Planned charges do not infringe on rights

The ruling - future charges: A proposed new law providing for the future imposition of charges on mainly elderly people for long-term residential care, including charges on medical card holders, cannot be considered an infringement of any constitutional right, the Supreme Court has found.

The court was upholding the constitutionality of the "future charging" provisions of the Health Amendment No 2 2004 Bill, passed by the Oireachtas last December to amend Section 53 of the Health Act, 1970.

Section 53 provided that charges might be imposed on persons, excluding medical card holders, who availed of long-term residential care. The prospective provisions of the 2004 Bill provide for the Minister for Health to make regulations for the imposition, in certain circumstances, of charges for in-patient services relating to the maintenance of a person in a home or hospital by a health board.

It provides such charges may be imposed on medical card holders and sets the maximum level of the charges at 80 per cent of the weekly rate of the old-age (non-contributory) pension.

The Bill also gives the CEO of a health board discretion to reduce or waive a charge payable under such regulations where the full imposition of the charge would give rise to undue hardship in an individual case.

In upholding the constitutionality of those provisions, the Supreme Court said the Oireachtas had been careful to insert into the Bill a cap on the maximum charge which the Minister could impose. In doing so, it was clear the Oireachtas sought to avoid causing undue hardship to those who avail of in-patient services.

The Chief Justice, Mr Justice Murray, said it could, no doubt, be asserted that the State could or should have been more generous, or less so with regard to persons of significant means. However, that was the kind of debate that lay classically within the political arena and was not a matter of law.

What the court was concerned with was whether the charges would restrict access to the services by persons of limited means in such a way as to infringe or deny their rights.

In addressing that issue, the court had also to take into account that persons who availed of in-patient services involving maintenance would otherwise have had to maintain themselves out of their own means when living outside health board care.

There was nothing before the court, the Chief Justice said, from which it could conclude that the capping of the charge at 80 per cent of the OAP would generally cause undue hardship, or be an undue denial of access to the services in question.

Accordingly, the court concluded that a requirement to pay charges of the nature provided for in the Bill did not infringe constitutional rights. The imposition of the charges by the Minister would be no more than the implementation of the principles contained in the Health Act, 1970, and the power delegated to make regulations was compatible with the Constitution.

Mr Justice Murray noted it had been argued that the State had a constitutional obligation to provide at least basic in-patient facilities. The court did not consider it could be an inherent characteristic of any right to such in-patent services that they be provided free, regardless of means.