Despite explicit legislation, reinforced by court rulings, stating that medical card holders cannot be charged for stays in public hospitals or nursing homes, a practice developed over several decades of deducting monies illegally from pensions to pay towards the cost of
nursing home care. When, in 2001, legislation effectively turned everybody over 70 into medical card holders, alarm bells were set off in health boards where substantial sums — €2.5m a week, says Harney — were being taken from pensioners’ incomes.
The South Eastern Health Board stopped the practice and warned at least one junior minister, and probably his boss Micheal Martin, of its view that the deductions were wrong. The board and the government agreed in March 2003 to seek a legal opinion but that appears not to have been followed through. It was only in recent months that Rory Brady, the attorney-general, advised Harney, the new health minister, of the government’s perilous position.
Harney must have realised that she was in a deep legal hole, but she continued to dig, introducing a new law which sought retrospectively to legalise the practice that the Supreme Court found was illegal last week. How did she make the political calculation that it was worth the risk of offering pensioners a lump sum of €2,000 each, hoping that they would go away in respect of the monies they had paid over the years towards their care? She must surely have anticipated a referral of the new law by President Mary McAleese to the Supreme Court. Did she believe that the court would buy into the argument that to rule out her new law would open up an “appalling fiscal vista” for Brian Cowen? Legal experts say that 20 years ago a differently constituted Supreme Court might have seen Harney’s law home, on the basis that rejection would put undue pressure on an already stretched exchequer. But after several years of budget surpluses, those days are no more. Now lawyers put the chances of a minister successfully pleading the beal bocht at no more than 10%, and that is on a good day. Yet Harney’s advisers thought it was worth the political risk, and even now the health minister argues that retrospection backdated to 1976 would place an unbearable strain on the exchequer.
Numerous legal uncertainties remain. Will the statute of limitations apply to cases prior to 1999? The answer is by no means certain. The Supreme Court held that the law was an attack on the constitutional right to property, inflicted on people so vulnerable in many cases that they did not know what was being done to them, nor have any means of fighting it. The terms of its ruling are so strong that anything is legally possible. Either way, the initial decision will be political: and many of the 200,000 residents of nursing homes between 1976 and 1999 are now dead, even if their descendants have vague hopes of what the Supreme Court says is not a windfall.
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Will interest be paid on the monies owed? Will beneficiaries of repayments who are within the tax net, relatives and so on, be taxed on the proceeds? Will lawyers, who hold that their persistence provoked the climbdown, reinvolve themselves, in many cases with knock-on legal costs? Harney may look upon the maharajahs that staff her department’s upper reaches with a colder eye in future. They have waltzed her into early political embarrassment and an expensive outing in the Four Courts.
But she may reflect that this is simply part of a wider pattern. Who bought those e-voting machines whose software is held not to be secure enough and which could, with little difficulty, be overwritten, according to the Commission on Electronic Voting? Who vetted the contract for tolling the M50 that means motorists pay €1 billion in tolls on a €48m highway? What possessed the superannuated leaders of the education department of bygone days to bury evidence of systematic abuse of children in care? Redressing the wrongs of industrial schools will cost an estimated €800m, perhaps even more now that it has been decided that every allegedly wronged person will testify. How much will the final tab be for the poisoned blood scandal? The total cost of the hepatitis C affair is currently heading north of €600m. And then there are the army deafness cases, where the costs come in at about €300m.
It is easy to be wise after the event. But there does appear to have been an ethos of “accepted practice” in parts of the public sector over many years, whereby civil servants tolerated behaviour that would stand no chance of getting past a modern generation of trial lawyers. It was acceptable that soldiers training in the Glen of Imaal should have no ear protectors. It was acceptable that blood was stored in corridors at the blood bank. It was acceptable that religious orders were given carte blanche in managing institutions that were essentially paid for by the taxpayer.
The problems are not yet at an end. Do prisoners still have to slop out of toiletless cells? Are workers still exposed to asbestos? A case won by the Amicus union in a British court last week could have implications here, even though the Supreme Court has thrown out claims by workers who had been exposed to asbestos but who had so far shown no medical symptoms.
It is only a short while since the department of education signed off on a deal with 18 religious congregations to pick up the tab for institutional abuse. The liability of the congregations was capped at €128m in cash and in kind, and already there are arguments about the value of property provided towards the cost of the deal. Signed in the dying days of a previous administration, the deal covers only a fraction of the total cost.
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Public opinion is fickle on issues of mass compensation, but it is obvious that taking hard-nosed legal advice on certain cases can be politically suicidal. The lawyers who wanted to resist the claims of the hepatitis victim Bridget McCole may have had the best interests of the exchequer at heart, but they were on a political loser from day one. Similarly, there is no percentage in fighting claims by victims of institutional abuse, or indeed claims from elderly people who, according to the current media wisdom, were mugged by an avaricious state.
The irony is that the same media that is clamouring for an end to tax breaks “abused” by the wealthy, such as the shelter for stallions, will now happily fight the corner of a loaded pensioner living in a private nursing home who claims that he was refused public nursing home care.
Harney took a lot of political flak from Fine Gael last week on her botched nursing home law. She is beginning to understand how the former Fine Gael leader Michael Noonan felt when he was on the receiving end of similar fire.