Nursing home charges: Government’s defence of legal strategy rejected by former investigator

The Government’s defence of a legal strategy for dealing with nursing home charges claims has been rejected by a contributor to an Office of the Ombudsman report on the right to nursing home care.

On Tuesday Taoiseach Leo Varadkar defended the use of a legal strategy aimed at containing the State’s potential liability on private nursing home charges describing it as “legitimate” in the Dáil.

Fintan Butler worked on the investigation into the right to nursing care in Ireland that let to the 2010 Ombudsman ‘Who Cares’ report.

[ Q&A: What you need to know about the controversy  ]

He told The Irish Times that what was at issue now was less about the State’s financial exposure, which he admitted was “probably greatly overstated”, but more about “the attitude which this litigation strategy reveals.”

Rossa Fanning profile: New AG a courtroom bruiser with straight-talking reputation

---

Q&A: Controversy around State’s legal strategy on refunds for nursing home charges

---

State paid out ‘single-digit millions’ on private nursing home claims

---

Nursing home charges issue: Public interest and public purse not the same thing

---

“For the State authorities to treat vulnerable people in this fashion is simply wrong. One has to wonder whether, for the ministers concerned, relying on the advice of lawyers, including the Attorney General, was a mistake,” he said.

“The overall impact of this debacle will be to further undermine the public’s faith in Government and people will want to know why the Oireachtas, rather than reacting now, was not able to identify and confront the issue years ago.”

He also told RTÉ radio’s Morning Ireland that he did not think most people would accept the State’s approach to the issue as a reasonable position saying it was denying people’s rights.

“First of all, it’s preventing the issue being clarified legally. It’s acting in a very hostile and aggressive manner towards people who are the victims of all of this. And essentially what’s happening is the strategy is treating this litigation as if it was simply another piece of litigation among equals.

“This is not litigation among equals. This is the strength of the State against its own citizens.”

[ Nursing home charges: Varadkar defends strategy aimed at containing State’s potential liability ]

Mr Butler pointed out that in the past the Ombudsman had recommended some form of redress and that there should be some form of action that could be taken by vulnerable groups in “class action type situations” where their rights could be established and protected without individual people having to put themselves at risk by taking court action.

“The present controversy is not about people who were in public nursing homes, it’s about people who by default had to go into a private nursing home.

“I heard somebody say, some politician say on the radio yesterday, ‘if you choose to go privately, you cannot expect the state to pick up the cost’.

“Now, that’s unfortunately a misrepresentation of what was happening.

“Mostly these were people who did not have a choice.

“There was a shortage of public nursing home places, people needed to go somewhere, so they ended up in private care.”

Mr Butler said it was surprising that the issue had not yet been dealt with given the Ombudsman’s detailed report in 2010.

It was now an historical issue, with nothing to do with the current level of entitlements.

“It’s about the situation of people, who, up to about 2006, 2007, who had to pay for private care because they had no choice to go elsewhere. And unlike people who went into public nursing homes who were refunded costs incurred back in the late 2000, these people have never been compensated.

“And the Department of Health maintains the position that you have no entitlement to compensation.

Mr Butler later said that some people entitled to public nursing home care had to go into private long-term care because no public beds were available.

[ Nursing home charges: Micheál Martin ‘not aware’ of two memos detailing State’s strategy on refunds ]

Mr Butler told RTÉ that it was “annoying” that there has been a strategy to prevent the whole matter being legally clarified.

“There has never been any opportunity to test that definitively, both in the court case and the strategy has been to prevent that ever being clarified.

He said: “The Ombudsman did recommend some kind of redress, but not the full compensation. It was at a very critical time for the state finances.”

Mr Butler added that he thought the level of exposure to redress had been “grossly exaggerated”.

“I don’t really know what the cost might be, but it doesn’t seem very likely that there will now be much money ever paid out to the previous people”, he said.

Speaking later on the same broadcast Minister for Children, Equality and Disability Roderic O’Gorman said the State’s obligation to “some of its most vulnerable citizens” should not be “obscured” by the need to save State resources.

He was responding to a Prime Time report on up to 12,000 vulnerable people denied disability allowance payments by the State.

It outlined a Government memo from 2009 putting the cost at €700 million and Mr O’Gorman was asked if he knew about it.

Mr O’Gorman said he did not see the programme but added: “What I would say I suppose is that when the State is subject to legal actions, when it adopts legal positions I think it’s really important that those positions are influenced by the obligation that the State has to some of its most vulnerable citizens.

“And I think in this example, from what we’ve heard, and indeed from the example on the nursing homes, I think perhaps that central obligation of the vulnerability of the people we’re dealing with here has maybe been obscured by, you know, saving state resources kind of approach and I think we can’t have that.”

The nursing homes issue has dominated political debate this week.

Speaking in the Dáil on Tuesday, Mr Varadkar described the legal plan as a “legitimate legal strategy by the Government”.

But he said that he does not recall being briefed or authorising the strategy, which has been strongly criticised by the Opposition in recent days.

The Government is coming under pressure to explain why it adopted such a strategy and to clarify which Ministers were privy to the plans, with Opposition TDs demanding to know which ministers sanctioned the approach. But no former or current ministers were willing to say they knew of or authorised the strategy.