Correspondence between the HSE and the Ombudsman in relation to the Ombudsman’s requirement for the production of documents under Section 7 Ombudsman Act 1980.
This is adjunct to the Ombudsman’s Investigation report “CARE DENIED - Failure to Provide Long-Stay Care for Under 65s” and is being published in accordance with the note on page 30 of that report.
1. The Ombudsman’s letter notifying the HSE of the Investigation and requiring the production of certain documents.
Our Reference : HRS/08/1417
& HRS/10/0746R
18 January 2012
Mr Cathal Magee
Chief Executive Officer
Health Service Executive
Dr Steevens' Hospital
Dublin 8.
Dear Mr Magee,
NOTIFICATION OF OMBUDSMAN INVESTIGATION
I refer to two separate complaints against the Health Service Executive received by the Ombudsman from Ms. and Mr . The complaints were made initially following the refusal of claims made by Ms. and Mr under the Health Repayment Scheme (HRS). Ms. 's HRS claim was in respect of her late mother, Mrs. , while Mr 's claim was in respect of his aunt, Ms. . Both complainants contend that their relative had no option but to enter long-stay nursing home care in private nursing homes because of the failure of the relevant health board (SEHB and MWHB respectively) to provide for their long-stay care needs. These complaints have been the subject of detailed correspondence between the HSE and this Office. I attach a copy of our letter of 21 July 2011 which sets out the facts (as we currently know them) of the two cases. Following the refusal of their claims under the HRS, the issue now raised by these complainants is that of financial redress for the costs incurred for private nursing home care when, as they contend, their relatives' care needs should have been provided for by the relevant health board.
Having conducted a preliminary examination of these complaints, the Ombudsman is satisfied that the complainants (and their relatives) have been adversely affected by the actions of the health board/HSE and that these actions may have been taken on the basis of one or more of the grounds identified at section 4(2)(b) of the Ombudsman Act 1980 (copy attached). Accordingly, the Ombudsman has decided to carry out an investigation of the complaints under section 4 of the Ombudsman Act 1980. The Ombudsman proposes to deal with the two complaints in the one investigation. I attach a Statement of Complaint for each of the cases.
In line with our normal investigation procedures, the Ombudsman invites the HSE to make a written submission in response to the Statements of Complaint. Any such submission should reach this Office by Thursday 9 February 2012. If the HSE chooses not to make a submission by that date, we will proceed with the investigation in the normal way.
Provision of Information and Documents
Case - while we have some documents provided by the HSE in the course of the preliminary examination, what we have seems incomplete. For the purposes of the investigation the Ombudsman requires the provision of all documents relating to Mrs. 's case held by the HSE to include:
· public health nurse records for the period prior to May 2002,
· Nursing Home Subvention file and Subvention appeal file,
· any records held by Disability Services in Tipperary,
· any records held otherwise from the former Community Care Area Office,
· any records arising from the HRS claim .
Case - to date we have not sought any specific documentation from the HSE in the case of . For the purposes of the investigation the Ombudsman requires the provision of all documents relating to Ms. 's case held by the HSE to include:
· records from the Hospital, Limerick (1996/1997) where Ms. (date of birth 17 July 1943) was under the care of Dr. , geriatrician,
· Nursing Home Subvention file and Subvention appeal file,
· any records held by Disability Services in Limerick,
· any records arising from the HRS claim
& Cases - it is known that the HSE (including its predecessor health boards) has had legal proceedings initiated against it by individuals (or those acting on their behalf) seeking redress for the expense incurred in having to avail of in-patient services in private facilities in circumstances where those individuals contend that the HSE (or one of its predecessor health boards) had a legal obligation to provide such services. It appears that the circumstances giving rise to these legal actions are to a considerable extent similar to the circumstances of the late Mrs and of Ms. . It is also known that, while none of these cases has yet gone to hearing and judgment in the High Court, some have been settled out of court with compensation being paid to the plaintiffs. It is relevant to the Ombudsman's investigation to establish whether people, in circumstances broadly similar to those of the late Mrs and of Ms. , have received some financial redress.
For the purposes of this investigation, therefore, the Ombudsman requires the provision to her of information on the terms on which these cases have been settled. This requirement may be met by the provision of copies of the settlement document in each case and, depending on the information contained therein, it may or may not be necessary to seek fuller information or documentation on these settlements. If it is the case that the settlements, or some of them, are covered by a confidentiality agreement, the Ombudsman will be happy to accept copies from which the plaintiffs' names and addresses have been redacted. In any event, the Ombudsman would not be identifying any of the plaintiffs in any report she publishes arising from this investigation.
Provision of all of this information and documentation is being required of the HSE in accordance with the statutory powers conferred on the Ombudsman under section 7 of the Ombudsman Act 1980 (copy attached). The documentation and information should be provided to the Ombudsman not later than Thursday 9 February 2012.
We may need to interview some HSE staff for the purposes of this investigation and, if so we will make the arrangements through the liaison officer, Mr Greg Price or any other HSE person designated as our contact person for the purposes of this investigation.
If you have any queries on the investigation, you are welcome to contact me at 01-6395650 (fintan_butler@ombudsman.gov.ie).
Yours sincerely
___________________
Fintan Butler
Senior Investigator
2. Response from HSE, dated 17th February 2012
HSE Vertical
Office of the Assistant National Director
Older Persons
Health Service Executive
Unit 7, Swords Business Campus
Balheary Road
Swords
Co Dublin
Tel: 01 8908714
Fax: 01 8908746
Email: hse.olderpersons@hse.ie
17th February 2012.
Your Ref HRS/08/1417 & HRS 10/0746R
Mr. Fintan Butler,
Senior Investigator,
Office of the Ombudsman,
18 Lower Leeson St.,
Dublin2
Re: Ms. and Mr.
Dear Mr. Butler,
I refer to your correspondence dated 18 January, 2012 in relation to the above complaints.
The additional information and files requested in your correspondence have been forwarded as requested. However, requests for information in relation to the legal proceedings initiated against the HSE/DoH, and any settlements arising as a result of ‘out of court’ settlements should be directed to the Department of Health, who may be in a position to assist in this matter.
The HSE has reviewed the files relating to the complaints and is of the opinion that it acted in accordance with its statutory obligations at all times in its dealings with the individuals concerned.
As stated in previous correspondence the Health (Repayment Scheme) Act 2006 was established ‘to provide for a scheme to repay Recoverable Health Charges', which are defined in the Act as:
"recoverable health charge " means that amount which has been paid of-
(a) a charge imposed on a person with full eligibility under the Health Charges for In-Patient Services) Regulations 1976 ( S.I. No. 180 of 1976 ), as in force at any time before 14 July 2005, including as so in force as amended by the Health (Charges for In-Patient Services) (Amendment)Regulations 1987 ( S.I. No. 300 of 1987 ), or
(b) a contribution, for in-patient services only, required of a person with full eligibility under the Institutional Assistance Regulations 1954 (S.I. No. 103 of 1954), as in force at any time on or after the commencement of the Regulations referred to in paragraph (a), including as so in force as amended by the Institutional Assistance Regulations 1965 (S.I. No. 177 of 965 )
As the monies paid by the complainants named above were not 'recoverable health charges' as defined in the Health (Repayment Scheme) Act, (the applicants in these cases were in private nursing home care so charges were not imposed under the defined Regulations in the Health (Repayment Scheme) Act), the HSE and scheme administrator were correct in refusing the applications for repayment of fees in these cases.
While not stated explicitly in your correspondence of 18th January 2012, it is implied and understood by the HSE, that the Office of the Ombudsman is now satisfied that the HSE was correct in the application of the Health Repayment Scheme in each of these cases. It is therefore in the context of this correct decision in relation to the Health Repayment Scheme that a subsequent complaint has been made in relation to eligibility for nursing home services.
Your correspondence of 18th January 2012 advises that the Ombudsman intends to carry out an investigation under Section 4 of the Ombudsman Act 1980. It is the considered view of the HSE that the Ombudsman has already carried out a full investigation and issued a report to the Dail and Seanad in relation to the issues raised in both of these complaints in the November 2010 report "Who Cares? - An investigation into the right to nursing home care in Ireland". Therefore, the Office of the Ombudsman has already expressed its considered view on the issues raised in these two cases.
The broader issue raised in these complaints, as to whether the complainants had a legal entitlement to long stay nursing home care has been the subject of previous correspondence between the HSE and the Office of the Ombudsman, the latest being the response issued on 26th January 2011, (from Mr. Noel Mulvihill to Ms. Emer Doyle, which issued following a meeting to discuss similar cases to those in this latest correspondence). This response re-iterates the view expressed by the HSE in the response to the "Who Cares? report that it is the considered opinion of the HSE that it has met its statutory obligation under Sect 52 of the Health Act 1970, the Health (Amendment) Act 1996 and the Health Act 2004, in that long stay care has been provided by the HSE within the limits of the resources made available to the HSE.
It is important to note that for the period from 1996 to 2004, the HSE/Health Boards were bound by the Health (Amendment) (No. 3) Act 1996 and subsequent to this the Health Act 2004. The Oireachtas annually votes the budget for the health service. The Vote requires that the Voteholder (i.e. the Minister for Health and Children when the health boards existed and now the CEO of the HSE) to live within the voted budget for the period in question. This means that funding for health services in the State are effectively resource capped.
While the HSE acknowledges that all persons, regardless of age, have the same eligibility to long stay care under Sect 52 of the Health Act 1970, this eligibility must be exercised within the resources made available to the HSE (Health Act 1996 and 2004).
The complaints in the cases under discussion refer to persons who were aged under 65 at the date they entered in to long stay residential care. The care needs of persons aged under 65 are recognised as differing from those of persons aged 65 and over. The totality of ‘Public’ long stay provision in the Health Board areas where the complainants lived at the time of their admission to long stay residential care was for persons aged 65 and over. This type of care was not deemed suitable to meet the needs of persons aged under 65. This view has been supported by the Health, Information and Quality Authority (HIQA), who have during inspections and at ‘registration’ stated that residential care facilities, primarily for the care of older persons, are not suitable placements for persons aged under 65.
As there was no specific ‘public’ bed availability for persons aged under 65 in the Health Board areas in which these individuals lived at the time of their admission, the Health Boards/HSE utilised the funding mechanism available to them which was subvention/enhanced subvention and ‘top up’ (within the resources available).
These decisions were made in 1996 in respect of the case, and 2002 in the case, in context of the budgetary situation that the respective Health Boards experienced at that time.
Ms. in her letter of complaint to your office, dated 1st July 2008 mentions letters enclosed with the letter of complaint, which, according to Ms. , stated that the SEHB would ‘look after everything’. The SEHB file on this case has been reviewed and does not contain any letters of this nature. I would be grateful if you could forward any letters submitted by Ms. with her original complaint for review and consideration. Such correspondence, if it were to exist, may lead to a review of the decision in this case.
Finally and as outlined in correspondence of 26th January 2011, given the strict limitations on current funding in the HSE, it is not possible to provide additional or backdated funding for the cases above, or the other cases discussed at meeting held on 12th January 2011 without adversely affecting current service provision.
I trust this response adequately addresses the issues raised in your correspondence.
Yours sincerely
3. Ombudsman’s Reply, dated 20 Febraury 2012
Our Reference : HRS/08/1417
20 February 2012
Mr Noel Mulvihill
Assistant National Director/ Older Persons Services
Health Service Executive
Unit 7
Swords Business Campus
Balheary Road
Swords
County Dublin
Dear Mr. Mulvihill
Re. Ms. and Mr.
I refer to the Ombudsman's investigation of complaints made by the above-named. Thank you for your letter of 17 February 2012 with the HSE's submission in relation to the complaints and with the relevant HSE documentation relating to the case. We have also received some relevant documentation from the HSE in the case.
In our letter of 18 January 2012 notifying your CEO of this investigation we required, amongst other things, the provision by the HSE of certain information regarding the settlement of High Court cases in which the HSE (including some predecessor health boards) was named as defendant and which concern an alleged failure to provide in-patient services to the plaintiffs. The HSE has failed to provide the required information and, in your recent letter, has suggested that the Ombudsman might contact the Department of Health in the matter.
I understand from a telephone conversation this afternoon with your colleague, Jim Murphy, that the HSE has in fact decided to refuse to provide the Ombudsman with the information required. I understand that the HSE has taken this decision in consultation with the Department of Health which is opposed to having the information provided to the Ombudsman. I understand the HSE is not prepared to provide the information in circumstances where the the Department, as co-defendants in these settled cases, is not agreeable to the HSE complying with the Ombudsman's requirement.
It is important to be clear that the Ombudsman has required (rather than requested) the provision by the HSE of the information specified in relation to the settlement of these High Court cases. As made clear in our letter to the CEO, the provision of this information is a statutory requirement on the HSE and arises under section 7 of the Ombudsman Act 1980 (a copy of which we enclosed). Section 7(3) of the Ombudsman Act provides that a "person shall not by act or omission obstruct or hinder the Ombudsman in the performance of his functions". It is not acceptable that the HSE should suggest that the Ombudsman would contact the Department of Health in order to acquire this information. The fact remains that the Ombudsman's statutory requirement is directed in this instance to the Health Service Executive.
We have already made it clear that the Ombudsman does not require to be given the names of the plaintiffs whose cases have been settled; furthermore, we have made it clear that in any possible use of the information, in any report to be published, the Ombudsman will not include any detail which might serve to identify any of the plaintiffs.
The position therefore is that the HSE has declined to provide the information in relation to these High Court cases and this has the consequence of obstructing and hindering the Ombudsman in the performance of her functions. In the event of the HSE maintaining this present position, the Ombudsman will have to consider all of her options in order to ensure her investigation can proceed unhindered.
I would be grateful if you would confirm that our understanding of the position, as outlined above, is correct.
Yours sincerely
___________________
Fintan Butler
Senior Investigator
4. HSE response dated 12th March 2012
Office of the Assistant National Director
Older Persons
Health Service Executive
Unit 7, Swords Business Campus
Balheary Road
Swords
Co Dublin
Tel: 01 8908714
Fax: 01 8908746
Email: hse.olderpersons@hse.ie
RE: HRS/08/1417
Mr. Fintan Butler
Senior Investigator
Office of the Ombudsman
18 Lower Leeson Street
Dublin 2
12th March 2012
Ms. and Mr.
Dear Mr. Butler,
I acknowledge with thanks safe receipt of your letter of the 20th February 2012.
Your letter seeks that the HSE provide certain information regarding the purported settlement of High Court cases in which the HSE (including some named predecessor Health Boards) was named as co-defendant.
I regret to advise that the HSE is not in a position to disclose the details of any
particular case or group of cases, as this may affect its, and/or the codefendants,
ability to conduct litigation. It is the view of the HSE, and the co-defendants in these cases, that the outcome of on-going litigation may be compromised if the detail of how previous litigation was conducted was disclosed.
Therefore the HSE is not in a position to comment on cases in which settlements may or may not have been made.
The HSE can, however, inform you that the Department of Health, on the advice of the Attorney General, has agreed to come on record for all State defendants including the HSE in relation to the defence of cases claiming repayment of long stay charges. As a result, the Department of Health is responsible for the overall management of this litigation. It is in this context that it was suggested that the Ombudsman might contact the Department of Health in this matter.
I hope that this clarifies matters for you.
Yours sincerely,
5. Ombudsman’s Letter of 13th April 2012
Our Reference : HRS/08/1417
April 2012
Mr Cathal Magee
Chief Executive Officer
Health Service Executive
Dr Steevens' Hospital
Dublin 8.
Dear Mr Magee
OMBUDSMAN INVESTIGATION
Ms. Co. Tipperary
Mr. Co. Limerick
I refer to my investigation under the Ombudsman Act 1980 of two complaints against the HSE from Ms. and Mr . My Office sent you a notification of this investigation on 18 January 2012. In the meantime, the investigation has been proceeding and the HSE has provided my Office with relevant file material relating to the specific cases of Mrs (the late mother of Ms. ) and of Ms. (the aunt of Mr ). I am writing to you today because of the refusal of the HSE to provide my Office with other information required to be provided by the HSE for the purposes of this investigation.
At the outset, I wish to put it on the record that I very much appreciate the very helpful manner in which you have engaged with my Office since your appointment as Chief Executive Officer of the Health Service Executive. The working relationship between our organisations has improved significantly because of the attitude you have adopted.
However, I am extremely disappointed that the HSE has now decided not to comply with a statutory requirement (which arises under section 7 of the Ombudsman Act 1980) to provide my Office with information sought for the purposes of this present investigation. The information sought - described in detail in our letter of 18 January 2012 - concerns the settlement of High Court cases in which the HSE (including some predecessor health boards) was named as defendant and which arise from an alleged failure to provide in-patient services to the plaintiffs. This information is of direct relevance to the present investigation. The HSE has told my Office that it is not complying with the requirement because to do so might compromise its ability, and that of its co-defendants, to conduct on-going litigation. I am satisfied that this does not constitute a valid basis for refusing to comply with the statutory requirement.
In any event, I cannot see how the disclosure of information about cases which have been settled out of court could have any bearing on the judgment of the Court should any of the pending cases ever come to a hearing in the High Court. The Court would, presumably, base its judgment on the legal merits of the individual case and is most unlikely to take account of the fact that similar cases have been settled out of court - even if it were possible to bring to the attention of the Court that similar cases had already been settled.
I must ask you, therefore, to re-consider the position being adopted by the HSE and to decide to comply with the statutory requirement first notified to the HSE on 18 January 2012. I would be very grateful to have your response by Wednesday, 25 April 2012.
Yours sincerely
___________________
Emily O'Reilly
Ombudsman
6. HSE CEO’s Response of 25th April 2012
HSE CEO’s Response.pdf (size 165.5 KB)
7. Further Clarification from HSE CEO dated 11th May 2012
Further Clarification from HSE CEO .pdf (size 152 KB)
8. Response of Ombudsman dated 22 May 2012
Our Reference : HRS/08/1417
May 2012
Mr Cathal Magee
Chief Executive Officer
Health Service Executive
Dr Steevens' Hospital
Dublin 8.
Dear Mr Magee
OMBUDSMAN INVESTIGATION
Ms. Co. Tipperary
Mr. Co. Limerick
Thank you for your letter of 11 May 2012. I cannot accept your conclusion, and that of your Board, that the HSE has "no obligation" under the Ombudsman Act 1980 to provide the particular information which I have sought for the purposes of my statutory investigation of complaints from the two complainants named above.
I note that in its initial refusal to comply with my statutory requirement to provide relevant information the HSE relied on the argument that the provision of this information might compromise its ability, and that of its co-defendants, to conduct on-going litigation. In your recent letter it appears that the HSE has resiled from this argument. The HSE is now refusing to comply with the statutory requirement because "as it appears the complaints are unrelated and unconnected to the settlements at issue there is no obligation under the Ombudsman's Act 1980 to provide this documentation and it would be inappropriate to do so". As you must know, this is not a credible position.
My powers to require the provision of information and documentation arise under section 7 of the Ombudsman Act 1980. Under section 7, I may require the provision of material which in my opinion is relevant to the particular investigation. In the present instance, I am quite clear that the information which the HSE is required to provide is very relevant to my investigation. I accept that, in forming an opinion as to whether information or documentation is relevant to an investigation, I must act reasonably and not arbitrarily. In the present instance, I believe any neutral observer would agree that the information sought is relevant to the investigation.
It is widely known that perhaps thirty or more sets of legal proceedings against the HSE (and other State parties), and which involve claims for compensation for the costs of in-patient services, have been settled out of court. It is known that these cases have been settled with some level of compensation having been paid to the plaintiffs. I understand that the circumstances of these plaintiffs are, in broad terms, quite similar to the circumstances of the two complainants whose cases I am now investigating. It is directly relevant to my investigation to establish the extent to which the HSE has compensated these plaintiffs and to establish the circumstances in which compensation has been paid. One line of enquiry in my investigation is to establish whether people in broadly similar circumstances are being treated differently depending on whether or not those people have initiated legal proceedings. If it were the case that such unequal treatment prevailed, I would be looking at whether the treatment of my two complainants reflected improper discrimination or was otherwise contrary to fair or sound administration. On the other hand, if the information sought did not support such findings, that would be the end of that line of enquiry. One way or the other, it is relevant to my investigation to be provided with information on the circumstances of the plaintiffs and on the terms on which their legal proceedings have been settled.
The position now is that the HSE is obstructing and hindering an Ombudsman investigation contrary to section 7(3) of the Ombudsman Act 1980 which states:
(3) "A person shall not by act or omission obstruct or hinder the Ombudsman in the performance of his functions or do any other thing which would, if the Ombudsman were a court having power to commit for contempt of court, be contempt of such court."
I intend to proceed with my investigation in the absence of the information which has been withheld. I will also consider how best to deal with the fact that the HSE has knowingly decided to obstruct and hinder my investigation.
Yours sincerely
___________________
Emily O'Reilly
Ombudsman