Bill on nursing home charges unlawful

The ruling - summary: The Supreme Court has held that a Bill which sought to make lawful the unlawful practice over 30 years of charging elderly medical card holders for long-term residential care is unconstitutional.

Although the court found that other provisions for the future charging of patients for such care were constitutional, the entire Bill falls because of the findings on the retrospective provisions.

The seven-judge court yesterday ruled that people who paid such unlawful charges or their descendants are entitled to recover monies, and declared that such recovery could not be properly characterised, as the State had argued, as "a windfall".

While the consequent financial burden on the State was substantial, it was "by no means clear" that it could be described as "catastrophic", the court said.

The right to recover the monies was a property right protected by the Constitution from unjust attack by the State, the Chief Justice, Mr Justice Murray, said.

The Constitution protected property rights of not just great but also modest value, especially where, as in this case, the persons affected were amongst "the more vulnerable" sections of society.

The State has suggested the number of potential claimants could be more than the total 30,000 claimants who are seeking compensation in Army deafness, hepatitis C and Residential Institutions Redress Board cases and the potential claims could amount to €500 million.

According to State figures, some €1.15 billion has been paid since 1976 in charges for maintenance in residential care.

That is about one-tenth of the €11 billion total cost of residential care provided by health boards for some 275,000 people, including medical card holders, in those 30 years.

Of the 275,000 who received care, most are dead. Of the €1.15 billion paid in charges, the State estimates most of that was unlawfully paid by medical card holders.

In an 88-page judgment yesterday, the Supreme Court ruled that the Health Amendment No 2 Bill, which was rushed through the Oireachtas last December after the Attorney General advised the imposition of the charges was unlawful, is unconstitutional.

The Bill was referred to the Supreme Court by the President on December 22nd last.

The Bill contained both prospective and retrospective provisions. The prospective provisions permitted charges to be imposed in the future for in-patient services, including charges on medical card holders.

The retrospective provisions were designed to make lawful the past practice of imposing such charges and to prevent the bringing, after December 14th, 2004, of any legal actions to recover monies paid.

Finding the prospective provisions constitutional, the Supreme Court held those provisions concerned matters for which the Oireachtas has power to legislate and that the power to regulate and impose such charges, which was delegated to the Minister in the Bill, was compatible with Article 15 of the Constitution.

It also found constitutional provisions allowing the imposition of a maximum level of charges and giving discretion in relation to what charges might be imposed in individual cases.

Dealing with the retrospective provisions, Mr Justice Murray said these abrogated the right of persons, otherwise entitled to do so, to recover monies for charges unlawfully imposed. The practice of imposing those charges was contrary to the express provisions of Section 53.1 of the Health Act, 1970, in which the Oireachtas had decreed the services in question should be provided without charge.