Address by Dr.Fergus O’Ferrall, Adelaide Lecturer in Health Policy, Trinity
College, Dublin to Amnesty International Seminar “Guaranteeing the universal
in universal healthcare- delivering on the right to health in Ireland” on 19
January, 2012.
Fundamental Right to Access Healthcare needs to be enshrined in a new
National Healthcare Act.
The current Irish healthcare system is replete with discriminatory practices which
amount to abuses for the rights of Irish citizens. The initiative taken by Amnesty to
lead a campaign to put in place a legal guarantee in regard to equal access to quality
health care in Ireland is therefore both timely and vitally important. The publication of
Healthcare Guaranteed? The Right to Health in Ireland by Amnesty in June 2011
marks a seminal moment in the long struggle to build in Ireland a ‘real Republic’, to
use President Higgins’s phrase. As Amnesty points out “there is no right to health in
Irish Constitutional or statutory provision.” I wish to address the urgent case for a new
major National Healthcare Act which will enshrine a right to health. This right needs
to be supported by an explicit statutory expression of the values of social solidarity
and equal citizenship. We need a fundamental statute to provide clarity about the core
principles which will govern the Irish healthcare system for the future. I believe such
an Act would be the most fitting way to commemorate our State’s centennial
commemorations of independence in the decade ahead. The review of the 1937
Constitution, due this year, is a further opportunity to include a right to health in a
new or amended Constitution: the right to primary education is so expressed currently
and surely health is even more fundamentally important to citizens.
The Current Context
Many of the abuses in our healthcare system have been matters of public notoriety:
the brave public stance of the late Suzy Long in 2007- who lost her right to life having
suffered discrimination as a public patient in terms of delayed diagnosis- is but one
example among many cases which bring shame on the Irish Republic. The
Ombudsman, Ms Emily O’Reilly- who deals on a daily basis with complaints from
citizens who have poor experiences of the health services- has had a long and highly
frustrating battle with the HSE and the Department of Health when seeking remedies
for cases which have been brought to her attention.
In summary the Irish healthcare system as it currently operates is:
 Unfair to public patients
 Rationing care with unacceptable waiting lists especially for poorer citizens
 Inefficient in relating health outcomes to the financial resources provided
 Perverse in how it incentivises providers of care to discriminate in favour of
the better off
 Poor value for those who pay supplemental private health insurance
 Unique in setting payment barriers for so many in accessing primary care.
These aspects of our dysfunctional health system have been analysed in great detail in
a range of expert reports including the Report of the Expert Group on Resource
Allocation and Financing in the Health Sector (DOHC, July 2010). They have been
documented for a number of decades in various reports. There has been an almost
total failure to implement policy proposals to remedy them. Ten years after the Health
Strategy- Quality & Fairness A Health System for You the two-tier healthcare system
is still intact and the lack of clarity in respect of citizen entitlements to a range of
essential health services is still as evident as it was in 2001 when the Strategy was
launched. The Health Strategy in 2001 had as a key goal ‘Fair Access’ and a number
one objective that ‘eligibility for health and personal social services’ would ‘be
clearly defined’. Health expenditure in Ireland rose dramatically until 2009 and now
we are in a prolonged period of health cut-backs which will last about a decade. The
point to note, however, is that the current cut-backs are not the main reason for the
gross inequities in our system of healthcare for these were perpetrated in the years
when public expenditure was growing in regard to health.
Putting Citizens at the Centre
The key reason, I believe, why we continue to discriminate so unfairly against our less
well-off citizens has to do with the impoverished sense of citizenship which pervades
public life and the governance and design of our public services: our public
administration has not been ‘republicanised’ as President Michael D.Higgins
appositely observed in his farewell address to Dail Eireann in January 2011. In a ‘real
Republic’ citizens would be treated equally in such a key domain of living as is
healthcare. Furthermore, there would be a far greater degree of public and patient
involvement in the design, governance and delivery of all healthcare services.
Elsewhere I have written about the ‘erosion of citizenship’ in the Irish Republic and,
in particular how this has occurred in regard to what has been hailed as ‘healthcare
reform’. [ see, F.O’Ferrall, ‘The Erosion of Citizenship in the Irish Republic: The
Case of Healthcare Reform’, The Irish Review, Winter, 2009, no.40-41, pp155-170]
If we had an appropriate sense of equal citizenship we would not tolerate the
domination of bureaucrats in the lives of our citizens in the way that we now do. The
areas of discretion, for example, which exist for bureaucrats and/or clientalist
politicians to intervene or decide, who obtains a medical or GP card or who may
benefit from a range of schemes- for example the Motorised Transport Grant Scheme
paid to certain people with disabilities- leaves our citizens open to arbitrary and
discriminatory decisions by those with the power to decide for or against the
supplicant. Such supplicants include those with low functional literacy or those who
lack the perseverance (perhaps due to ill-health or other circumstances) to try to
secure their entitlements. It has been pointed out, by the Ombudsman and others ( in
at least two editorials in The Irish Times recently) that schemes are now being
curtailed surreptitiously – such as dental care for medical card holders, home help
services, and the payment of subsidies under the Nursing Home Support Scheme.
Dr.Muiris Houston has rightly stated that “there needs to be complete transparency
about where cuts are being made.” (see ‘Time to stop keeping us in the dark over
health cuts’, The Irish Times, 16 December 2011). The Ombudsman, noting these
major concerns for citizens in terms of proper access to health services, has correctly
identified the defects in the accountability mechanisms within our public health
services in her important Doolin Memorial Lecture on 3 December. 2011.
Page 2.
Nursing Home Care – A Case Study
There is not time, in this short address, to describe the true extent of the awfulness of
the way in which our health services are administered. It is more valuable to point to a
better way to ensure that citizens are put at the centre under a new National
Healthcare Act. However, those who doubt what I say should take time to read the
Ombudsman’s Report Who Cares? An Investigation into the Right to Nursing
Home Care in Ireland, published in November 2010 as a case study. This is a truly
shocking indictment of political and public administration of a key legislated
entitlement over successive decades from the 1970 Health Act up to the present time.
It succeeds other damning reports, such as the Travers Reports of March and June
2005, which one would have thought would have led to prompt and rapid action and
changed the adversarial and anti-citizen culture which pervades the record of health
administration to-date. The Travers Report established unequivocably that for decades
the Department and the health boards maintained arrangements for charging medical
card holders for long-stay care in circumstances in which they were well aware that
these arrangements were illegal: over 300,000 illegal charges over 28 years is the
scale of this particular disaster. Yet the Ombudsman tells us that “fundamental
questions remain about the role of the State and the rights of the public in this area”;
there are more than 300 cases before the High Court in which people are seeking
compensation for the costs incurred in having to avail of private nursing home care
which should have been provided by the HSE. Indeed it gets worse: the conduct of the
Ombudsman’s investigation “was hindered by the refusal of the Department of Health
and Children and of the HSE to provide the information and documentation” required
by our statutory officer whose role is to vindicate citizen entitlements- that is the
Ombudsman!
Clarity is essential in regard to access to health services
Given the policy and principles for health reform now set out in the Government’s
Programme for National Recovery, approved in the Oireachtas in March, 2011 – for
the first time there is a commitment to developing a single-tiered health service,
which will guarantee access to medical care based on need, not income- I believe that
a new major National Healthcare Act is required in which the rights and duties of all
citizens and healthcare providers will be set out clearly and definitively. Clarity is
absolutely essential given the ‘track record’ of Irish public administration in
healthcare. The past and current performance owes more to nineteenth century poor
law concepts of ‘deserving’ and ‘undeserving’ poor than to the standards that ought to
prevail in a twenty-first century Republic as we approach the centenary of the
Proclamation of the Republic in which the Republic is to guarantee “equal rights and
equal opportunities to all its citizens”. Other jurisdictions have underpinned their
health systems such an Act for example, the Canada Health Act, 1984. In the United
Kingdom, for the first time, with the publication of the NHS Constitution in 2009subsequently updated in 2010, the government established a set a rights for patients,
the public and staff with respect to NHS. The UK approach may have limitations but
it is very advanced compared with Ireland.
Page 3.
The Canada Health Act, 1984.
It is valuable to reflect briefly on the Canada Health Act, 1984, in this context of
enshrining rights to healthcare. Monique Bẻgin, the Minister for Health in Canada
who introduced the 1984 Act stated in 2002 that the Canada Health Act “certainly
played an important role in rooting our public, universal health insurance system in
the Canadian psyche. Medicare became deeply entrenched in our national identity.”
[see M. Begin, Revisiting the Canada Health Act(1984): what are the impediments to
change? Paper to The Institute for Research on Public Policy, Ottawa, 20 February,
2002.] It has been recognised that the Canada Health Act, 1984, symbolizes the values
that represent Canada- that it articulates a social contract that defines healthcare as a
basic right. However at the time it was bitterly contested and the Minister endured
unprecedented personal attacks especially from some provincial ministers of health.
Here is one lesson for us now in Ireland – securing the right to health for all demands
political and public will-power and leadership to confront vested interests. Amnesty
and other advocates including politicians will be vilified and attacked in this
campaign to establish the right of each citizen to access care equitably when needed.
It is useful to note that in 2008 the journal of the Canadian Medical Association
observed that the 1984 Act is “a venerable and enshrined piece of legislation and a
repository of national values- a kind of Canadian Ark of the Covenant that no federal
political party or provincial government dared question.” [see Canadian Health
January/February 2008 p.44]. In years to come we too will wonder why it took us so
long to establish a civilised standard of care for all residents.
Simply put, the Canada Health Act, 1984 specifies the conditions and criteria which
govern the provincial and territorial health insurance programmes under which they
receive federal transfer payments. Significant for our context, the Preamble to the Act
states that the objective of Canadian health care policy is to provide “continued access
to quality health care without financial or other barriers” and that this “will be critical
to maintaining and improving the health and well-being of Canadians.” The primary
objective of the Act is “to protect and promote and restore the physical and mental
well-being of residents of Canada and to facilitate reasonable access to health services
without financial or other barriers.” (Section 3.) The Act sets out five criteria that
provincial health plans are obliged to meet – the so-called five pillars outlined in
sections 8 to 12 of the legislation. In brief these are:
1. ‘Public Administration’: the health plan must be operated on a non-profit basis
by a public authority responsible to provincial government
2. ‘Comprehensiveness’ : the health plan must provide coverage of all insured (
i.e., medically necessary) hospital and physician services, as well as defined
services from other healthcare professionals
3. ‘Universality’: all insured residents of a province or territory must be entitled
to the insured health services on a uniform basis.
4. ‘Portability’: this ensures that moving to another province does not change
cover until coverage in new jurisdiction is engaged as well as temporary
periods abroad
5. ‘Accessibility’: all insured residents of a province or territory will have
reasonable access to insured health services, unimpeded by user fees, extra
billing or other factors such as age, health status or financial circumstances
Page4.
We need to reflect on the ‘core principles’ or ‘pillars’ around which we will determine
the right to healthcare in Ireland and , in particular, the values which must underpin
such ‘pillars’ in respect of equity and social solidarity. As Professor William Hsiao,
the renowned Harvard health economist has reminded us:
“Your ethics, your sense of justice, determine how you distribute goods and services,
including healthcare- so the first question [ when reforming health] has to deal with a
country’s ethical values” [ quoted in Universal Health Insurance: The Way
Forward for Irish Healthcare Policy Paper by The Adelaide Hospital Society, April,
2010, p.2.]
In this regard it will be important to build upon the statement in the Government
Programme:
“The Universal Health Insurance system will be designed according to the European
principle of social solidarity: access will be according to need and payment will be
according to ability to pay. The principle of social solidarity will underpin all relevant
legislation.”
Roy Romanow, the Canadian head of the 2002 Royal Commission on the Future of
Health Care in Canada, noted that the principles in the Canada Health Act, 1984
“have stood the test of time and continue to reflect the values of Canadians”. Indeed it
has been remarked that “so ingrained in the Canadian psyche have the Act’s
principles become that even supporters of coverage for more comprehensive health
services not included in the Act- such as in-home care and a national drug plan- don’t
want to see the Act itself touched.” [Canadian Health, January/February, 2008, p.45)
I am not suggesting that we simply copy the model of Federal Canada in proposing a
fundamental new National Healthcare Act. However, there is much to learn from
countries which have made explicit the content of the right to health in their particular
circumstances. For example, the Canada Health Act requires an Annual Report on
how it is operating – this is a good discipline that might be applied to a reformed
public health administration in Ireland – a Report against clear statutory entitlements
in a universal insurance system. We might learn from Canada also that a public nonprofit financial system works well with non-state or voluntary non-profit providers of
healthcare. We will in our new Act need to take more account of an integrated
delivery model of care than was possible in Canada in the 1980s when hospital
provision was more dominant than it ought to be in properly functioning system. We
will have to make immediate choices as to what services are to be guaranteed between
home care services, chronic care, rehabilitation, mental health services and health
promotion and disease prevention. Obviously in a progressive system the new Act
will allow for expansion of the guaranteed ‘basket of services’ over the coming
decades as economic circumstances and the evidence of costs and benefits allow and
as public confidence grows in the new framework created by the Act. The Adelaide
Hospital Society’s proposal for an initial ‘basket’ of guaranteed services to include
primary care and medicines and acute hospital care and treatment would seem the
very minimum in the first phase of the establishment of the right of all residents to
healthcare. [see, Adelaide Hospital Society, Universal Health Insurance: The Way
Forward for Irish Healthcare, Policy Paper, April, 2010]
Despite the bitter arguments that health reform generates – as it did in Canada also – it
is worth noting that the Canada Health Act was one of the few pieces of legislation
ever pass unanimously.
Page 5.
Is it too much to hope that we could build a consensus in the Oireachtas on the
fundamental right of every Irish resident and citizen to access appropriate care on the
basis of medical need without financial barriers? The Canada Health Act defines all
medically necessary services broadly to include such services as are “for the purpose
of maintaining health, preventing disease, or diagnosing or treating injury, illness or
disability.” It a key aspect of Canada health system that a patient’s ability to pay will
not get faster access to insured healthcare services: everyone must be treated fairly
and equally on the basis of medical need alone. This is vital to underpin equal
citizenship and the dignity and value of each person.
Conclusion
Martin Luther King, Jr., stated at the National Convention of the Medical Committee
for Human Rights in Chicago on 26th March 1966:
“Of all the forms of inequality, injustice in healthcare is the most shocking and
inhumane.”
The Government and people of Ireland are facing historic and grim challenges at
present. However a time of crisis is the time to set out the vision and values that ought
to underpin a new foundation of our politics and public services.
That the Government is proposing major change in how we pay for healthcare in the
middle of a grave national crisis shows how badly we need reform. There are 27 other
countries with successful variations of social insurance funding for their health
systems, so there is no reason why Ireland cannot have such a system adapted to Irish
conditions. But we have to learn from their mistakes to ensure our reform is effective
– we have no margin for error when the country’s finances are in such dire straits.
It is now time that Irish law embeds the principle of universal access to healthcare and
that our governments and public services will in future be held accountable to the
people for maintaining this basic human right.
Ends
Dr Fergus O’Ferrall is Adelaide Lecturer in Health Policy, Department of Public
Health & Primary Care, Trinity College, Dublin. He is author of Citizenship &
Public Service The Relationship Between Voluntary and Statutory Organisations
in Irish Healthcare published in 2000 and has co-edited a book on medical ethics.
He has recently written articles including ‘The Reform Challenges in Irish
Healthcare’, Studies An Irish Quarterly, Vol.100, No.398, Summer, 2011; and
‘Public Participation: Involving Citizens in Designing Public Services’ in Working
Notes Facts and Analysis of Social and Economic Issues, Issue 67, September,
2011. Dr. O’Ferrall is a member of a number of boards including the Board of The
Irish Times Trust and the Board of IPPOSI the Irish Platform for Patients’
Organistions, Science and Industry. He is a member of the Advisory Council of
TASC – the progressive think-tank and was a member of the Advisory Group which
produced the Eliminating Health Inequalities A Matter of Life and Death Report
published by TASC in June 2011. He has also edited a series of essays on The
Flourishing Society shortly to be published by TASC.