The controversy over the State’s litigation strategy in relation to liability for historic nursing home charges for people with rights to public care sits at a challenging intersection for government. On one hand, the State has a moral duty of care to protect its most vulnerable citizens, while on the other it has an obligation to prudently manage the public finances against legal claims. A conundrum for government arises where the legal actions come from claimants who can legitimately argue that the State failed to provide statutory rights to people entitled to care.
For almost three decades, successive governments failed to amend legislation that allowed a practice – charging medical card holders for nursing home care – which was deemed to be unlawful. A Supreme Court ruling in 2005 cleared matters up somewhat, finding that imposing nursing home charges on these “vulnerable” people without lawful authority was a constitutional impermissible attack on their property rights.
The current controversy arises from the legal gap left by the fact that the court did not rule on charges paid up to 2004 by people who had to pay for private nursing home care because there were no available public beds. In the absence of a test case before the courts that might determine the State’s liability in these cases, governments stepped in and continued with a litigation strategy, dating back to before 2011, to fight any legal claims until there was a risk of discovery of documents. The fear was that this could expose the State to a deluge of legal actions.
In confidential records revealed by Department of Health whistleblower Shane Corr, there is discussion among State officials of finding “a strong case” which could be a test case that might put the matter to bed . There are also references to the risks associated with discovery and running a case, with concerns about the exposure to the State running into billions of euro. Protecting the State’s finances trumped any consideration as to whether people had a justifiable claim.
The State pursuing an aggressive legal strategy to limit compensation claims is nothing new. But this controversy should spark a constructive and open debate about a government’s moral, legal and financial responsibilities, particularly to the rights of the most vulnerable in society.
Solutions have been proposed. In her 2010 report on this issue, Ombudsman Emily O’Reilly suggested the creation of an independent group to advise Government on how best to handle legal actions or threatened leal actions involving large numbers of people, arising from a contended failure of the State to meet its statutory obligations.
Few people, on both sides, wish to go down the adversarial legal path to court and this route could provide much-needed advice that could result in better, clearer outcomes for all parties.