimate if the State were an ordinary corporate defendant, company or private citizen, but it’s not appropriate when we look at the State,” Ms Bacik said.

She said Minister for Health Stephen Donnelly should return to the cases taken and “look again in more detail at those cases to see where should the balance have been drawn.”

She pointed to redress schemes that had been established when there was no liability for the Government, such as for construction defects or physical abuse.

“That’s because the State has that moral or ethical duty to the citizens, to the public interest and to the common good. And that’s not really taken into account in this report.”

‘No empathy’

Bríd Smith, speaking to reporters on the Leinster House plinth later on Wednesday, said the report was “quite political” and indicates that “there’s no empathy really there for the past sins of the government”. She said the tone of it was “two fingers” to “another cohort of extremely vulnerable people”.

“It backs (the government) up politically, and not just legally, which is quite extraordinary and begs a lot of questions about how this state is structured and how it’s run, and this scandal I think has a long way to go yet, it’s not over.”

Ms Bacik said of the AG’s report: “He talks about people  availing of private service, the State has no obligation, of course not - the State has no obligation to recompense them if it was a choice, but the question is whether it was a choice or not,” she said.

“It missed the big picture.  He looked at the specific instances of the nursing home charges and the Disabled Persons Maintenance Allowance, but he didn’t look at an overall pattern of the government’s litigation management strategy.”

“There is an ethical obligation to look at the criteria for a redress scheme, in respect of those cases where the Taoiseach himself said there wasn’t a leg to stand on,” Ms Bacik said.