HSE cannot make patients liable until they state wish to be treated privately, court finds

Laya said it received complaints from policyholders of being pressured by hospitals to sign waiver

Once a patient does state a wish to be treated as private, charges can be imposed from the date of admission, judgesaid. Photograph: iStock

Once a patient does state a wish to be treated as private, charges can be imposed from the date of admission, judgesaid. Photograph: iStock

 

The Health Service Executive cannot make hospital patients liable to pay private accommodation costs before they formally state whether they wish to be treated as private or public patients, the High Court has found.

However, Mr Justice Denis McDonald said that, once a patient does state a wish to be treated as private, charges can be imposed from the date of admission.

The judge was giving his decision in a case brought by the HSE against Laya Healthcare for a determination on the provisions of the Health Act 1970 (as later amended) relating to the charges.

In its action seeking a declaration on the proper interpretation of the law relating to the charges, the HSE estimated around €170 million was the potential exposure to loss by public hospitals since the introduction of a disputed waiver form which asks privately insured patients to give up their right to be treated as public patients.

The main effect of this was that the insurer must pay the actual bed cost for a patient in the public system, which is around 10 times what used to be charged.

Laya denied the claims and said it has received hundreds, if not thousands, of complaints from its policyholders of being pressured by the hospitals to sign the waiver. Irish Life Health, which was joined as a notice party, supported Laya’s position.

The HSE maintained the Health Act allows it to charge patients as private patients where there is an election to be treated as private for the entirety of their hospital stay.

Mr Justice McDonald noted significant consequences flowed from a decision by an in-patient at a public hospital to opt to be treated as a private patient notwithstanding that the patient was entitled to be treated as a public patient. A patient who so opts is deemed not to be eligible to be treated and therefore becomes liable for the charges, he said.

Insofar as the relevant part of the 1970 Act (Section 52.3) is concerned, the concept of availing (of the option) involves a conscious decision of the patient, he said. It seemed to him that, at least in the period after this law came into operation, this concept primarily covered patients who actively sought to be treated privately.

“Such patients are not, in any real sense, giving up anything. They are not forgoing the entitlement to be treated as public patients because they have no desire to be so treated.

“It would therefore be wrong to describe them as having waived their right to be treated on a public basis”, he said.

The judge said he had reached the conclusion that a waiver was more relevant in the context of those patients who are initially minded to be treated on a public basis but who, following a request by a hospital to consider whether they wish to be treated publicly or privately, agree to forego or give up the right to be treated as public patients.

He also said while there was nothing in the relevant Act requiring waivers to be in writing, it seemed a matter of good administration that they should.

He was also of the opinion that, in cases where a hospital asks eligible patients to consider whether they wish to be admitted on a public or a private basis, they should be informed of their statutory entitlement (to public treatment) and the consequences that flow from foregoing it.

For that reason, a private insurance patient (PIP) form, which has been used in public hospitals, served a very useful purpose both as a means of conveying the necessary information to the patient and as evidence that the patient has reached an informed decision, he said.

It seemed to the judge that section 55(1)(a) of the 1970 Act envisaged waivers of eligibility even in the period between January 2014 and January 2017, when the relevant part of a 2013 amendment to the 1970 Act became operative.

He did not believe the HSE was entitled to levy charges in relation to the period prior to a patient’s decision to be treated privately.

However, he also did not believe that a small interval between the date of admission and the date of a patient’s decision to avail of private or public care necessarily prevented the HSE from levying charges where the interval can be explained by certain difficulties. These included, for instance, where, due to a patient’s condition on admission, he or she was unable to signify an intention one way or the other, he said.

It would be wrong to conclude, he said, that charges are not payable for the entire hospital stay in cases where a patient, on admission, orally indicates an intention to be treated as a private in-patient but, for one reason or another, there is a period of days before a written document is put in place signed by the patient.

Where the decision has been conveyed orally on the date of admission, charges can be imposed from the date of admission, he said.