Nursing home charges: Ex-special adviser to Mary Harney defends legal strategy

‘As soon as there is litigation against the State, there has to be a legal strategy,’ says Oliver O’Connor

A former special adviser to ex-minister for health Mary Harney has defended a legal strategy adopted by successive governments on nursing home charges.

The legal strategy was aimed at containing the State’s potential liability on private nursing home charges and has been the focus of controversy in recent days. The Opposition has called for all documentation behind the strategy to be published from the inception of the plan to date.

Oliver O’Connor, a special adviser to Ms Harney between 2001 to 2010, said he did not recall the exact origin date of any such strategy, but he defended its use, as has Taoiseach Leo Varadkar.

“You can’t have a situation where there is an unlimited right to the resources of the State irrespective of the circumstances of the health services. That is not part of either policy or law. I would agree with the Taoiseach that it is a valid legal strategy which is driven fundamentally by the circumstances of each case,” Mr O’Connor, speaking on his own behalf, told The Irish Times.


“As soon as there is litigation against the State, there has to be a legal strategy. As soon as any case was lodged, there was going to be a legal approach to say, ‘what do we do with this?’ The motivation and the approach of attorney generals and those working in their office is absolutely not to say what can we do to deny people their rights, it was what does the law actually provide, and how to do we manage a situation where a claim was made, and whose understanding of the law should we go with.”

Attorney General Rossa Fanning is now preparing a report on the matter for Cabinet next Tuesday. The report will be published, and there will be Dáil statements on the issue.

No former or current Ministers have said yet that they knew of or authorised the strategy.

It was reported that in April 2017, an update was provided for then minister for health Simon Harris and Helen McEntee who was minister of state for mental health and older people.

A spokeswoman for Mr Harris said he “does not have access to the documents published this week. The Minister agrees with the position outlined by the Taoiseach in the Dáil”.

On RTÉ's Morning Ireland Mr Simon said that it was his understanding that the plan was in place “for many years” prior to his appointment as minister for health.

“Well, when I was minister for health, it is clear and whilst I don’t have access to the documents myself, it is clear from a document in the media over the last number of days that myself and my colleague received a briefing note outlining what was the notes seems to refer to as historic litigation,” he said.

“But it is also very clear, and I think this has become very apparent in recent days that this was the legal and policy position of successive governments since at least 2006. And I do think there’s one point towards making here governance, because people have talked about the secrecy approaches and the like. The Oireachtas in 2006 did pass a law in relation to redress for nursing home charges, and that is a law that specifically included and specifically included public and specifically excluded private on the basis of legal advice. And it seems to me that that has been the position of the department and of the State ever since.”

It comes as a briefing note prepared for a Leaders’ Question session in November 2010, seen by The Irish Times, shows the extent of the then Fianna Fáil government’s objection to an ombudsman report into illegal charges.

The report was compiled by former ombudsman Emily O’Reilly and was heavily critical of the Department of Health. The briefing note for Leaders’ Questions showed the government questioning the accuracy of her report. The note said it was the government’s position that meeting health obligations was subject to clinical guidance and resource availability. Ms O’Reilly’s report also looked into the issue of legal cases being taken by those who said there was no space in public nursing homes.

She said the department and HSE refused to provide her with any information on the legal actions in question. She said it was surprising that none of the cases had, at that stage in 2010, gone to hearing or judgment in the High Court. Speaking about the issue of settlements being offered, she said it was “intriguing that the State side would agree to settlements, involving compensation, if it believes that it has a valid full defence. In fact, it must be asked whether it is a breach of statutory duty for a statutory body to settle litigation, involving costs to the exchequer, in circumstances where it believes it has a valid full defence.”

She also said it seemed on occasion “that the response of State bodies to litigation may be based more on protecting the interests of the body itself than on serving the wider public interest”.

In the Dáil on Wednesday, Mr Varadkar again defended the State’s legal strategy and said: “We do not accept that medical card patients ever had an unqualified entitlement to free private nursing home care.”

It was also revealed by RTÉ that the State denied up to 12,000 people their disability payments, and that the government in 2011 was advised that if those disabled persons sued the State for the payments, their cases were likely to succeed.

Mr Varadkar has said the State “does not have a leg to stand on” over the decision not to pay the Disabled Persons’ Maintenance Allowance to vulnerable people in residential care, according to legal advice. He pledged to further examine the issue and revert to the Dáil.

Jennifer Bray

Jennifer Bray

Jennifer Bray is a Political Correspondent with The Irish Times