The former chief executive of the South Eastern Health Board has said that, while he raised "compelling" legal opinion indicating that nursing home charges were illegal with the Department of Health on a number of occasions in 2003, he had never discussed the matter with the then minister, Micheál Martin.
Pat McLoughlin told the Oireachtas Committee on Health and Children yesterday, however, that an eight-page summary of the legal advice obtained by his board had been included in briefing material for the minister and advisers in December 2003.
Mr Martin has denied knowing anything about the nursing home charge issue until the controversy arose last autumn.
Mr McLoughlin said he would have contacted the minister directly only if the department had blocked efforts by the health board to have the matter referred to the Attorney General. He was satisfied the Department of Health and the health boards had agreed in December 2003 that the matter should be referred to the Attorney General's office.
The Travers report on the controversy found last month that this request for legal opinion had never, in fact, been sent.
Mr McLoughlin said that, following concerns raised by some patients and the Ombudsman, the former South Eastern Health Board had received its own legal opinion in late 2002 that charges levied on medical card patients in public nursing homes were illegal.
He said the health board alerted the Department of Health to this opinion, but the department had insisted its legal advice rebutted it.
"There was no meeting of minds," he said.
Mr McLoughlin said he had then raised the legal opinion "as an emerging issue" with senior department officials at a meeting on the health board's service plan in February 2003.
He said former secretary general of the Department of Health Michael Kelly agreed to hold a bilateral meeting with the board on the issue in March 2003.
However, Mr McLoughlin said the department still maintained the charges were legal.
He said the view of the health board's lawyers was that the department's legal opinion dealt with an entirely different matter and "not with the fundamental issue of the legal ability to charge".
Mr McLoughlin later sent a summary of the legal opinion to the other health boards for a tele-conference with their CEOs in June 2003.
The issue was then placed on the agenda for a meeting with the minister and his top officials in December 2003.
Mr McLoughlin said he had been concerned at the time lag involved in the issue being dealt with by the Department of Health. However, he said that everyone at the meeting in December had been happy when the matter was referred to the Attorney General.
Mr McLoughlin said it was not up to the CEOs to "badger the department" about when the Attorney General's view would be available.
Mr McLoughlin was adamant that at no stage had he ever discussed the legal opinion with Mr Martin. He said that it was "an issue between the CEOs and the secretary general in the first instance".
He said the decision to place the charges issue on the agenda for a meeting with the department in December 2003, when Mr Martin was present, was not "to ensure that there was ministerial buy-in in relation to the situation". He added: "It was an issue to be dealt with."
Mr McLoughlin rejected media reports that the health board had stopped levying charges on patients in nursing homes who complained.
He said he took the view that the charges should continue pending clarification from the Department of Health.
However, one patient had stopped paying the charges and was not pursued by the health board.
