OMBUDSMAN EMILY O’Reilly has gone to war with the Health Service Executive (HSE), the Department of Health and the Government over the treatment of senior citizens and their entitlements to nursing home care under the 1970 Health Act. Following an investigation marked by “an unprecedented level of rancour and disagreement” she claims there is a disregard for the law within the department and the HSE and found the relationship between the Executive and parliament to be dysfunctional.
By placing her report before the Houses of the Oireachtas and addressing flaws in health administration and the system of government, Ms O’Reilly has broadened the scope of the document into a fundamental review of how political business is done in this State and the imbalance that exists between the powers of parliament and the Executive under the Constitution. Because of fiscal circumstances, no formal recommendation was made on nursing home cases.
Relations between the arms of government and the Ombudsman should always involve a degree of tension. On this occasion, however, attitudes have descended to the poisonous. From Cabinet level down, Ms O’Reilly was warned off conducting an investigation on the grounds that she was exceeding her powers. Her actions, it was intimated, could affect the State’s defence of several hundred legal actions.
Interpretation of the law, ministerial undertakings and social solidarity are central to this report. Ms O’Reilly insists the 1970 Health Act, under which citizens are entitled to nursing home care, still applies. The Department of Health disagrees and points to the provisions of the Nursing Home Support Scheme Act of 2009. The Ombudsman notes past illegal behaviour by health boards in charging for nursing home services. She records a continuing lack of transparency and accountability. Under the HSE’s interpretation of its legal responsibilities, she maintains, it could decide not to provide any nursing home services and abandon the area to private and voluntary providers.
As the population ages, the Government has been reducing its exposure to future costs by grant-aiding private nursing homes, closing public beds and introducing new charges. Minister for Health Mary Harney promised the 2009 Act would provide a “fair deal” for all senior citizens. But the department now maintains the provision of long-stay care will depend on medical and financial assessments and the availability of resources. That is privatisation by the back door.
Ms O’Reilly chose her battleground carefully. The Government’s record in defining and protecting the rights of senior citizens is certainly worthy of censure. And the public has a right to be informed. From there, she criticised the “politicisation” of the Department of Health and urged a rebalancing of the powers of parliament vis-a-vis the Executive. These are highly controversial matters and are likely to be resented. Perhaps, following recent rejection of her “Lost at Sea” report by Government, she feels there is little to lose.