HSE's eligibility rules unclear, says O'Reilly

THE PUBLIC is paying the price for the failure of successive governments to introduce a statutory framework that would set out clear rules on eligibility for health services, Ombudsman and Information Commissioner Emily O’Reilly has warned.

She said the lack of legislation meant there was a lack of certainty over what the HSE’s obligations were or what people could expect from the State in terms of basic services. It also meant there was a lack of transparency in decision-making about the allocation of resources.

“For example, it would seem to be the case that, in practice, decisions on service cutbacks in areas such as home helps for the elderly or services for people with intellectual disabilities are being left to local management or to the voluntary agencies actually delivering services,” she said.

“A further price being paid is a certain fudging in our regard for the law. If, as seems to be the case, the State’s approach to the provision of mandatory, statutory services is not greatly different from the approach to providing non-statutory or discretionary services, then there is no reason why we should take the law that seriously,” Ms O’Reilly said.

As an example of this tendency, the ombudsman referred to the HSE’s national service plan for this year that sets out how its budget will be spent by specifying what health or personal social services will be delivered.

Ms O’Reilly, speaking at a Medico-Legal Society of Ireland function, said the current HSE national service plan contained a reduction of at least 555 in the number of public nursing home beds.

“What is remarkable about the plan from my perspective is that I have been unable to find in it any recognition of the fact that certain HSE services are required under statute to be provided.

“As I read the plan, it’s as if all of the service areas have the same status,” she said.

Ms O’Reilly said the plan had some references to the HSE having statutory obligations in the area of child protection, crisis pregnancy prevention and tobacco control.

There was no recognition, however, of the HSE’s statutory obligations in the mainstream areas of, for example, hospital services, GP services or dental services.

“While these services are dealt with in the plan, one would not know from it that these are services which it is required in law to provide.

“The plan’s bibliography references seven specific acts but omits to reference the Health Act 1970 which is the cornerstone of the health service. It’s as if the obligations under the Health Act 1970 are of no great consequence.”

This is the legislation which created different levels of eligibility for health services and placed a duty on the health boards – now the HSE – to provide those services.

In recent decades, Ms O’Reilly said, the development of new health services had taken place outside of the existing statutory framework.

She said Government’s plan for a radical redrawing of our public health service will apparently require several pieces of legislation and this, inevitably, will take several years.

“Pending that new legislation, the present very unsatisfactory situation is likely to continue,” Ms O’Reilly said.

“But as we move slowly towards this transformation of our public health service, I earnestly hope that the need to ration the ongoing availability of scarce health service resources will be balanced with a new focus on transparency and on fairness in the delivery of these services.”