The High Court has set out declarations on when eligible patients may be treated as private in-patients at public hospitals and charged under the Health Act 1970. In a follow-up judgment on 6 July 2022, Mr Justice Denis McDonald also ordered the Health Service Executive (HSE) to pay Laya Healthcare Limited one-third of its costs, subject to specified exclusions and a four-day hearing basis.
The case concerned section 52(3), which can remove an eligible patient’s entitlement to public in-patient services where the patient instead uses private services or gives up the public entitlement. The HSE had argued that choosing private treatment at any point made charges payable for the whole hospital “episode of care”. The court had rejected that interpretation in its November 2021 judgment, and the follow-up declarations provide the terms of the resulting order.
The court declared that an eligible person avails of private in-patient services when the person uses those services and, of their own volition, decides to be treated as a private patient. It also declared that a patient waives the right to public treatment by giving up that right after being informed of the entitlement to treatment as a public or private patient. Where hospital staff ask an eligible person to consider private or public admission, the person should be told about the statutory entitlement and the consequences of giving it up.
A decision to be treated privately need not be written and may be communicated orally. The court said written, signed evidence would make sense for good administration. If the decision is made at a public or voluntary hospital’s request, it must be fully informed as to its meaning and effect.
The declarations confirm that choosing private treatment during a stay does not, by itself, make the patient ineligible for public services for the earlier period. A short interval between admission and communicating or recording the decision may be treated as private care where it can be explained by the difficulties identified in the November judgment. The follow-up judgment does not set a fixed grace-period length or decide individual patients’ eligibility.
The court also declared that charges under section 55 are levied against the patient, not the insurer. It made a separate declaration that eligible people could waive their eligibility, and the relevant daily charges could be applied, from 1 January 2014, including during the period before 1 January 2017.
On costs, the judge found both the HSE and Laya partly successful, with Laya succeeding on a greater share of the issues. Laya was awarded one-third of its party-and-party costs, calculated on a four-day hearing basis and excluding costs linked to most witnesses and to the hearings on the form of relief and costs. It was also awarded all costs of addressing the HSE’s claim that Laya itself was liable for patients’ hospital charges, a claim the judge said should never have been advanced. Costs are to be adjudicated if the parties cannot agree them.
The parties were directed to agree the order incorporating the declarations and costs ruling and submit it electronically to the registrar. They may apply to the court if they disagree about its form.