LAST UPDATE | 2 Feb 2023

MINISTER SIMON HARRIS has said he received the briefing note outlining the State’s long-running legal strategy to block refunds to people for controversial nursing home charges.

The past week has seen the revelation that successive governments used the strategy to limit payouts to some nursing home residents and that the plan was “pursued by successive governments”.

Harris, a former health minister from 2016 to 2020, said “blanket liability” for nursing home residents is not accepted for private nursing home residents which it is understood the charges applied to.

“When I was Minister for Health, and while I don’t have access to the documents myself, it is clear from a document in the media over the last number of days that myself and my colleague received a briefing note outlining what the notes seems to refer to as historic litigation,” Harris told RTÉ Radio One’s Morning Ireland programme.

“But it is also very clear, and I think this has become very apparent in recent days, that this was the legal and policy position of successive governments since at least 2006.”

He said “it seems to very much be a document that references the fact that it was historic litigation”.

“It doesn’t refer to now, it doesn’t refer to the nursing home situation during my time in the Department of Health but it is important that we absolutely satisfy ourselves, that the approach taken by the State over many years is the correct approach, that the legal basis is sound and solid and that the Government do the right thing.”

Harris added that it was important to note that while “people have talked about secret approaches and the likes”, the Oireachtas passed a law in 2016 in relation to redress for nursing home charges which “specifically included public (residents) and specifically excluded private on the basis of legal advice”.

This was the Health Repayment Scheme which was put in place by the Government of the day to repay eligible long-stay residents in public facilities.

That scheme came following then president Mary McAleese referring to the Supreme Court a Health Amendment Bill which sought to provide a retrospective legal basis for the charging of medical card holders over a period of almost thirty years.

In effect, the Bill also would have prevented people from suing in order to get their money back.

But the Supreme Court held that the Bill was unconstitutional and sought to make it legal to unlawfully charge medical card holders for public nursing home care.

Speaking earlier, Harris said it appeared the 2006 legislation had cemented the divide on public and private residents the “position of the department and of the State ever since”.

He said it is “clear” that the State approached private nursing home residents on “a case by case basis” depending on each person’s financial situation.

He added: “It is also very clear that this was a policy based on legal advice it seems to have been in place for successive governments and on the basis of legal advice by successive attorney generals.

“I think it’s right and proper that the Government and the Taoiseach has now asked the attorney general, to look at all of the legal advices”.

His comments come as the Dáil’s Public Accounts Committee discussed the matter with HSE chief executive Stephen Mulvany and the Department of Health officials. 

Fianna Fáil’s Cormac Devlin asked questions about the costs to date, with Mulvany stating that €453 million has been paid out to date under the scheme, adding that there were around 35,000 applicants with about 20,000 deemed eligible and received payments. Around €1.7 million has been set aside for payments to be made in 2022. 

The HSE chief executive said the legislation set out clear criteria as to who would be eligible reiterating that it was for medical card holders in public nursing homes or medical card holders in a publicly funded bed in a private nursing home, but did not extend to medical card holders in private nursing homes. 

Sinn Féin’s Matt Carthy raised the issue of those in Section 39 facilities and made claims that despite the appeals officer deeming that a number of applicants to the scheme were eligible, the HSE made an appeal against the scheme’s own appeals officer.

He said the HSE later withdrew its court appeal.

Carthy said there were hundreds of applicants who applied but upon of the advice that they were not eligible did not appeal that decision, despite the appeals officer for the scheme deeming that such cases would be eligible for pay outs. The Sinn Féin TD asked if money had been set aside for these applicants now and whether they will get compensation.