The Supreme Court has ruled that parts of the Health (Amendment) (No. 2) Bill 2004 were repugnant to the Constitution because they would have prevented patients from recovering certain unlawful charges for in-patient services. The Court found the Bill’s separate provisions for future charges compatible with the Constitution.
The decision followed a reference by the President under Article 26. The Court heard oral submissions on 24, 25 and 26 January 2005. Counsel assigned by the Court argued that provisions of the Bill were unconstitutional; the Attorney General argued that they were not.
The Bill would have required the Minister to make regulations charging for the maintenance element of in-patient services, subject to exemptions, a 30-day threshold and a weekly cap of 80% of the maximum old-age non-contributory pension. A health board chief executive could reduce or waive a charge to avoid undue financial hardship. The Court concluded these prospective provisions did not infringe the constitutional rights advanced in the reference and did not unlawfully delegate legislative power.
The Bill also sought to declare certain past charges lawful, including charges that the Court said had been imposed without lawful authority on people with full eligibility. The proposed validation would have applied to charges paid before enactment, except where recovery proceedings had been instituted by 14 December 2004. The Court said patients who paid unlawful charges were, subject to ordinary defences, entitled to seek recovery. That right of action was a property right protected by Articles 43 and 40.3.2 of the Constitution.
The Court rejected the State’s justification that extinguishing those claims was necessary to protect public finances. It said the estimated repayment liability was substantial but the evidence did not show it would cause an extreme financial crisis or fundamental disequilibrium in public finances. It also rejected the characterisation of recovery as a windfall: the patients had been entitled to the services without charge under the law then in force.
The Court’s formal Article 26 decision was limited to the provisions referred. It held that the retrospective provisions inserting subsections (5), (6) and (7), and subsection (11) insofar as it defined “relevant charge”, were repugnant to the Constitution, particularly Articles 43 and 40.3.2. The Court did not find the future charging provisions unconstitutional.