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Annual Report of the Ombudsman 2004

Chapter 4 - Nursing Home Charges

Nursing Home Charges

The current controversy over nursing home charges is nothing new for my Office.

Over the years my predecessors made the Department of Health and Children and the health boards aware of their opinion in relation to the legal situation in this area viz., that long-stay care amounts to in-patient services and that medical card holders should not be charged for such services. In addition, my Office communicated this view, over the years, at meetings with officials of the health boards and of the Department. These issues were reported on in considerable detail in my Office’s annual reports of 1989 and 1992, and in the special report on nursing home subventions in 2001. On taking up office in 2003, I also received complaints about such charges, some of which were described in my first Annual Report. This situation has continued throughout 2004. Despite commitments in Quality and Fairness - A Health System For You, the new national health strategy which was published in 2001, the promised legislation to provide for clear statutory provisions on such entitlement did not materialise until the publication of the Health(Amendment)(No 2)Bill in December 2004.

In the aftermath of the decision of the Supreme Court to strike down this Bill as unconstitutional, I received a number of additional complaints in relation to the repayment of these charges, even though a formal scheme for their repayment has not been published to date. It is my belief that the number of such complaints will increase considerably with the publication of the repayment scheme and the subsequent decisions by the Health Services Executive (HSE) on individual applications. I have already entered into preliminary discussions with the HSE in relation to the manner in which such complaints are to be processed.

It is my intention to examine these complaints under the terms of the Ombudsman Act, 1980, as amended. In doing so, I will take into account the individual circumstances of the complaint, the individual and general administrative actions of the health boards and the Department in the matter and any submissions they may make in relation to any complaint, relevant legislation and any determination of relevant issues by the courts. In any particular case where I find that maladministration has adversely affected a complainant, I will make recommendations for redress to the relevant health agencies or to the Department, as appropriate. As in the past, my focus will be on the administrative actions of the Department and the health agencies.

The current controversy has focused solely on the question of patients in public institutions. It does not deal with the issue of those patients, both medical card holders and non medical card holders, who had been directed by the health boards towards private care, without in any way acknowledging their own responsibilities in the area. I remain of a similar view to my predecessors in relation to the legal situation in this regard viz., everybody resident in the State is eligible to be provided with in-patient services, where necessary, by the HSE. The services can be provided directly by the HSE in one of its own hospitals, in another publicly funded hospital, or by way of a contracting out arrangement between the HSE and a private institution.

It seems to me that those patients who were directed towards private nursing home care, and who subsequently made their own private arrangements, have an arguable case that they were acting out of practical compulsion or necessity in so doing. Equally, they might argue that they made their own arrangements in a mistaken belief (similar to patients in public nursing homes) as to their liability to pay for in-patient services. If those patients who were directed towards private nursing home care made their own arrangements out of practical compulsion or necessity or mistake, and consequently discharged an obligation which was, in fact, owed by the State, they may well have an arguable case for compensation equal to the amount of the State’s obligation. In practical terms, the State’s obligation could be regarded as (i) the actual amounts paid out in the private care, or (ii) the economic costs of providing the State service, or perhaps, more realistically, (iii) 80% of the rate of non-contributory old age pension applicable at the material time.

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