Martin advisers say they did not read legal brief

Special advisers to former minister for health Micheál Martin have said that they did not read briefing material which contained a summary of legal opinion suggesting that charges levied on patients in public nursing homes were illegal.

The summary of legal opinion, which had been obtained by the South Eastern Health Board, formed part of briefing papers drawn up for ministers, senior officials and advisers for a meeting in December 2003 with top health board chiefs at which the charges were on the agenda for discussion.

The two special advisers, Christy Mannion and Deirdre Gillane, told a hearing of the Oireachtas Committee on Health and Children yesterday that they had not read the briefing material.

The two said there had been a brief discussion on the nursing home charges issue at the meeting with the health board chief executives in the Gresham Hotel and that it had not been a major item.

The advisers said they agreed with the decision of the meeting to seek definitive legal advice on the charges issue from the Attorney General.

They confirmed that they had not briefed Mr Martin when he arrived at the meeting later.

They said the meeting decided that the issue would be looked at again when the Attorney General's advice was received and that alarm bells would have started ringing at that stage.

Ms Gillane and Mr Mannion accepted the criticisms of the official Travers Report that they could have probed the issue further.

Mr Mannion, a career civil servant of 30 years experience, told the committee that it was "exceptional" that he had not read the briefing material and he accepted with the benefit of hindsight that he should have done so.

He said that he had only read the briefing material on the South Eastern Health Board legal advice in recent months.

"I personally didn't read it before the meeting. It would have been e-mailed to me on the Monday evening but for whatever reason I didn't access it before I went to the meeting," he said.

Mr Mannion said the main item for discussion at the meeting with the health board chiefs had been the healthcare reform programme.

He said the South Eastern Health Board legal opinion was only opinion and "as with other opinion it was referred to the Attorney General".

Ms Gillane said that there had been evidence before the committee last week that the South Eastern Health Board had held a number of meetings on the legal opinion with Department of Health officials throughout 2003.

However, she said that this issue had never been raised with the special advisers or the minister during this period.

Ms Gillane said that there had been no Department of Health commentary or briefing paper attached to the summary legal opinion.

Ms Gillane said the summary legal opinion had not made any reference either to the issue of retrospection (the Government's potential exposure to having to repay money illegally deducted from nursing home patients) whether it be €2 billion, €1 billion or ½-a-billion.

Both special advisers denied they had ever seen a controversial missing file containing a letter from the former secretary general of the Department of Health, Michael Kelly seeking the advice of the Attorney General.

Mr Kelly said he believed that he sent the file to the minister's office. Mr Martin has denied ever seeing it.

Asked why the minister or his advisers had not acted on the report of former ombudsman Kevin Murphy which suggested that the nursing home charges were illegal, Ms Gillane said the attorney general at the time had provided advice to the contrary.