Even Harney can't hide on charges fiasco

The scale of administrative and political incompetence revealed by this residential charges scandal is almost unbelievable, even in the context of a long tradition here of such incompetence. That for a period of 28 years, a legal and financial time bomb could be ticking away at the centre of one of our most eminent Departments of State and nothing done to defuse it during all that time, is staggering.

But it is more than that. During this 28 years officials in the Department of Health and in health boards around the country knew, at the very least, that there was a fragile legal basis for depriving old people, mentally ill people, mentally disabled people and others of their welfare entitlements and yet they went on doing that. In essence, stealing from the old and the mentally ill and disabled people, stealing from the most vulnerable in society, whether they appreciated that or not. Again and again the Department of Health was advised by its own legal advisers and outside lawyers that what they were doing was legally wrong. Repeatedly officials were advised that only by amending the law could charging these people for services they were entitled to without charge be rendered lawful. They balked again and again at making what would have been a simple legislative change. The illegality continued.

As we report elsewhere in this issue of Village, several Ministers for Health were culpable. These include Brendan Corish, Charles Haughey, Rory O'Hanlon, John O'Connell, Brendan Howlin and Micheál Martin.

Brendan Corish introduced regulations that were clearly illegal or at least legally dubious. Charles Haughey was fully appraised of legal opinion that advised of the necessity to introduce amending legislation, he balked at doing it for whatever reason. Rory O'Hanlon was handed amending legislation on a plate by his immediate predecessor, John Boland, but he too opted out and continued to do so even after he was made aware repeatedly of the illegality of what was being done.

John O'Connell also failed to implement recommendations of a report made available to him recommending legislative change. Brendan Howlin's own health strategy recognised the need for legislative change and he too did nothing. But, inevitably, most attention will focus on Micheál Martin. His claims not to have been aware of the ticking legal and financial time bomb just don't wash.

One does not have to rely on claims that he was briefed specifically on the issue to hold him grievously culpable. There are two independent reasons for doing so. One is his own health strategy which, as in the case of Brendan Howlin's strategy, acknowledged the problem. For what reason would he himself propose a new legal framework for implementing residential charges if he was unaware of any problem concerning them? There is also the availability to him of two reports that specifically raised the issue of the legality of the charges, one a report of the Ombudsman, the other a report of the Human Rights Commission.

By the standards of this government, Micheál Martin's ministerial career is secure. If Martin Cullen could survive the Monica Leech affair (especially the revelation that the State paid Ms Leech in excess of €80,000 for one-to-one discussions with him), surely Micheál Martin can survive the residential charges fiasco? Likewise if Noel Dempsey emerged unscathed from the mishandling of the Laffoy commission child abuse, then Micheál Martin is secure. But as a future Taoiseach...

There are a few other and more important issues aside from the personal political fall out for the politicians concerned. The first concerns the appropriateness of the charges even if rendered lawful by amending legislation. We provide free medical services for the poorer section of society. The service is poor in many respects and compares unfavourably with the service available to the rich. But now the consensus, apparently, is that part of such medical services, long term residential care, is no longer to be free. Nobody, but nobody protests.

Another issue is how the financial cost of this fiasco is to be handled. The Progressive Democrats will argue for cuts in public service, although because Mary Harney is in Health, presumably it will be spared. But, if the PDs get their way, less money for schools, less money for social welfare (at least less money than there would have been otherwise), less money for housing. Given the recent publicity our low tax regime obtained, is there not an obvious remedy, a modest increase in personal taxation – say a 50 per cent tax on everyone earning over €80,000?

Finally there is the question of Mary Harney's handling of the issue. She has insisted that she was not made fully aware of the background to this saga even when she was advised that a mistake had been made for 28 years on the legal basis for residential charges and that at the time of introducing the Bill intended to rectify the position (the Bill the Supreme Court found unconstitutional) she was not aware that there was an appreciate of this illegality within the Department for the 28 years. This is surprising.

In that same speech she referred to the legal opinion obtained in 2002 by the South Eastern Health Board. Presumably she read that opinion. Certainly had she done so she would have been aware of the view that the charges were illegal from the outset and that this should have been obvious.

This surely prompted her to enquire of her Department what was known, what the internal and external advices had been, what had been proposed over the years to rectify the situation and why nothing was done. If she did not make such enquires she seems as culpable as the Ministers, including her immediate predecessor, on which she seems so keen to dump. If she did enquire what was she told and why did she not tell the Dáil what she was told?

Questions also arise about the remedy she sought to enforce. Instead of seeking to reimburse the old and vulnerable people for the charges that had been illegally extracted from them over the years, she sought to make lawful retrospectively the theft of their property. It shows a skewed sense of priorities.

vincent browne