The State faced a "very serious financial crisis" following advice from the Attorney General last month that tens of thousands of elderly and infirm patients were unlawfully charged, over a period of some 30 years, for their maintenance in long-term residential care, the Supreme Court was told yesterday.
If the court found that a new Bill designed to fix that "mess" was unconstitutional, the number of potential litigants who could bring claims arising from the unlawful charging could be higher than the total 30,000 claimants who are seeking compensation in "Army deafness", Hepatitis C and Residential Institutions Redress Board cases, lawyers for the State claimed yesterday.
A hearing is underway at the seven-judge Supreme Court to determine the constitutionality of the Health (Amendment) (No 2) Bill, passed by the Oireachtas last month. On December 22nd last, having consulted with the Council of State, the President, Mrs McAleese, referred the Bill to the Supreme Court to test its constitutionality.
On behalf of the State, Mr Dermot Gleeson SC, said that the cost of meeting the claims could lead to a situation where monies in the health budget intended for the "currently sick" would instead be paid mainly to the descendants of those persons who had paid charges while in long term care but had since died.
He said that, since 1976, some €1.15 billion had been paid in charges for maintenance in residential care. Most of that was paid by medical card holders who were unlawfully charged.
Since then, the total cost of long-stay residential care provided by health boards to all patients, not just medical card holders, amounted to €11 billion, according to State figures. Some 275,000 people, most of whom are dead, had benefited from residential care during those years.
The State has no figures for how many of those 275,000 were medical card holders on whom charges were unlawfully imposed. The charges accounted for some 10 per cent of the cost of maintenance. Within the last six years alone, the total amount paid in maintenance charges was some €500 million, counsel said. This compared with the entire 2005 capital allocation for the health services of €586 million (from a budget of €11 billion).
Given those figures, Mr Gleeson argued that the introduction by the Minister for Health last December of the Health (Amendment) (No 2) Bill was a move by a "conscientious legislator" to achieve a "once-off solution" and to fix up a "mess" from the past.
There was no perfect solution and part of a TD's function was to remedy dysfunctions. What the Bill did was retrospectively alter the terms upon which a valuable benefit (residential care) was provided, he said. A benefit which was provided on the basis of being 100 per cent free was instead 90 per cent free, he said.
He disputed arguments that, where citizens could not physically fend for themselves, the State was obliged, as an extension of those citizens' constitutional right to life, to provide free care and minding to such persons. He said there was no constitutional basis for such arguments.
The allocation of State resources was critically a matter for the Oireachtas to decide and was essentially a legislative policy choice.
Ms Justice McGuinness queried whether it was appropriate for Mr Gleeson to raise "an appalling vista" scenario regarding the costs of meeting potential claims. She suggested the State could have addressed the situation it found itself in by having the Bill provide for the repayment to persons who were still alive of monies which were unlawfully deducted from their pensions.
She added that the court had no real evidence on the facts including how many affected persons were dead and living and how many were over the age of 70.
Ms Justice McGuinness, Mr Justice Geoghegan and Mr Justice McCracken also suggested to counsel that achieving redress for affected persons might not be as expensive or as complicated as the State believed.
Mr Justice McCracken remarked that the relatives of elderly persons who had had 80 per cent of their old age pensions deducted when in residential care may have had to contribute funds to the pensioner.
Mr Gleeson said his clients, as legislators, had not wanted this problem and did not make it. However, they were faced with it and, if the Bill fell, it would take "serious money" from the public purse to meet potential claims. His clients were guardians of the public purse and believed it should be devoted to the currently sick. The Minister for Health had said that €2,000 would be paid to some 20,000 affected individuals. Counsel accepted that was not provided for in the Bill.
Ms Justice McGuinness remarked that some of those people who unlawfully paid charges were still alive and were the "currently sick". She added that if the Bill was upheld, the State was capable of adopting a relatively simple formula to repay the monies. She also noted that the Bill was introduced in the Dáil on December 16th and passed on the 17th which was not indicative of substantial consideration by the Oireachtas. The hearing will continue today.
