Health Bill may leave State open to fraud actions

The health boards' practice of charging elderly and infirm persons for long-term care while at the same time not charging those who objected to deductions from their old-age pensions, was open to an inference that many persons were "conned" into paying the unlawful charges, the Chief Justice, Mr Justice Murray, said at the Supreme Court yesterday.

Mr Justice McCracken also said a Bill rushed through the Dáil last month to tackle the problems arising from the unlawful imposition of such charges over the past 30 years seemed to leave open the bringing of actions for fraud. This was particularly the case after 2001 when, despite the passing of a law granting the medical card to all those over 70, the charges continued to be imposed.

Actions of the boards could not prevent the State from enacting legislation to sort out the situation or from making a judgment that the interests of the common good were against providing for the full recovery of the charges paid, argued Mr Paul Gallagher SC, for the State.

The seven-judge Supreme Court is conducting a three-day hearing to determine the constitutionality of the Health (Amendment) (No 2) Bill which the President referred to the court on December 22nd after a meeting with the Council of State. The hearing concluded yesterday and judgment was reserved. The court must deliver its decision by February 22nd.

The Bill empowers the Oireachtas to make regulations providing for the imposition of charges for long stay in-patient services and provides such charges may be imposed on medical card holders. It also declares that charges which, the State accepts, were unlawfully imposed since 1976 on medical card holders for their maintenance in long-term care, are deemed lawful. It prohibits legal actions for recovery of the charges unless they were initiated by December 14th last.

Yesterday, Mr Gallagher concluded the State's arguments in favour of the Bill's constitutionality. The State contends the Oireachtas has power to enact legislation imposing charges for long-stay residential care and to enact curative legislation ratifying the imposition and payment of charges in the past.

The fact that the State was in the best position to have established earlier that health boards did not have the power to impose the charges did not in any way detract from the nature and extent of the Oireachtas's legislative power to enact such curative legislation, it argues.

The State contends the legislation is proportional and required by the common good. It says the public interest served by the Bill is that of avoiding "immense financial problems" by not seeking to turn back the hands of the financial clock. It also disputes claims that the Bill constitutes an unjust attack on property rights or interferes with the administration of justice by the courts.

Ms Justice McGuinness said there was a difficulty in quantifying the costs of potential claims should the Bill fall.

Mr Gallagher said that if the Bill fell, it would lead to windfalls for relatives of those who were unlawfully charged and this would take funds from the health budget and the burden would fall on today's taxpayer.

Mr Justice Fennelly asked how it could be regarded as a windfall when charges had been made and there was no entitlement to do that.

Mr Gallagher said it would be a windfall because there was no expectation by affected persons that they would get the money back. He accepted the patients in question should not have been charged but, he asked, who was to say how the health services might have developed if that money were not available. It was considered that people should make a fair contribution to the cost of their maintenance, he added.