The Department of Health whistleblower who disclosed the State’s legal strategy to limit refunds on illegal nursing home charges raised the issue directly with Taoiseach Leo Varadkar in 2019.
Department official Shane Corr emailed Mr Varadkar on December 22nd, 2019, copying the Dáil Public Accounts Committee, expressing concern that billions of euro in repayments of long-stay nursing home charges were being put “out of reach” of “largely old and helpless people”.
The actions were being carried out “in secrecy” and “put well beyond the normal mechanisms established to scrutinise the Government”, he said in his email, the receipt of which was acknowledged by the Taoiseach’s department.
“As the matter related to correspondence to the PAC, it was acknowledged and forwarded to the Department of Public Expenditure and Reform in accordance with standard practice,” a spokesman for Mr Varadkar said on Monday evening. “It was not brought to the attention of the Taoiseach.”
A protected disclosure made by Mr Corr, published in a Sunday newspaper, revealed a Department of Health 2011 memo purporting to set out a legal strategy to thwart refunds of potentially billions of euro to people wrongly charged for nursing home care over 30 years.
[ Opposition wants State records on illegal nursing home charges published ]
In a statement last night, a Government spokesman said Minister for Health Stephen Donnelly had sought advice from the Attorney General and a detailed briefing from the department on the matter. The spokesman said the legal strategy predated 2011 and had been pursued by successive governments. He also said the strategy had been “misrepresented” in reports.
“The strategy was to defend the cases relating to private nursing homes on several grounds, in particular that medical card holders did not have an unqualified entitlement to free private nursing home care,” he said.
The spokesman said that a limited number of individual cases were settled where there were “complicating factors.”
“No case ever proceeded to a hearing. In the case of public nursing homes, a scheme was put in place and €480 million was paid to former residents or their families,” he said.
In his December 2019 email to Mr Varadkar – seen by The Irish Times – Mr Corr said the State estimated the repayment liabilities at €5 billion-€7 billion. He forwarded the Taoiseach an email he sent to the PAC saying the scale of the liabilities “should ring alarm bells”.
Mr Varadkar said in a radio interview on Monday that he was never party to the strategy and had not received the memo in relation to the handling over the legal claims around the refunds.
Speaking on Newstalk’s Pat Kenny Show, the Taoiseach, who was minister for health in 2014-2016, said the memo appeared to have been circulated to four members of the Oireachtas, none of whom was a member of the current Government. “I haven’t seen it and didn’t at the time,” he said.
Mr Varadkar said the “true picture will be more complex and different from how it was presented” in the Irish Mail on Sunday, which revealed details of the memo.
He said the contingent liabilities outlined in the memo never arose and were “not in any way still valid”. He said that the actual sum paid out was €450 million.
The eight Independent Regional Group TDs have called for a Dáil debate on the issue. Sinn Féin and Labour want all records to be published to establish the facts around the strategy.
Asked if records would be released, Minister for Housing Darragh O’Brien said on Monday it would be discussed in Government and “any appropriate steps that need to be taken will be taken”.
The strategy adopted in 2011 followed an investigation by the then Ombudsman Emily O’Reilly, who criticised the State’s decades-long failure to accept the right of older people to State-funded care and its decision to fight lawsuits taken to recover illegal nursing home charges.
According to the 2011 memo, the strategy was to settle cases for considerably less than the damages sought and to keep the settlements confidential to avoid further cases being taken.
“Confidentiality has been a central element of the legal strategy. The fear is that if details of the cases, the legal strategy and settlements were to gain a high public profile, it would spark a large number of claims,” says the memo, labelled “strictly confidential – limited circulation.”
Facing more than 300 legal actions in 2011, the department estimated a potential exposure of billions of euro in refunds to public patients wrongly charged dating back to 1976 and from cases where public patients had to pay for private nursing home care due to a lack of public beds.
A subsequent Department of Health memo, dating from March 2012, said that a number of “problematic documents for the department” may have to be released in the discovery process in legal actions “in the absence of a decision to settle the cases”.
The memo said the litigation “created, and still presents, a significant financial exposure for the State”.