State 'unjustly enriched' by charges for care

The State was "unjustly enriched" by the unlawful charging of medical card holders for their long-term care in residential homes, it was argued in the Supreme Court yesterday.

The Supreme Court judges are considering the constitutionality of a Bill referred to them by the President, Mrs McAleese, after consultation with the Council of State.

It was argued yesterday that the the State was not now entitled to prevent legal actions to recover those monies on grounds that it was unfair and not in the interests of the common good to impose the multi-million euro costs of recovery on today's taxpayers. The charges violated important constitutional rights of our most vulnerable citizens, and the fact the remedying would involve expenditure by the State was not relevant.

A Bill aimed at retroactively making those charges lawful and prohibiting the bringing of an estimated large number of legal claims for repayment is being subjected to a test of its constitutionality before the seven-judge court. The court yesterday heard arguments by lawyers appointed to make the case against the constitutionality of the Health (Amendment) (No 2) Bill.

Mr Eoghan Fitzsimons SC, in arguments against the Bill, said it sought to prohibit the bringing, after December 14th, 2004, of legal actions to recover monies unlawfully paid by medical card holders for in-patient services.

His side argued the State was unjustly enriched, through those payments, at the expense of many potential plaintiffs. The right to recover the monies was a property right under Article 40.1 of the Constitution.

Counsel said the Oireachtas could not abolish a cause of action under the Constitution. The Oireachtas was also not entitled - without at least providing proper compensation - to retrospectively abolish a cause of action that was at all times during the period of retrospection a property right under Article 40.3.

Even if not viewed as a property right, the right to litigate was clearly a personal right which could only be impaired in the interests of the common good and in accordance with the test of proportionality, he argued.

If the Bill were passed into law, many persons would have their right to litigate abolished entirely regarding claims for the recovery of charges imposed up to December 14th, 2004. The abolition of that right was riddled with invidious, arbitrary distinctions.

Mr Fitzsimons noted that the European Court of Human Rights had generally found that retrospective interference with the right to litigate could only be justified on compelling public interest grounds which, it was argued, did not usually include financial considerations.

It was argued the Bill discriminated between citizens in that it allowed for different treatment of those who had paid charges and those who had not.

Those who had not paid up to December 2004 would not be required to pay and were placed in a privileged position. The Bill provided no compensation for and sought to prevent legal action by those who had paid and and also interfered with pending proceedings before the courts.