A message to citizens on rights and means

Just when it seems that the last depths have been plumbed, they find a way to go even lower

Just when it seems that the last depths have been plumbed, they find a way to go even lower. Last month the Ombudsman published a ferocious indictment of the behaviour of the State in relation to elderly people in nursing homes.

Though it is in some respects a complex document, its basic message was stark and simple. Over a period of six years, from 1993 to 1999, the State lied to and stole from vulnerable citizens, unlawfully seizing money which belonged to elderly patients and pressurising their adult children to hand over cash to which the State was not entitled.

In a normal democracy, this would be a huge scandal. The notion that State agencies like the Department of Health and health boards could conspire to cheat the very people they are supposed to serve would provoke public outrage. Heads would roll. There would be a collective sense of shame.

Yet, as documents published by the Sunday Tribune last Sunday suggest, where there should be shame, there is only brazen defiance.

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The scandal involved two cruel deceptions. Elderly patients were not told that, as a matter of law, they were entitled to keep a fifth of their old-age pensions as pocket money. The point of this legal provision was to give them the modicum of personal dignity which comes with being able to buy a magazine or to make a phone call without having to cadge the money from someone else. The State deliberately took this money off them.

And, at the same time, most of the health boards, with the encouragement of the Department of Health, were evading the law which obliges them to subsidise private nursing-home care where public care is not available.

They invented a spurious system of pretending that the means of the elderly person included the income of all their adult children. In many cases, people were forced to sell their homes to pay for care to which their parents were entitled. If they refused to cough up, the husband or wife of the patient had to hand over most of their pensions, leaving them with a pittance. All of this was unlawful.

YEARS of patient, diligent work by the Ombudsman's office finally exposed this racket. Micheal Martin, at the Department of Health, knew that what had happened was politically indefensible and that the only decent option was to repay the money and get on with providing the care which elderly citizens deserve.

Yet the reaction from Charlie McCreevy and the Department of Finance was literally shameless. For Mr McCreevy, admitting that weak citizens have the right not to be robbed by the State is just left-wing pinko nonsense. His response to the scandal is twofold: give back nothing and find a new way to make the families pay. He told Mr Martin to hold firm and not make any retrospective payments.

This reaction seems in part to have been based on the advice of the Attorney General that the State had no legal obligation to pay back the money which was taken from old people and their families because the Minister for Health did not know that the way he was operating the scheme was unlawful.

This, in itself, is highly dubious since the Ombudsman's report shows that the Department of Health knew very well that what it was doing was unlawful under the 1990 Health Act. All the legal advice it received at the time stressed that there was no obligation in common law on children to support their parents, and the 1990 Act does not impose such an obligation. The demand that children pay for care to which their parents were legally entitled was plainly and unarguably ultra vires.

More important than the legality of what was done, however, is the morality. The system as it was applied depended entirely on deception and cruelty. It could not have been enforced without a systematic campaign of keeping elderly people and their families in ignorance of their rights, bullying them into finding money which most could not afford and blackmailing them with the implicit threat that they would be dumped out on the street if they failed to do so.

That Mr McCreevy's response to all of this was to issue orders to hold firm tells us all we need to know about the reality behind all the Good Time Charlie bluster.

That response, moreover, is deeply ideological. While he has no problem with spending money on tax breaks for the wealthy or on the Bertie Bowl, his fear, as he expressed it to Mr Martin, is that accepting the principle that elderly people have a right to the care they need will create pressure for higher State outlays on health and general support services for older people.

To avoid that horrible prospect, he is determined to establish the principle that elderly people are not citizens with their own rights but dependants of their adult children. And if this principle can be established in relation to nursing-home care, why not apply it to every other kind of State provision for the elderly, such as medical cards?

This is not about money. The Bertie Bowl will probably cost as much as providing nursing-home subsidies for the next 20 years. It's about reminding citizens that their rights are in direct proportion to their means.