Report Summary: The Department of Health failed at the highest levels for almost 30 years to deal effectively with the illegal nursing home charges issue, the Travers report has found.
It makes it clear the department was "well aware" of legal concerns around charging medical card holders for care in public nursing homes as far back as 1976.
The report sets out in detail the numerous times when legal opinions provided to the department over the years cast doubt on the legality of the practice but nothing was done.
This ranged from the advice provided by its own legal team in 1977, the Eastern Health Board which got the advice of senior counsel Thomas McCann and Ronan Keane in April 1978 and forwarded it the department and legal advice obtained by the South Eastern Health Board in 2002 which was also forwarded to the department in late 2002 or early in 2003.
Mr Travers said the failure to take effective action at any time over the years was "somewhat surprising".
"The only reasonable conclusion, at this time, is one of overall systemic corporate responsibility and failure within the Department of Heath and Children at the highest levels over more than 28 years," he said.
His report deals in detail with a meeting held in December 2003 at which the legal advice to the South Eastern Health Board was considered. The meeting was attended, among others, by secretary general of the Department of Health Michael Kelly and by former health minister Michéal Martin and his two junior ministers, Ivor Callely and Tim O'Malley. It was decided at the meeting to seek the advice of the Attorney General on the issue.
Minutes of the meeting showed Mr Callely said he would speak with the Taoiseach and with Mr Martin about it. However, he didn't raise it with Mr Martin as Mr Martin arrived at the meeting himself later and his (Mr Martin's) advisers were present for the discussion.
Mr Callely told Mr Travers "he briefly mentioned the eligibility issue of long-stay care of the over-70s medical card holders in the course of a Dáil vote on an unrelated matter to An Taoiseach in December 2003".
There are conflicting accounts in the Travers report on whether Mr Martin was told there had been a discussion on the legality of nursing home charges at the December 2003 meeting. The meeting was at the Gresham Hotel, Dublin, and Mr Kelly said he left the meeting for about 10 minutes to meet Mr Martin at the hotel entrance when he arrived. He claims in the report that he told him there had been a discussion on the issue.
Mr Martin claims in his statement to Mr Travers that he was not told this.
Furthermore, the report states that when it was decided at the meeting to seek the advice of the Attorney General on the legality of the nursing home charges, a background file and draft letter to be sent to the Attorney General was prepared for Mr Kelly.
Mr Kelly recollected reading the submission and draft letter at the end of January or early February 2004 but the letter was never sent and the file has, the report states, "disappeared".
Mr Kelly told Mr Travers it was not his practice to hold folders or files in his office and he normally cleared items submitted to him within 24 to 48 hours.
"I did not retain the folder and my firm belief is that I referred it elsewhere in the department . . . given its potential consequences, my belief is that I would have brought it to the attention of the minister [ Mr Martin] in advance of issuing the letter," he said. But he could not recollect doing this.
But he said he had a "clear recollection of a subsequent discussion with the minister on what the best solution might be, if it proved necessary on the basis of legal advice to introduce amending legislation". He believed this discussion took place on March 10th, 2004.
Mr Kelly also stated that a folder containing the January 2004 submission "was observed by another official of the department (who would have recognised it and was aware of its significance) in the outer office of the minister's office at some point in early 2004".
He believed, had the folder been returned to him, it would have prompted "the appropriate response" on his part.
Mr Martin, however, said he never got the file and there was no discussion on this issue when he met Mr Kelly on March 10th.
"It is difficult to understand what purpose would have been served by referring such a file to my office as I was not being requested to sign the proposed letter or to contribute to the matter," Mr Martin told the Travers inquiry.
He added: "At no time did I shy away from sensitive issues because they might have cost implications or because they might reflect badly on governments . . . the fact is that this was not drawn to my attention either formally or informally at any time." Mr Travers observed that the failure of the department to seek the advice of the Attorney General following the December 2003 meeting was "highly deficient" and " inexplicable".
"That failure rests primarily with the management of the department. Absolutely no documentation was made available to me to demonstrate or to indicate that the minister had been fully and adequately briefed by the department on the serious nature of the issues arising, which the management of the department acknowledged carried significant potential legal, financial and political consequences.
"The special advisers to the minister might have been expected to be more active in examining and probing the underlying issues."
Mr Travers concluded there was no single reason for the almost 30-year delay by the department in seeking the Attorney General's advice.
"The explanation lies in a constellation of reasons. These included a strong desire to protect what was regarded as an important source of own income by the health boards, a failure to attach due weight to the legal concerns because of a somewhat unfounded belief that there was a defensible legal case for the practice, an undue concern about political sensitivity, the embedding of the practice over time appeared to have weakened any inclination by the Department of Health to question it."
Other reasons included weaknesses of the risk assessment procedures in the department and "ultimately, poor overall corporate judgment in the Department of Health and Children in relation to the operational, legal, financial and political significance of the issues surrounding the practice of charge for long-stay care in health board institutions".
In summary, the report said, the fundamental reason for the long delay "lies in long-term systemic corporate failure".
"That failure is principally a failure of public administration which, essentially, failed to identify, recognise and acknowledge the difference between actions and practices widely regarded as fair and reasonable and supportive of the development and protection of essential public health services and actions and practices that were legally valid.
"The failure of administration was compounded by the fact that the solution to the dichotomy . . . was readily amenable to remedy through the introduction of a simple legislative amendment."
The failure was further compounded by ignoring for many years a range of legal advice which was left to one side in the persistent belief that the practices at issue were at least defensible in a legal sense, the report stated.