McDowell did not advise on charges' legality

Minister for Justice Michael McDowell never provided legal advice while he was attorney general on the legality of charges for long-stay patients in nursing homes, it emerged last night.

Former minister for health Micheál Martin and his special adviser, Deirdre Gillane, both gave evidence to an Oireachtas Committee in recent days that the Department of Health had informed them it had advice from the attorney general's office which ran contrary to suggestions raised by the Ombudsman in 2001 that patients were entitled to free long-term nursing home care.

However sources close to Mr McDowell last night told The Irish Times he had never advised on the legality of the charges levied on long-stay patients in nursing homes.

It is understood that Mr McDowell, as attorney general, may have advised on the issue of whether everyone was entitled to free nursing home care under the 1970 Health Act. Sources said the advice did not deal with the issue of whether health boards were entitled to levy charges for nursing home care.

In evidence on Wednesday to the committee, which is investigating the nursing home charge controversy, Ms Gillane said she had been advised by department officials in the wake of the claims by the ombudsman that his view was disputed by the office of the attorney general.

Ms Gillane stressed in her evidence that she had not seen the advice from the office of the Attorney General but she had been briefed on it by Department of Health officials.

Following the testimony of Ms Gillane, the committee wrote yesterday afternoon to Mr McDowell seeking him to appear before it and discuss the advice provided on the charges while he was attorney general.

However, it is understood that the current Attorney General, Rory Brady, has advised Mr McDowell that it would not be appropriate for him to appear before the committee.

Last night Labour Party health spokeswoman Liz McManus said the question now was that if Mr McDowell did not provide the legal advice that ran contrary to the concerns of the ombudsman, then who did?

Ms McManus said it was hugely important that the committee was given access to this legal advice.

The committee will next week hear from officials of the Department of Health about the controversial decision in 2001 by the Government to provide medical cards to everyone over 70 years of age regardless of means.

The committee has heard evidence that this legislation removed any grey area that may have existed over the legality of charging medical card patients for nursing home care.

Prior to this legislation, health boards had discretion over the award of medical cards and frequently took away cards from patients in long-term care.

However, following the 2001 legislation, all patients over 70 had a statutory entitlement to medical cards.