Putting the boot into the elderly

 

Mary Harney may well wonder what other time-bombs lie in wait for her as Minister for Health, writes Mary Raftery.

But if she can get away with putting the boot into old-age pensioners, she'll have one up on poor Ernest Blythe, famously crucified for doing just that over 50 years ago.

The sheer brazenness of her actions is breath-taking. We overcharged you, but we didn't mean to, so we're not going to pay you back. What we did was unlawful, but we'll rush through legislation saying that it wasn't, and then we'll carry on doing it.

Imagine what Ms Harney, that doyenne of probity in high places, would have said if AIB or Permanent TSB had refused to refund the customers they overcharged, or indeed had said that all they could afford was a one-off payment of €2,000 - take it or leave it!

That, however, is precisely what she has said to the thousands of pensioners who have been unlawfully overcharged by health boards for their nursing home care. When it comes to Government, it has now been officially confirmed that lower standards apply.

For medical card-holders, in-patient care is supposed to be free of charge. A 1976 Supreme Court ruling (in the matter of Maud McInerney) included nursing homes within the definition of in-patient care.

Nonetheless, the Government continued blithely to charge medical card-holders in nursing homes through a variety of means, including the removal of their pensions.

The Government now claims that it became aware only recently that this was illegal. However, a look at the annual reports of the Ombudsman shows that the Government was notified at least 16 years ago of the unlawful nature of removing pensions from medical card-holders in full-time care.

Since 1988, the Ombudsman has repeatedly ruled that complainants in these circumstances be refunded.

This came to a head in the late 1990s, with the special report to the Oireachtas from the Ombudsman on the related issue of nursing home subventions.

The Government at that time was forced to refund nursing home patients after it was found that it had not informed people of their statutory right to care, had misled them into believing that this care had to be paid for, had unlawfully included the incomes of people's children as part of a means test to determine the level of fee payable, and had taken 100 per cent of people's pensions from them, leaving them without even the money to buy a newspaper.

All of this had been going on for years, with the full knowledge of the Department of Health that it was illegal. At one stage, the Attorney General's advice was that there was no legal obligation to refund anyone. Sound familiar?

The mechanism used by the State to extort the old-age pension from nursing home patients is worthy of Machiavelli himself. On admission to a nursing home, the health boards declare that you have no further need of your medical card, as you are now being fully looked after. So they take it from you. And since you no longer have a medical card, you have lost your entitlement to free care and consequently now have to pay.

This sleazy Catch-22 was removed by the 2001 Health Act, which for the first time conferred a medical card as of right on a portion of the population - those over 70.

Incredible as it seems, everyone else has always received a medical card at the discretion of the health boards. Hence their power to remove it at will.

The fact that by law they could no longer do so after 2001 for the over-70s left the Department of Health in a quandary. Its decision, based as we're told on an "assumption" of the status quo before 2001, was to keep on removing people's pensions.

Given the Department's public humiliation at the hands of the Ombudsman over such a similar overcharging issue, the ticking of this particular time-bomb must have been deafening. And yet, we are expected to believe that no one in Government heard it.

The current Bill being rushed through the Dáil on the last day of term is likely to have a permanent and disastrous effect on all medical card-holders, not just the over-70s. By redefining in-patient care to exclude that provided in long-stay institutions, it fundamentally alters the hitherto accepted duty of the State to care for those in need.

Such a radical change demands a full public debate. Instead, it will arrive masquerading as an attempt to block a loophole.

Mary Harney would be better advised to take her own advice, given earlier this year.

Referring to who should pay for care of the elderly, she wrote that "we have to be very cautious about law in this sensitive area".

Looking back further, the true enormity of her betrayal of the country's most vulnerable citizens becomes clear.

In 1996 she announced that "we want the elderly to be able to live out their retirement in dignity and security without having to worry about the State confiscating their savings".

mraftery@irish-times.ie