Ombudsman Emily O'Reilly has slammed the HSE and Department of Health for denying all older people their rights to State-provided nursing home care.
The claim is made in a new investigation by the Ombudsman based on 1,200 complaints received over 25 years about the right to long-term nursing home care for older people.
The report of the investigation says a consistent theme in these complaints has been the failure of the health boards/HSE to meet their statutory obligations and provide for older people in public nursing homes, with the result that many have had to avail of expensive private nursing home care and have suffered financial hardship as a result.
The campaign group Age Action said the issue at the heart of the Ombudsman's report is the public entitlement, in principle, to inpatient care under the 1970 Health Act for those needing a nursing home bed, with many having had had to pay for private care despite this.
It said there have not been sufficient numbers of public nursing home beds to meet demands.
The Department of Health and HSE have disputed for many years the premise that people are actually legally entitled to have nursing home care provided by the State under the Act.
Age Action said while the State was forced in 2004 to start repaying public patients who had been illegally charged for nursing home care, the remaining issue of older people forced to pay for private care because they could not get a public nursing home bed was "the elephant in the room" and this is dealt with in the Ombudsman's report.
The report says such State financial help that was available towards the cost of private nursing home care was inadequate, and in those circumstances, many older people and their families suffered significant hardship in meeting nursing home costs.
The report concludes that there is a legal right for the State to provide nursing home care and people should not have to take up private care other than as a matter of choice.
However, the report does not recommend specific means of financial redress for those forced to pay for care, as to compensate those affected could result in a taxpayers' bill of several billion euro, and this could not currently be met by the Exchequer.
Instead, the Ombudsman says the Department of Health could devise a limited scheme under which families who have suffered serious financial hardship can be assisted, for example through supplementary welfare allowance.
The Ombudsman's office stresses that in conducting its probe; it met with unprecedented opposition and lack of cooperation from the Department and HSE.
There are currently more than 300 legal actions in place against the State on behalf of people seeking compensation for the cost of private nursing home care.
Ms O'Reilly said this official opposition appeared to emanate from a concern that any validity in her report's findings could have enormous financial implications for the State in terms of compensation.
She says the Department and HSE questioned her jurisdiction to conduct the probe, but she was satisfied it was within her rights to do so. The Ombudsman said the Government has claimed she was acting outside her powers and that her actions interfered with the State's defence of several hundred legal cases.
The report says the Department and HSE have made very serious charges against the Ombudsman's office - in effect, that the office acted in bad faith. The Ombudsman rejected these charges.
In the report, the Ombudsman says under the 1970 Health Act, people are entitled to receive inpatient care from the State, including nursing home services. The Department of Health has disputed this, claiming that while people may be "eligible" for these services, they are not "entitled" to them.
The Ombudsman says the Department's legal distinction has no validity.
The Ombudsman's report also raises concerns about the new Fair Deal scheme, which is meant to end the hardship caused to patients and families from having to personally fund nursing home care.
The scheme asks for a fixed contribution towards care costs from a person's assets, such as property, with the State paying the balance.
The report says there are problems with the range of services covered under Fair Deal and with how means assessments are conducted.
It also notes that the Government's view is the introduction of Fair Deal confirms that responsibility for providing nursing home care for any person is a matter for them and their family and the HSE has no legal obligation to provide such care.
The Ombudsman disagrees with this and claims the obligations of the State to provide care under the 1970 Act still have effect.
She adds that the language used in the Fair Deal legislation is not written in "Plain English" and is impenetrable.
The Ombudsman concludes that the State, through its agencies, has failed over many years to provide people with their legal entitlement to nursing home care.
"This failure has inevitably caused confusion, suffering and hardship."
It wants the HSE and Department to acknowledge "without prejudice" that the State, in the case of older people requiring nursing home care, has not been meeting its obligations under the 1970 Health Act.
The Ombudsman also recommends that an independent group be set up to advise Government on how best to handle legal actions or threatened action, resulting from alleged failures of the State to meet its obligations in relation to services, particularly to vulnerable groups.
Robin Webster of Age Action said the issue of nursing home care provision is in effect "the most prolonged case of financial elder abuse by the State.
“If people were entitled to a public bed then they should not be forced to take a subvented bed or have to pay the full cost of a private bed."
Commenting on the report, Health Minister Mary Harney claimed the essential argument made in it was that the statutory duties imposed on the health service in the 1970 Health Act in relation to inpatient care including nursing home services, are not subject to any resource limitation.
The Minister said, however, the Government was not aware of any country in the world where health services were not provided without some form of prioritisation that reflected resource limitations.
“It is not credible to suggest that the Oireachtas, when it enacted the 1970 Act, intended and expected all services to be provided immediately once a clinical/social need for them had been established.”
The Minister rejected claims that she or her Department had not cooperated with the investigation. However, she said she had fundamental concerns about the way the Ombudsman’s investigation was undertaken.
She also stressed that the purpose of the Fair Deal scheme was to equalise State support for nursing home residents and to ensure that care was affordable for all who needed it.
