Illegal health system

Mary Harney's claims to have acted decisively on residential charges don't stand up. She also dithered on an even more significant looming legal crisis for the health service. By Vincent Browne

In the Dáil on 10 March last, Mary Harney claimed credit for her prompt handling of the residential charges issue once it had come to her attention. She said: "I stand over my handling of this issue since October last." She said she immediately asked for legal advice and, when she got it, she acted on it.

However there is reason to believe that Mary Harney failed to ask obvious questions when the issue first came to her attention and, crucially, she failed to act immediately when she became aware that even more serious doubts had arisen about the legality of the operation of the health system aside from the residential charges issue.

Specifically, Mary Harney:

• failed to inspect the Department file on the residential charges issue when the matter first arose;

• failed to read the legal opinion that had given rise to substantive concerns in her Department and among the Health Boards in late 2003 and early 2004, once she had been informed of the existence of the opinion;

• failed to ask, at the outset, obvious questions related to the competence and sense of urgency with which her Department handled the residential charges issues over the years and instead waited until several months later when a report (the Travers report) on the issues was completed;

• failed to respond for at least two months and probably longer to even more serious doubts raised about the operation of the health system generally.

On 15 March, Village submitted queries to the Department of Health and Children concerning Mary Harney's handling of this issue. The response became available to us three weeks later. Most of the questions were avoided or were answered incompletely.

The background to the matter is as follows.

In 1976, the Department of Health and Children issued a circular advising chief executive officers (CEOs) of Health Boards to remove medical cards from patients in long-term care institutions run by the State. Immediately, within the Department of Health, legal doubts were raised about the legality of this.

In 1978, a legal challenge to the removal by the Eastern Health Board of the medical cards was issued. Two senior barristers, Thomas McCann SC and Ronan Keane SC (later chief justice), advised that what was being done could be made lawful only through legislation. This advice was made available to the Department. Legislative change was proposed in 1979 but was not pursued.

Legislation was actually drafted some eight years later, in 1987, but when a change of government occurred, the proposal was dropped.

When Brendan Howlin of the Labour Party was Minister for Health in 1994, a health strategy promoted by him undertook to legislate on residential charges. This was not done. In 2003, the Government's health strategy promised "a clear framework for financing long-stay care for older people". Nothing was done.

In July 2001, everyone aged 70 and over, without regard to means, was given a statutory entitlement to a medical card.

In 2002, legal actions were taken against the South Eastern Health Board (SEHB) on the residential charges issue. Two barristers, Donal O'Donnell SC and Douglas Clarke BL were asked for their legal opinion. They wrote a devastating critique, not just of the illegality of the residential charges but of the legal basis for the operation of the health services generally. This again was brought to the attention of the Department of Health. It was considered at a meeting of Health Board executives and the Department in December 2003. It was agreed to seek the advice of the Attorney General. This was not done. However this SEHB legal opinion is crucial in determining how Mary Harney responded to the information on residential charges and other matters, once she was initially alerted to the problem. She was so alerted by questions asked of her in the Dáil, last October, by Enda Kenny and John Perry of Fine Gael.

It is evident she was made aware at an early stage of the existence of the SEHB legal opinion and made aware of the critical issues it raised.

The legal opinion had stated in relation to the residential charges that the health boards were not entitled to deprive persons aged over 70 of their medical cards or otherwise to levy charges on them for institutional care. They said: "We are not aware of any statutory justification for the practice of removing medical cards from patients in receipt of long-term care."

The legal opinion went on to observe: "It is a remarkable feature of the health services in Ireland that such vast sums of money are expended on a system, the statutory basis for which is so confused and haphazard and where practices seem so dislocated from statutory theory." It spoke of the "ad hoc" allocation of budgetary resources. It said: "This raises the question whether the entire system... which can give rise to such arbitrary distinctions with enormous impact on individuals and families can be valid." It continued, "the system is so lacking in coherence and consistency that it is likely that individual determinations will always be open to successful (legal) challenge. If the result is that arbitrary and ad hoc decisions are made between essentially similar members of the public then prima facie that would be, at a minimum, a breach of the guarantee of equality contained in Article 40.1 of the Constitution."

In other words, the legal opinion was saying there is no legal basis for the residential charges and, in addition to that, there is grave doubt about the legal basis on which the health system as a whole is operating.

Anybody who read the opinion and who appreciated its significance should have appreciated there was an immediate and urgent crisis, which required immediate and urgent attention. Clearly the issues raised needed to be referred to the Attorney General, not just the residential charges issue but the more general and far more serious issue of the legal basis for the operation of the health system as a whole.

The legal opinion would also have raised, in the mind of anybody who read it, questions about the Department of Health and Children: what had they done about this when they first became aware of this opinion, and what urgent action did they take at the time about the two issues.

We posed a number of questions to Mary Harney, via the press office of the Department of Health and Children. Our first question was a simple one: when did she see a copy of this legal opinion? The reply stated: "As is clear from the documents she released on 16 December, reference was made to this (SEHB) advice in the Secretary General's written report. She subsequently saw and read the full advice. However the legal advice that guided the Tánaiste and the government was that of the Attorney General, not the SEHB advice."

From the diversionary reference to the Attorney General's advice (obviously, Mary Harney and the government would treat the Attorney General's advice as the authoritative one) and the avoidance of a specific answer to the question, one can reasonably conclude: she was informed of the SEHB legal opinion at an early stage but she did not ask to see it until later, even though the relevant Minister on hearing of the opinion should have been alarmed about the issues it raised and have wanted to personally examine the opinion.

We asked: "Did she ask what follow through there had been on this (SEHB) opinion, given the seriousness of the issues it raised?" The answer we got was: "As stated above, the legal advice guiding the Tánaiste was that of the Attorney General. Her actions were taken on foot of that advice. She did ask about follow up to the SEHB advice. She commissioned the Travers report (the report by John Travers published on the residential charges issue in March) precisely to ascertain what follow through there had been."

From this we can conclude she probably did not see the SEHB legal opinion until quite late in the day and only then sought to ask the obvious questions.

We asked: "Did she ask to see the file on the issue going back to 1976?" The response: "There are many files. The Travers report which she requested is a report to the Tánaiste on the contents of the files."

From this answer we reasonably can conclude: she did not ask to see the files on the residential charges issue. She simply passed the whole issue over to Mr Travers.

We asked: "Did she enquire what advice did the Department's legal adviser offer on the issue over the years?" The answer we got was: "Yes, the Travers report covers this too." The Travers report does not cover the issue of whether Mary Harney enquired what advice the Department's legal adviser offered on the issue over the years.

We enquired about her response to the general observations made in the legal opinion about the legal basis for the health system generally and the reply was: "In December she requested an audit of the legal basis for all charges under her Department. Further legal analysis is now being undertaken."

From this it is clear that she did not act with the urgency and alarm that the general observations would surely require. Nothing was done on the more general issue for at least two months and, in the light of the final sentence of the response to our question ("Further legal analysis is now being undertaken") it seems that the requisite response was not taken till some months later. p