January 2001 - Report on Nursing Home Subventions

This report is critical of the Department of Health and Children and of the health boards. Is this criticism fair or does it amount to no more than an academic analysis which reflects a failure to appreciate the realities of how Ireland is actually governed? Does the analysis take account of the problems "on the ground" of maintaining schemes or programmes where the resources available are inadequate? Is it not the case that the actions of the Department actually improved the real level of support being provided to elderly long-stay patients and their families? Were the Department's actions - in taking short-cuts, in disregarding legal advice, in assuming powers which technically it did not have, in resisting a growing weight of evidence and complaints that its subvention scheme was seriously flawed - were these actions understandable in that the alternative (amending the legislation) was likely to be politically unacceptable? Is it fair to expect that the health boards should have acted independently of the Department (their paymaster) and have satisfied themselves that the Regulations were valid?

In the long run, the exercise of non-existent authority, the "surreptitious" (to quote one of the commentators) introduction of family assessment, the disregard for clear principles of law, the sustained proffering of incorrect advice, the reluctance to acknowledge mistakes, the tardiness in the Department's dealings with the Ombudsman's Office - all of these can only undermine public confidence in government and in our democratic institutions and call into question whether the present arrangements facilitate efficient, open and accountable government. From the point of view of the Oireachtas, to which this report is addressed, the issue is whether its intentions, as expressed in legislation, were honoured as befits its constitutional status.

The Ombudsman operates in the real world and recognises that resources are limited. Sometimes people's needs can only be met on the basis of a system of priorities. So long as these priorities are set by reference to clear and transparent criteria (for example, as with housing lists or orthodontic treatment waiting lists) the necessary element of fairness is maintained; although, in the Ombudsman's view, these criteria should properly be provided for on a statutory basis. Furthermore, if economic and financial difficulties of a serious nature arise, any diminution of entitlements should be effected by reference to these criteria.

But in relation to the payment of subventions to patients in private nursing homes, the Ombudsman is convinced that the actions of the Department and of the health boards were fundamentally wrong. What was done represented, in the eyes of the Department, a pragmatic response to a difficult situation; one in which, in effect, the Department (along with the health boards) was expected to achieve a particular objective without being given the means so to do. The Department always had the option to declare that what was expected, viz. the creation of a nursing home subvention scheme, was simply not achievable. But it appears that within the culture of Irish public administration, in which the head of a Department of State is almost invariably an elected member of the Oireachtas, this type of approach is rarely seen as a real option. In this concluding chapter, the Ombudsman wishes to move from the particular case represented by the nursing home subvention scheme to more general and, indeed, more fundamental considerations.

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This report is concerned with a particular social policy initiative, how it was conceived, provided for in legislation, funded and implemented. The Ombudsman became involved because members of the public complained about the manner of its implementation. The Ombudsman's investigation of these complaints reveals serious deficiencies and these are detailed in the earlier chapters of this report. Stepping back from all the detail of the earlier chapters, there is one overarching issue which may be put in the form of the following questions: why did this project go so badly wrong? why did it continue to operate so unsatisfactorily for so long? which systems, which should have picked up on these problems, failed to function? In a democratic society, where governmental arrangements are predicated on a system of checks and balances, one is entitled to expect that oversight and accountability mechanisms would have identified and dealt with these problems. The fact that this did not happen has to be a cause for concern.

The Ombudsman's Office - though not provided for constitutionally - forms part of our system of checks and balances and this report to the Houses of the Oireachtas is intended to draw attention to one particular failure within the overall accountability framework. However, the Ombudsman's jurisdiction relates to administrative actions only and does not encompass all of the elements which make up the wider governmental process. The present report has identified serious issues in regard to the relationship, on the one hand, between the Oireachtas and the Executive and, on the other, the relationships within the Executive between the political and administrative levels as well as between those controlling resources and those in receipt of resources. The Ombudsman is drawing attention to these issues in the hope of encouraging serious debate on them. In this regard, the present report reinforces the concerns expressed by the Ombudsman in his report Lost Pension Arrears which was presented to the Oireachtas in June 1999.

A detailed analysis of the constitutional and legal framework of government is beyond the scope of this report but a brief survey of the issues, and of possible responses, is presented here. Because these issues relate to accountability, to authority and to oversight mechanisms generally, they are of central importance in a democratic society.

Bunreacht na hÉireann, Article 15.2.1

The Government shall be responsible to Dáil Éireann.

The Government shall meet and act as a collective authority, and shall be collectively responsible for the Departments of State administered by the members of the Government.

Bunreacht na hÉireann, Article 28.4.

Oireachtas and Executive

The model for government in Ireland is set out in the Constitution (particularly Articles 6, 15 and 28) and in statute (particularly the Ministers and Secretaries Act, 1924 as amended). Ireland is a parliamentary democracy with a written Constitution providing for the traditional division of powers between the legislature, executive and judiciary. The executive power of the State is exercisable by or on the authority of the Government, which acts collectively and which is "responsible to Dáil Éireann". The Government is collectively responsible for the "Departments of State administered by the members of the Government", i.e. by Ministers. Each Department of State is a "corporation sole" and all the acts of a Department are the acts of its Minister for which she or he is responsible to the Dáil.

This model of government is posited on notions of checks and balances and accountability. Practice in recent decades suggests that, increasingly, this model is more of a theoretical construct than a reality. This may be particularly the case in terms of the actual balance of power as between the executive and the legislature and in terms of the capacity of the legislature to supervise the executive.

The notion that the Oireachtas sets policy, makes the laws and then leaves it to the executive to implement the laws does not fit with how government operates in practice. The reality, as attested by many political scientists and commentators, is that the Government once elected controls the Houses of the Oireachtas with a resulting diminution in the capacity of the Houses to supervise the executive. For all practical purposes, it is the Government which decides policy; which proposes legislation and ensures its passage through the Oireachtas and, subsequently, in its executive capacity ensures that the laws are implemented.

In Administrative Law in Ireland (3rd edition, 1998), Hogan and Morgan describe the Irish governmental system as a "fused executive-legislature" rather than one in which the executive and the legislature are separate. They write:

"... all the Dáil's powers over the Government are conditioned by the basic fact of political life which is that a Government can almost always command the support of a majority of deputies, because deputies are elected principally on the basis of the party which they have pledged themselves to support in the Dáil. Such is the strength of the whip-system that the legislature cannot be regarded as speaking with a voice independent of the executive and, so, it is realistic to characterise the central element in the Irish governmental system as a fused executive-legislature."

Writing almost 30 years earlier than Hogan and Morgan, the same issue was addressed by Basil Chubb in somewhat starker terms:

1.deciding on legislation

2.establishing departments and other agencies of the State to implement fully and fairly legislation,

3.ensuring that Ministers, Departments and State Agencies are fully accountable to it, and

4.holding the Government to account."

Committee of Public Accounts, Parliamentary Inquiry Into DIRT - First Report, December 1999

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If Chubb's analysis is accurate - and several more recent commentators appear to take the same broad view1 - then it would make sense either (a) to legitimise the actual practice by way of an appropriate amendment to the Constitution (while taking care to provide for some new system of checks and balances) or (b) change the practice in a manner which allows the legislature to exercise its constitutional functions of law making and of supervising the executive. It is disappointing that the 1996 Report of the Constitution Review Group makes no proposals in this area. However, it does seem to the Ombudsman to be fundamentally unsatisfactory that the practice of government should diverge so significantly from the theoretical model.

Whereas Dáil Éireann remains supreme in that it retains the ultimate power of making or breaking a Government, power actually resides with the Government rather than with the Oireachtas. Some Oireachtas members, for their part, give the impression that legislation is the property of the sponsoring Minister and his or her Department rather than of the Oireachtas itself. This is particularly the case with lengthy and highly technical Acts such as the annual Finance and Social Welfare Acts. In terms of secondary legislation, as this present report suggests, the Dáil and Seanad appear to have no effective mechanism for vetting regulations. This means that the Dáil and Seanad find it very difficult to exercise any legislative or supervisory role other than what is permitted by the Government of the day.

The main casualty in all of this is the integrity of the governmental process. As currently operated, the system of checks and balances envisaged in the Constitution appears not to be functioning. If it were functioning, it is unlikely that the difficulties with the nursing home subvention scheme (as described in this report) would ever have arisen.

If the system had functioned properly in this case, the issue of requiring adult sons and daughters to contribute to their parents' nursing home costs would have been raised, debated and decided upon within the Oireachtas. Similarly, if the Oireachtas had been made aware at the outset that the State did not have the financial capacity to meet its obligations to elderly patients in need of nursing home care, then it could (had the system functioned properly) have debated priorities and options and, perhaps, decided to target scarce resources more effectively. For example, the Health Acts might have been amended to confine hospital entitlement to a smaller proportion of the population. The Ombudsman is not aware that any such analysis or proposal was ever put to the Dáil and Seanad. The action actually taken was at the executive level and was by way of secondary legislation which the Dáil and Seanad had no real opportunity to debate or amend. It is true that, within a restricted timeframe, a motion opposing the coming into effect of a regulation may be put down in either of the two Houses of the Oireachtas; but the volume of secondary legislation is now so great that such motions seldom, if ever, occur.

Eunan O'Halpin, "Policy Making", in Politics in the Republic of Ireland (eds. John Coakley & Michael Gallagher), 1992

Concerns Expressed

Within the Oireachtas itself, and among commentators on politics and government, concerns are increasingly being expressed about the manner in which the respective branches of government relate to one another and, more specifically, as to whether the Houses of the Oireachtas are in a position to exercise fully their functions. The Ombudsman feels it is important to advert to these expressions of concern and, without in any way wishing to be drawn into party political debate, some recent examples are summarised below.

_ At a meeting of the Committee of Public Accounts (PAC) on 13 July 2000 the Committee Chairman, Deputy Jim Mitchell, made a series of comments on the need for parliamentary reform as well as wider governmental reform. Deputy Mitchell observed:

"Following the DIRT inquiry it was the conclusion of this committee that all the recent scams, going back to the beef scandal, were contributed to, in part at least, by the lack of performance by the Oireachtas itself in obtaining accountability from the Government and state agencies."

Deputy Mitchell went on to comment that insufficient attention was being paid by the House itself to "the need for accountability, proper processes, and checks and balances in the system".

_ In its report of December 1999, entitled Parliamentary Inquiry Into DIRT - First Report, the PAC discussed the issue of Oireachtas reform. The PAC identified a number of weaknesses in procedures and practices and made a series of recommendations as to how matters might be improved. Overall, it was the view of the PAC that "accountability to the Oireachtas is weakened ... by a lack of clear boundaries between Parliament and Government."2

_ The Fine Gael party published a policy document in September 2000 entitled A Democratic Revolution - A Plan for Institutional and Public Service Reform. This document drew attention to a number of concerns of relevance in the present context. These included:

• a concern that the "laws enacted by Parliament elected by the people are often set aside or ignored by the very public servants hired for the directly opposite purpose";
• a concern that legislation is increasingly framed "in a way that allows political or administrative discretion to decide which individuals should benefit from it, rather than the application of clearly drafted rules";
• a concern that the Houses of the Oireachtas are ineffective "in scrutinising the activities of Ministers so as to ensure that Ministers are acting in the public interest in the discharge of their duties..." and a related concern with what is termed the "subjugation, possibly unconstitutional, of the Houses of the Oireachtas to the Government which they are supposed to hold to account".

Basill Chubb (ed.), A Source Book of Irish Government, 1964

_ Speaking in a personal capacity, the present Attorney General, Mr. Michael McDowell SC recently alluded3 to a "democratic deficit" arising from the non-involvement of the Oireachtas in relation to European Union law making. Mr. McDowell made the point that, "unlike some other European member state parliaments, the Oireachtas does not, to any significant extent, claim for itself a right of input into forthcoming directives or regulations". He went on: "Indeed, the scheme of incorporation of directives into Irish law envisaged by the European Communities Act, 1972 which allows for incorporation by regulation subject to parliamentary veto has little effect in reality. The theoretical supervisory role exercisable under the 1972 Act remains just that - theoretical." Mr. McDowell suggested that it is possible for a Minister at a departmental level to negotiate the terms of a draft directive or regulation without reference to his or her Government colleagues and to make a regulation under the 1972 Act transposing it into Irish law "without substantial governmental involvement and without any notice at all to the Oireachtas."

_ The Government has recently published a discussion document, A Dáil for the New Millennium, which "recommends the most radical reappraisal of the workings of the Dáil parliamentary system since the foundation of the State." These proposals are designed to "increase the relevance and effectiveness of the Oireachtas by way of reform of some of its undoubtedly outmoded procedures and practices." These proposals appear to represent a response to some of the concerns identified earlier in this chapter.

A Democratic Revolution

_ A Plan for Institutional and Public Service Reform (Fine Gael, September 2000)

Relationships within Executive

What is of interest here is the nature of the relationship between a Minister and his or her senior civil servants. The legal status of the Minister as a corporation sole generally precludes the possibility of independent action by senior civil servants. All acts of the Department and of its officials are the acts of the Minister. This remains the case even after the enactment of the Public Service Management Act, 1997. Of course, in practice, common sense has to apply in relation to the extent to which a Minister should be held accountable for the actions of each and every official. As a general rule of thumb, accountability should apply to those actions of which the Minister was aware, or of which the Minister as head of the Department could reasonably be expected to have been aware, or to have made himself or herself aware.

Clearly, the strict legal position could give rise to considerable practical difficulty in a situation where the range of activity of a typical Department is far beyond the compass of the individual Minister. The particular modus operandi which evolved to cope with this difficulty was succinctly described in the 1969 Report of Public Services Organisation Review Group (Devlin Report) - see opposite.

Within this model there was a clear division of functions as between the political (Ministerial) side and the official side. Good government, as Professor Séamus Ó Cinnéide put it, "depended on a certain distance and balance between the two sides"4. The question is whether this traditional modus operandi, as described in the Devlin Report, continues to operate some 30 years later. The Ombudsman has already commented on the cumulative effect of a series of recent enactments - the Public Service Management Act, the Privilege and Compellability Act and the Freedom of Information Act - on this traditional model.5 The effect of these enactments, as the Ombudsman sees it, is to move away from the traditional model without having put anything specific in its place.

Other commentators are perhaps more forceful in contending that the traditional, extra-statutory arrangement no longer exists. For example, Professor Séamus Ó Cinnéide argues that there has been a radical change amounting to an unspoken revolution in our system of governance (see following page).

In the case of the nursing home subvention project, the subject of this present report, it is not the Ombudsman's conclusion that the officials failed to consult with the Minister, or that they failed to act in accordance with his wishes. Ultimately, the Minister (and more than one was involved over the period) signed the various regulations and is, as a matter of constitutional law, responsible for them. Even if the Minister had not been properly briefed, which is not contended by the Ombudsman to have been the case, he would still be responsible. What is perhaps cause for concern is the paucity of written evidence of the Minister's involvement and of the Minister's own views on the subject. This apparent reluctance to record the Minister's involvement represents a departure from the traditional model in which senior civil servants could expect to have a detailed record of the Minister's thinking. The traditional model certainly existed up to the 1980s.

The Ombudsman has already7 raised the issue of what appears to be a growing practice within Departments whereby Ministers tend not to put their views or instructions explicitly in writing. For example, the views of the Minister may be conveyed verbally, or conveyed via his or her private secretary, or conveyed through such phrases as "as directed" or "as discussed". While acknowledging the pressure of work facing all Ministers, there are a number of difficulties with this type of practice. In the immediate term, it may lead to a lack of clarity as to a Minister's actual views and intentions. In the immediate and medium terms, failure properly to record a Minster's views and intentions may well undermine that sense of absolute trust between a Minister and his or her senior officials which is vital to an effective working relationship. Such a practice also has implications for accountability; the absence of a clear, written record can lead to uncertainty when the actions, or inactions, of a Minister (and his or her Department) are being scrutinised by the Oireachtas. In the longer term, and from an archival point of view, it means that public administration records are going to be incomplete.

Report of Public Services Organisation Review Group (Devlin Report) 1969

There are two other elements which call for comment. First, it is disappointing that there appears not to have been any detailed discussion within the Department of Health on alternative courses of action, including the option to amend the legislation, when it became clear that the subvention scheme as originally envisaged could not be realised within existing resources. (The issue of health service funding, which is of relevance in this context, is discussed later in this chapter.) One would expect that, in putting proposals before a Minister, a range of alternatives should be proposed. While senior civil servants, in putting alternatives, may be expected to be attuned to political realities, it is surely their role sometimes to put unpalatable options to their Ministers so long as the "pros" and "cons" of the various options are clearly outlined. The Ombudsman has not seen any records which suggest that serious discussion on such alternatives took place.

Second, the dialogue between the Department of Health and the Department of Finance, on the one hand, and between the Department of Health and the health boards, on the other, clearly falls in to the category of the "controllers" talking to the "controlled". As often happens, this dialogue was concerned largely with post hoc "damage limitation" so far as financial costs were concerned. It is self-evident that the Department of Finance has a crucially important role to play in controlling public expenditure, especially in a demand led sector such as health. It is equally self-evident that the Department of Health must ensure that maximum effectiveness is achieved by the health boards in using the resources given to them. But dissatisfaction on the part of the general public also gives rise to considerable costs which are not taken into account when schemes and programmes are being costed. What seems to have been lacking from the dialogue is an acceptance that, increasingly, human rights, including economic and social rights, have to be addressed. In a number of areas recently this has given rise to criticism of the executive by the judiciary.8 This aspect is further discussed later in this chapter.

Relationship between Department and Health Boards

The question has been posed in this report as to why the health boards did not rely on their status as independent, statutory bodies and refuse to operate a scheme about whose validity they had real doubts. To a large extent, health boards appear to act in relation to the Department as if they are satellites rather than independent bodies; though this is not the case in every circumstance for every board. For example, several of the health boards received clear legal advice that aspects of the Regulations were invalid and that aspects of their practice were not defensible. With some exceptions, the health boards did not act on the advice though they did bring it to the attention of the Department. The majority of the health boards were prepared to continue with a scheme, about which they increasingly had doubts, for as long as the Department told them they should.

Séamus Ó Cinnéide

Democracy and the Constitution, Administration, Vol. 46, No. 4.

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It is not possible in this report to deal in any detail with the complex relationship between the Department and health boards. However, it does appear to the Ombudsman that the most significant factor determining this relationship is the fact that the health boards have no financial independence; for all practical purposes, they are entirely dependent on the Department for their finances. The Department, for its part, is dependent on the Department of Finance for its allocation. Accordingly, it seems to the Ombudsman that health service funding - both the manner and the amount - is a critical consideration.

The issue of health service funding was a live issue in the 1980s and a Commission on Health Funding, which was set up in 1987, reported in September 1989. The Commission's terms of reference are given opposite.

A majority of the Commission favoured a public funding system with funds coming from general taxation. A minority favoured a compulsory health insurance, or ear-marked tax, system which would link clearly the services provided with their cost and provide a secure source of funding for healthcare. However, the kernel of the Commission's conclusions was that the solution to the problems facing the Irish health service did not lie primarily in the system of funding; rather, it lay in the way in which services are planned, organised and delivered.

Since the Commission's report there have been significant changes in the attitude to compulsory insurance, as epitomised by the PRSI system, as well as to ear-marked taxation. The PRSI system, in particular, is seen as an essential element in protecting citizens against loss of income on retirement or because of unemployment or illness. Local authority financing is now moving in the direction of greater reliance on ear-marked taxation and funds in support of the view that local government should enjoy greater autonomy from central government.

It is clear that the population of Ireland is an ageing one. Already, special provision is being made from budget surpluses to meet future pension costs. Similarly, it is clear that demand for health services will grow and it may be that the question of health funding should be revisited. Any revisiting of the issue might pay particular attention to the desirability of ensuring health boards are not hindered, in exercising their statutory role, by the nature of the funding mechanism itself. This is not to suggest that the Department does not have a significant role to play in relation to the health boards; rather, it is to say that the Department's relationship with the health boards will be more transparent and effective where the lines of demarcation are more clearly drawn.

Report of the Commission on Health Funding, 1989

What Next?

It may be that if the Committee system, which exists at present in the Houses of the Oireachtas, had been in operation when the Health (Nursing Homes) Bill was being considered that some of the problems identified in this report might have been avoided. In particular, the gulf which occurred between policy and implementation might have been avoided, or at least narrowed. The present system now seems flexible enough to enable the Committee dealing with a particular piece of legislation to explore its "mechanics" with the officials of the sponsoring Department. It may be also that, if the Freedom of Information Act, 1997 had been in operation in the early 1990s, the pressure on the Department to get to grips with the defects and illegalities of the nursing home subvention scheme might have been much greater.

Nevertheless, there is no certainty that the failures in accountability highlighted in this report could not occur in the case of other schemes and programmes. This is because of certain basic features of the system:

• the difficulties that the Houses of the Oireachtas face in attempting to monitor the growing mountain of regulations and other secondary legislation by which policy is implemented;
• the weakness in the links between two separate legislative processes, the process whereby the Houses of the Oireachtas create new entitlements or benefits for the public and the process by which Dáil Éireann allocates resources annually to facilitate the actual provision of these entitlements or benefits;
• the difficulties faced by members of the Houses of the Oireachtas in feeding into the Administration, in a formal and transparent way, their concerns and those which are brought to their attention by their constituents, or indeed by the Ombudsman's Annual Report, in a way which ensures an effective response.

Secondary Legislation

In the shorter term, establishing a mechanism for monitoring secondary legislation is an obvious step worth taking. Such monitoring might have to be done, initially at least, on a selective basis. This could be done by ensuring that, in the case of certain Bills, the section dealing with the making of regulations by the relevant Minister would provide that an affirmative resolution from each of the Houses of the Oireachtas would be needed before any such regulations would come into effect. This would be particularly the case where the regulations in question confer entitlements, require payments by, or otherwise impose penalties on members of the public. There is something to be said for having the Committee, which dealt with the passage of the legislation, also deal with monitoring the making of the regulations. In this context, what was done in the case of the Ombudsman Act, 1980 may be of interest. When the Ombudsman Act was passed it contained, at Section 4(10), the "standard" provision in relation to the making of regulations whereby public bodies could be added to, or deleted from, the list of public bodies subject to investigation by the Ombudsman. When the Act was implemented in 1984 with the appointment of the first Ombudsman, the then Minister introduced the Ombudsman (Amendment) Bill. This, when enacted, provided that any regulation under Section 4(10) required an affirmative resolution by each of the Houses of the Oireachtas. It was considered that any proposed amendments to the Ombudsman's jurisdiction were worthy of consideration by the two Houses.

Funding of Entitlements

Dáil Éireann might also wish to give consideration to the way in which, at present, it deals with the Annual Estimates. It might be useful if expenditures which are effectively non-discretionary (i.e. which arise from entitlements which must be met, for example, public service pensions) were identified. The Departments responsible for these expenditures would be asked to confirm that these were the best estimates of what was required to meet these entitlements; if this proved not to be the case, they would face questioning by the Public Accounts Committee in due course. If, because of a general need to reduce public expenditure, it became necessary to reduce the estimate for a non-discretionary service below the realistic amount, then the Department concerned would have to indicate the actions required to "square the circle". It would then be a matter for Dáil Éireann to decide how this might be achieved.

Oireachtas-Executive Interaction

There may also be a case for particular Oireachtas Committees, from time to time, pursuing with specific Departments areas which have been identified as giving rise to a significant number of justifiable complaints.

Human Rights Issues

The Ombudsman has already observed that, in relation to the particular scheme the subject of this report, there is little evidence that notions of the rights of applicants were paramount. Whereas it may be easier to recognise and meet basic rights in times of economic success, it is more important that those same rights are provided for when times are hard.

With the passing of the Human Rights Commission Act, 2000 and the intention that the European Convention on Human Rights will become part of Irish law, it is clear that international human rights instruments will increasingly represent a significant influence in the State's approach to service provision. This is likely to be particularly so in the case of entitlements for groups such as children, the disabled, the homeless, travellers and other minority groups, the elderly, immigrants and persons in custody and detention. A human rights approach may not, in fact, be all that different to what our Constitution already provides; but it may well be the catalyst to unlocking what is already contained in the Constitution.

This approach will pose fresh challenges for our institutions of government. It will underline the importance of an open and accountable parliament, an executive which is accountable to that parliament, an independent and impartial judiciary and a free and responsible media. These institutions will have to develop an awareness of the relevance of human rights protection not only to existing international instruments but also to domestic law and, indeed, to administrative schemes and programmes which are not part of domestic law. Citizens too will need assistance, on the one hand to develop their awareness of these rights and how they impact on their daily lives and, on the other, to develop new responsibilities which tolerate and encourage support for individual difference. Viewed in the broadest sense, a government's task is to serve the interests of its citizens and it derives its legitimacy from the way in which it does so. The function of serving its citizens is most clearly seen in areas in which the government protects or cares for individuals and their interests, or provides public services. Although it may seem paradoxical, the public also needs to be assured of protection against the government when it fails to fulfil its responsibilities in relation to the public. For example, doing justice to social, economic and cultural human rights and the right to development may pose serious problems if a country's finances do not permit the government to honour justifiable claims. In that situation it is important that the model of government in place permits the allocation of scarce resources to be administered under a system of priorities in an equitable and transparent manner. In cases where a government has not adequately protected these and other human rights, it is important that the citizen is enabled to pursue the matter further either to the courts or to the appropriate "national human rights institution" in the form of a National Ombudsman or a Human Rights Commission.

(a) the rights, liberties and freedom conferred on, or guaranteed to, persons by the Constitution, and

(b) the rights, liberties or freedom conferred on, or guaranteed to, persons by any agreement, treaty or convention to which the state is a party."

Human Rights Commission Act, 2000

The growing importance of the human rights dimension is evident from the increasing extent to which the case law of the European Court of Human Rights (ECHR) is penetrating national legislation. The European Convention on Human Rights celebrated its 50th anniversary last year. Of all the judgements handed down by the ECHR over that period, some 80% have been given in the past ten years.

It should be clear from the above that the subject matter of this report - the elderly and the manner in which they were treated in relation to nursing home subventions - can be analysed at two distinct levels. The first level is quite specific and involves a consideration of the actions of the Department and the health boards by reference to Section 4 of the Ombudsman Act. As already indicated, there is no doubt that on this basis significant maladministration has occurred. The second level is more general but equally important in that it involves a consideration of the extent to which the human rights of elderly patients in nursing homes have been infringed. Admittedly, awareness of the human rights dimension of these issues was not well developed in the early nineties. However, one of the central messages of this report is that the human rights dimension of issues of this type need to be carefully considered by the Oireachtas and the Executive from now on.

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The Ombudsman is not convinced that the various measures mentioned above can, by themselves, deal adequately with what is fundamentally a constitutional matter. In the longer term, the relationship between the Oireachtas and the Executive, as well as the relationships within the Executive, may need to be thought through afresh in the context of a wider programme of constitutional reform. There is already a momentum in support of such reform and the Ombudsman hopes that this report will make a contribution to the debate.

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