Families are leaving elderly relatives in hospital beds rather than sending them to a nursing home in order to protect their inheritance, claims the HSE’s senior legal adviser.

In some cases, according to HSE head of legal services Eunice O’Raw, the wider family wants to avoid having the patient’s assets used to fund a nursing home place through the Fair Deal scheme.

In addition, many farming families keep relatives in hospital in order to avoid financial penalties, she told HSE director general Tony O’Brien in an email last May.

Farming families incur penalties in the next generation if the farm has not been managed by that generation for more than two years. “Keeping the first generation in a hospital bed away from the farm avoids these penalties,” she said.

In a separate email, Ms O’Raw referred to a woman in her 40s who has stayed in a private hospital bed in the public system for the past four years without paying. The woman no longer needed hospital services, she said.

Leaked memo

Last November, the HSE was criticised after the leaking of a memo by Ms O’Raw advising staff how to remove “trespassing” patients who refuse to give up their beds.

The memo, which suggested nurses use “minimum force” to remove such patients, was withdrawn after being heavily criticised by Minister for Health Simon Harris, among others. Mr O’Brien apologised for any concern caused, but insisted the legal advice the memo contained did not reflect general policy.

At the time, Mr O’Brien said it was “very rare” for patients to refuse to move out of a hospital bed.

However, according to new documents sought under Freedom of Information following the November controversy, Ms O’Raw said she had received “very many queries” from hospitals on dealing with such issues.

In the Midlands, she noted, the HSE makes a significant number of applications for wardship for patients who are in beds they no longer require. “The same pattern is not evident to the same extent elsewhere.”

The legal opinion obtained by the HSE was that those who refuse to leave hospital beds they no longer need “are committing a trespass and steps may be taken to have them moved on”.

Ms O’Raw also invoked Article 40.3.2 of the Constitution, saying there was a potential conflict between a well patient occupying a bed and the constitutional right to life of another patient. “If there is a conflict between the medical needs of other patients that are identifiable as urgent, the overstaying patient would have to be moved in order to vindicate the rights of the acutely ill person.”