The Government has today (Tuesday) noted the report from the Attorney General on matters relating to historic pre-2005 private nursing home charges, and the historic pre-2007 Disabled Persons Maintenance Allowance. The report is being laid before the Houses of the Oireachtas and published.
The Ministers for Health and for Social Protection, will consider the report and revert to Government within three months. It will also be discussed in the Dáil this week.
At its last meeting, the Government asked the Attorney General to review the files in the Attorney General’s Office regarding charges levied for the provision of private nursing home care to medical card holders before 2005, and the non-payment of the Disabled Persons Maintenance Allowance to persons in residential care prior to 2007.
The Attorney General was also asked to provide an account of the litigation management strategy adopted by the State.
The report analyses the nature of the State’s approach to civil litigation and provides an explanation of the litigation process.
The report also sets out an analysis of legal professional privilege with particular reference to the role of the Attorney General and the position of the Government, and the importance of privilege to the State’s ability to defend itself in legal proceedings. He notes that Cabinet confidentiality is enshrined in the Constitution and cannot be breached save by Court or Tribunal order.
The report deals with the statutory background to the nursing homes charges, the ‘Fair Deal’ scheme and litigation relating to the charging for in-patient services.
In this regard the Attorney General concludes that the legal advice furnished in respect of the litigation concerning charges levied for private nursing home care was sound, accurate and appropriate. He finds there is and was a bona fide legal defence to these cases.
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 as claims relating to the past.
While emphasising that the policy choices arising from the advice were ultimately matters for the Department of Health, the Attorney General states that it is clear the Department acted prudently in settling claims involving care in private nursing homes rather than risking an adverse outcome in a test case, which could have provoked many more historic cases, with a very substantial potential exposure for the taxpayer.
The report also considers the Disabled Persons Maintenance Allowance and 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 non-payment of the allowance.
He confirms that there was no positive legal duty to make retrospective payments.
The Attorney General concludes that there was good reason for the State to be concerned about its prospects of successfully defending one case that was brought, at least as insofar as the period between 1983 and 1996 was concerned.
The Minister for Health and the Minister for Social Protection will now consider the report and revert to the Government within three months.
Ends
Link to report: https://www.gov.ie/en/publication/22adc-attorney-generals-report-on-nursing-home-charges-and-disabled-persons-maintenance-allowance/