The Government strategy of fighting legal claims for nursing home care refunds continued following a “high-level strategy review” in 2017 involving then ministers Simon Harris and Helen McEntee, according to internal Department of Health records.
The review was referred to in previously undisclosed correspondence from the department to the Chief State Solicitor’s Office in May 2017, when discussing the handling of the State’s defence of a court action taken by a man named Joseph Conroy who was suing over long-stay care charges.
Mr Conroy’s case concerned his mother, who spent almost nine years in nursing home care prior to her death in 2004. He sought almost €120,000 in nursing home fees plus substantially more in interest.
Emails show the State’s legal team was advised to settle Mr Conroy’s case – seven years after he first brought the legal action – in order to avoid discovery of internal documents on the issue.
[ Analysis: Law, money and morality at issue in nursing home charges legal strategy ]
This was in line with the longstanding practice followed by successive governments to fight cases but to settle confidentially if there was a risk of discovery, in order to avoid others taking similar actions, thereby preventing a flood of cases and increasing the financial exposure to the State.
In an email sent on May 26th, 2017, a department official said the then Minister for Health Simon Harris and Minister of State for Older Persons Helen McEntee “confirmed” the strategy.
“There is no change in the department’s policy position – informed by legal advices to date from the Office of the Attorney General and confirmed at the recent high-level strategy review on long-stay litigation with the Attorney General and Ministers Harris and McEntee – that discovery should be avoided in all long-stay cases, including the Conroy case,” the department official said.
It was previously reported that ministers Harris and McEntee were briefed on the strategy but the newly disclosed record goes further saying they confirmed the policy following a review.
Asked whether he authorised the strategy when he was Minister for Health, Mr Harris told RTE’s Morning Ireland yesterday that the strategy was “in place for many years prior to my arrival as Minister for Health.” He confirmed he received a briefing note on “historic litigation”.
[ Nursing home charges: Government's defence of legal strategy rejected by former investigator ]
In response to queries, a spokeswoman for Mr Harris referred to his comments to the media yesterday, in which the minister said he was “comfortable” that successive governments acted in good faith in following the legal strategy, based on an Oireachtas vote in 2006 to establish a redress scheme for people wrongly charged for public nursing home care but not for private care.
The Government accepted liability for charges imposed on medical card holders for staying in public nursing homes, but never accepted blanket liability for those who couldn’t find a place in public homes having to pay for private care, despite the Ombudsman finding this to be unlawful.
Asked about the 2017 “review”, a spokesman for Ms McEntee said she was on maternity leave. He referred to the Taoiseach’s comments this week that the Attorney General, Rossa Fanning SC, was preparing a report on the issue for Cabinet next week and that it would be published thereafter.
A Government source disputed the characterisation of Mr Harris’s dealings on the litigation strategy when he was Minister for Health in 2017 as a “high-level strategy review”.
In the 2017 email, the official in the department’s services for older people unit managing long-stay charges advised the State’s lawyers on the Conroy case that “the reality of making discovery or running a hearing in one of these cases continues to be too risky to be seriously contemplated”.
“Whether we like it or not, settling the Conroy case – if necessary on terms we may find somewhat unpalatable – appears to be the only way forward,” the official wrote.
“Accordingly, the imperative now should in our view be to move as quickly as possible towards settling this difficult case on the best terms which can be realistically negotiated.”
He sanctioned the case to be settled for up to €64,000, the 60 per cent limit for maximum claims permitted by the department in settlement of these cases.