THE IRISH health service has, for decades, been operating half in and half out of a legislative framework, Ombudsman Emily O’Reilly has said.
In a speech on health policy at the Mater hospital in Dublin yesterday she said one consequence of this was the legal requirements of the Health Act 1970 were taken less seriously than would otherwise be the case.
“People do not know where they stand in terms of their entitlements and in terms of the HSE’s obligations – such as they are – to provide services. The HSE and the Department of Health frequently take the view that legislation is non-specific and that the HSE has considerable flexibility as regards what it should be doing.”
Ms O’Reilly said she did not accept this argument.
She maintained policy did not mean a great deal if the mechanisms for delivering on it were inadequate and outdated.
The Ombudsman said health service complaints received in her office to a very large degree reflected an uncertainty about entitlements. “The big question usually is: what am I entitled to? People are unclear as to the obligations on the HSE to provide specific services.”
If ordinary people were confused and uncertain as to their entitlements, so too, in her view, were many health service administrators. “It sometimes strikes me that for health service staff working directly with the public – whether as clinicians, therapists or administrators, or whether in institutional or community services – what constitutes official health policy and what health legislation provides is not all that relevant.”
She cited the example of section 67 of the Health Act 1970 which says health boards – now the HSE – shall make dental, ophthalmic and aural treatment available free of charge to those with full medical card eligibility.
Ms O’Reilly said it was safe to say neither the health boards nor the HSE had ever come close to meeting their obligations under this provision. “The point I am most anxious to make here is that it is wrong and undermining of our society in an insidious way to have policies and laws which in practice are disregarded.”
The Ombudsman said that nowhere was this lack of clarity more evident than in the area of long-term care for older people.
She said the main point behind many complaints in this area to her office going back to 1985 was that the former health boards and subsequently the HSE were failing to provide long-stay nursing home care for older people who were being forced to take up private care they could not afford.
In the course of an investigation which led to the publication of a report into nursing home care last November, the Department of Health had written to her to set out its understanding of the legal position regarding the State’s obligation towards people needing long-term care.
“The department’s view is that the State has no obligation whatsoever to provide long-term care for older people whether on the basis of charging or otherwise. This, according to the department, is the position following the enactment of the Nursing Home Support Scheme Act in 2009 [which led to the Fair Deal scheme].
“As the department put it, “the policy intention of the Nursing Home Support Scheme Act 2009 is that each individual is liable to meet the full cost of their long-term residential care, although they can apply to the HSE for financial support in respect of this cost.”