Legal strategy on nursing home charges is ‘appropriate’, says Attorney General

Ireland’s Attorney General has concluded that a state legal strategy in relation to charging medical card holders for private nursing home care was “appropriate”.

The strategy was set more than a decade ago and has been continued by civil servants, ministers and attorneys general.

Pressure has been mounting on the Government to explain whether the strategy sought to prevent cases going to court to minimise pay-outs after a Mail on Sunday report.

The Government denied that the legal strategy is inappropriate, saying the state has always contested whether medical card holders are entitled to unlimited compensation for private nursing home care.

A report into the issue by Attorney General Rossa Fanning, requested by the Government last week, said the state had acted “prudently” in settling cases.

“In summary, I am satisfied that the legal advice furnished by the Office (of the Attorney General) in respect of the litigation concerning charges levied for private nursing home care was sound, accurate and appropriate.

“…It is clear to me that the Department acted prudently in settling a small number of claims involving care in private nursing homes rather than risking an adverse outcome in a test case, which could have provoked many more historic cases, all for the account of the taxpayer.”

As well as the nursing home charges issue, Mr Fanning was also asked to look into whether disability payments were withheld from vulnerable people living in institutional care decades ago.

Speaking in the Dail last week, Taoiseach Leo Varadkar said this issue seemed different to the private nursing homes charges, as the legal advice here was the state “didn’t have a leg to stand on”.

In his report, Mr Fanning concludes there was a legal “frailty” for the period from 1983 to 1996, before legislation had been enacted which changed the situation.

From 1999 to 2007 the state had an “arguable defence”, it said.

“Thus, it ought to be emphasised that the only temporal period that the state’s legal advice was particularly gloomy about was the period between 1983 and 1996, a period which at this point, ended some 27 years ago.”

He added: “It is important to emphasise that the policy was itself an entirely reasonable one, with a rational basis subtending it. Had it been given effect to by primary legislation, it would have been a legitimate exercise of policy-making function, with no irrationality, unconstitutionality or illegitimate discrimination.”

Commenting on the state’s legal strategy in general, Mr Fanning said that it was “surprising” that the state was being criticised for settling cases rather than pursuing them in the courts.

“This is the very opposite of ‘dragging plaintiffs through the courts’, which is what the state is sometimes criticised for when it does not settle cases brought against it,” he said.

In a wide-ranging introduction to the report, Mr Fanning warned against stereotypes painting the state as “cruel or unfair to its citizens”, listing the 226 billion euro worth of government debt published last week, and outlining two “unprecedented” ex gratia schemes provided by the State on defective apartments and mica redress.

Mr Fanning also said that though he can understand why people would feel the state should not be involved in adversarial court cases with its citizens, it was “unavoidable in certain cases” and “to think otherwise does betray a fundamental lack of understanding of our legal system”.

Commenting on criticism in the public domain of a strategy to settle cases rather than risk an adverse outcome, Mr Fanning said “this is precisely how our legal system works”.

He concluded: “There is no basis for suggesting that any of the cases were compromised, required judicial resolution or that there was or is anything inappropriate in settling cases outside of court.

“It is self-evident that there is no need to pursue costly and time-consuming litigation in court where both parties, i.e. the state and the plaintiff, agree to a mutually acceptable settlement.

“All defendants are entitled to consider the appropriateness of settlement prior to the cost and inconvenience of making discovery, and prior to the requirement to provide internal documentation to a litigation opponent.

“That is a calculation made in every case, and there is nothing surprising about it being considered here.”