Legal advice on nursing home charges was ‘sound, accurate and appropriate’, Attorney General concludes

The legal advice on claims against the State arising from private nursing home charges levied on people with medical cards was “sound, accurate and appropriate”, the Attorney General has concluded.

Attorney General Rossa Fanning was asked by the Government to review files in his office on the issues of nursing home charges and the separate controversy over the non-payment of disability allowance.

He has defended the legal advice given to the State in relation to claims arising from nursing home charges.

A Government spokesman said that Mr Fanning concluded “the legal advice furnished in respect of the litigation concerning charges levied for private nursing home care was sound, accurate and appropriate.

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“He finds there is and was a bone fide legal defence to these cases.”

The spokesman added: “The Attorney General points out that the public interest is the only interest that the State can have regard to and that this must include consideration of the interests of taxpayers and those dependent on public services today as well those relating to the past.”

He also said: “While emphasising that the policy choices arising from the advice were ultimately matters for the Department of Health the Attorney General states that it was clear the Department acted prudently in the settling of claims involving care in private nursing homes rather than risking an adverse outcome from a test case which could have provoked many more historic cases with a very substantial potential exposure to the taxpayer.”

Mr Fanning also examined his office’s files on the non-payment of the disabled persons maintenance allowance to people in residential care prior to 2007.

The spokesman said Mr Fanning’s report considers “the historical question of the legal authority of the minister to withhold payment of the allowance to persons in full time residential care funded or part-funded by the state and litigation relating to the non-payment of the allowance.”

[ Fintan O’Toole: State has a habit of paying up to the strong and harassing the weak ]

He said Mr Fanning “confirms that there was no positive legal duty to make retrospective payments.”

However, the spokesman also said: “The AG concludes there was good reason for the State to be concerned about its prospects of successfully defending the one case that was brought at least insofar as the period between 1983 and 1996 was concerned.”

He said that the Cabinet agreed to note and publish Mr Fanning’s report and to ask Minister for Health Stephen Donnelly and Minister for Social Protection Heather Humphreys to consider the report and to revert to Government on the matter within three months.

In the 30-page report, Mr Fanning issued a strong defence to both the principle of contesting the claims against it and the specific advice of his predecessors.

“There is and was nothing inappropriate in the advice provided by the Office and my predecessors to previous Governments on these matters,” Mr Fanning wrote in his report to Government which has been published this evening.

“The advice provided by the Office and my predecessors at all times recommended a course of action in respect of each individual case that was lawful and consistent with the State’s rights and obligations as a litigant and its role in safeguarding public monies.

“The advice at all times accurately reflected the legal position as it then stood and had due regard for the merits of the State’s defence in each individual case and the legal risks involved in litigation, which is an inherently uncertain process.”

‘Governments must make hard choices all the time, with finite resources’

Mr Fanning said that it was never the case that the State intended to pay for private residential care for citizens and the State had “multiple grounds of viable legal defence” in the cases taken against it.

“I am satisfied that the legal advice furnished by the Office in respect of the litigation concerning charges levied for private nursing home care was sound, accurate and appropriate,” he says.

However, the Attorney does not relate in detail the nature of the legal advice. He said to do so would compromise the State’s defence in future cases.

“Whilst it is a decision for Government, my own strong view is that legal professional privilege ought not to be waived in this instance, beyond what is expressly or impliedly waived by the very fact of the publication of this Report. I believe that the proper operation of Government, for generations to come, would be gravely compromised by any other outcome,” he says.

Department of Health whistleblower Shane Corr, whose public disclosures revealed details of the State’s legal strategy around defending claims for refunds from medical card holders for private nursing home care, queried the Attorney General’s conclusions.

“If the advice was sound, accurate and appropriate, then why was it the subject of a secret memo?” he said, referring to a 2011 Government memo labelled “secret” and “strictly confidential” setting out the State’s legal containment strategy on claims.

“More importantly, why did the State settle cases?” he added.

Mr Corr questioned the dependence on legal advice, saying that it raised a question around whether the State should do something just because it could legally do it “without having any recourse to the moral part of the equation.”

He said that while Governments took legal advice advice from the Attorney General, there was no advocate on the other side for people potentially affected to represent the interest of the most vulnerable. Legal claims would inevitably be taken by people with the resources, energy and capacity to take cases where the more vulnerable could not take legal actions, he said.

The report finds that while there were initial fears of a very large number of cases, which could potentially cost €7 billion, many did not materialise. He says that in many cases, the plaintiffs either had no locus standi to pursue the case or the case was statute barred.

On the second issue that Mr Fanning’s report examines, the non-payment of disabled person’s allowance to people who were in residential care, the Attorney finds that the State was exposed for a period of time when the practice had no basis in law.

“In very general terms, it was considered that there was a frailty for the period from 1983 to 1996, on the basis that the Health Boards lacked power to elect not to pay DPMA under section 69 of the 1970, Act, and that Regulations made under the 1970 Act authorising non-payment were ultra vires,” he says. “It ought to be emphasised that the only temporal period that the State’s legal advice was particularly gloomy about was the period between 1983 and 1996, a period which at this point, ended some 27 years ago.”

However, he says, it does not follow that the State was legally obliged to pay compensation.

In general, the report offers a strong defence of the Government’s right to decide on the supports it wishes to pay citizens in accordance with law.

[ Law, money and morality at issue in nursing home charges legal strategy ]

“It is sometimes tempting to resort to generic stereotypes about the State being in some way cruel or unfair to its citizens where they are deprived of a benefit and bring legal proceedings challenging this deprivation. But the irresistible logic of such a perspective is that the State has unlimited resources, must concede every Court case that is brought against it, and must fund every claim for compensation or redress that is demanded of it,” the report says.

“Governments must make hard choices all the time, with finite resources, and the requirement to defend litigation that seeks to challenge those choices ineluctably follows.

“It is fundamentally incorrect to suggest that Governments are unwilling to provide benefits to their citizens and only do so when they are legally compelled to. On the contrary, the source of any legal obligation upon Governments to provide benefits to their citizens is the very laws that they themselves enact.”