10 March 2005
Dr. Henry: Planning ahead is always a good idea and the amendment suggests this should happen. I have one concern which I am sure the Minister will address. There is a dichotomy in this situation. The Department of Health and Children is in charge of policy and this matter is a policy issue regarding the care of the elderly in public and private nursing homes. However, the accounting and auditing of the health service will be in the hands of the Health Service Executive. No matter what policy the Department may make, the Health Service Executive will have a significant hold over whether the policy will happen because it will be in charge of funding. The Minister might elaborate on whether I am correct in this assessment.
We have had grim examples of the lack of proper accounting within the Department of Health and Children in regard to medical cards, to which I will refer later in the debate. While I recognise that much diverse work is being done within the Department, there will be great difficulty with the division of its funding. No matter what policy it puts forward, I do not know how it will progress that policy because the executive arm will be a totally different body. What the executive arm will do with excellent policy, I have no idea. Will the Minister elaborate in the context of the amendment?
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Dr. Henry: Section 1 allows a great deal of discretion regarding what might happen to people because of the clause “including the means of the spouse, if any, of that person in addition to the person’s own means”. If a couple had been separated for decades, would the legislation take account of that? I presume there are clauses in the legislation to ensure that huge sums of money cannot be transferred by a person requiring care to another person. However, what if the couple have been separated for years and perhaps even have a judicial separation, though they are not divorced? They may have made financial arrangements on separation. One person might have been profligate and the other might have tried his or her best to live in a normal and modest manner. The latter person might now be asked to subscribe towards the care of the former in a nursing home. That is not just.
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Dr. Henry: The other case mentioned by the Minister of State brings up exactly what I meant when I said that one could have a situation where all funds were transferred to the name of the other spouse so that the person would seem incredibly poor. It is also necessary to consider the other side of the coin, where one could have people who have been separated for a very long time. One such person could still be the spouse and could be asked to pay money. That person might not be very well off but his or her income will be taken into account.
I repeat that flexibility has got us into the mess we are in because some health boards, realising that they were doing something illegal, as informed by their legal advisers, stopped making deductions. I admit that some of them stopped making deductions only when they were told by some of the people in nursing homes that they should not be deducting money.
This could turn out to be a serious issue because the various people administering the scheme, who we can be sure will be short of money, will have flexibility which may give rise to another inequity in the scheme. I am not proposing this as a hypothetical situation but as one I see coming around the corner.
It worries me greatly that frequently we see legislation being rushed through the Houses even though Members bring up problematic cases that could arise. What happens? A couple of weeks later, or at a very good guess, two years, such a case arises. I see the issue before us as giving rise to disgruntled people making complaints very soon. I believe such people will nevertheless be legally liable because they will still be the spouses of the people involved.
When divorce legislation was introduced in this country, everyone said that we would all get divorced whether we wanted to or not. That did not happen. Substantial numbers of people have not changed from being separated to being divorced. They are the older people to whom this legislation will apply. As couples they made amicable financial agreements years ago but people will now be able to come chasing after them in their old age if they think there is a spouse who may have lived very frugally over the years and is better off than the one now in need of care. I am not putting this forward as a hypothetical case because I foresee such cases arising.
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Dr. Henry: One hears constant complaints that we are supposed to be legislators but just come in here to act as messenger boys or girls. If I see an aspect of a law that I believe may cause injustice, I must point it out.
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Dr. Henry: I do not wish to prolong the point, but I am only too aware that a euro can only be spent once. However, I feel that some people who in the past may have been very unjustly treated by a partner may now be unjustly treated by the State by being obliged to pay up for this person. I intend to put down an amendment on Report Stage, and we will consider it then.
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