The Supreme Court has allowed an appeal by the Voluntary Health Insurance Board (VHI) and restored it as a notice party in BUPA’s judicial review challenge to Ireland’s Risk Equalisation Scheme for private health insurance.
The judgment, delivered by Kearns J on 2 December 2005, overturns a High Court order that the proceedings continue without VHI. The Supreme Court held that VHI had a direct and substantial interest in the case and that its continued presence was necessary to enable the court to deal fully with the issues.
BUPA Ireland Limited and BUPA Insurance Limited are challenging provisions of the Health Insurance Act 1994 and the Scheme. Their pleaded grounds include claims that the legislation delegates law-making power improperly, imposes charges contrary to constitutional requirements, interferes with property and business rights, and breaches European Union rules on insurance and competition. Those are BUPA’s claims; the Supreme Court did not determine them in this appeal.
The Scheme is designed to compensate insurers whose members present higher health costs, using payments from insurers with lower-cost risk profiles. It is intended to support community rating, under which premiums are not set according to each person’s health risk. The judgment said the Scheme was not then operating. The Minister had declined an earlier Health Insurance Authority (HIA) recommendation to start payments, but the HIA made a further recommendation in October 2005. The court noted that most payments, if ordered, would go to VHI.
VHI argued that the challenge and evidence directly concerned its position and conduct in the market, and that it would be uniquely affected if the legislation and Scheme were struck down. BUPA had argued in the High Court that VHI’s participation was no longer appropriate after the earlier recommendation was rejected. The High Court agreed, reasoning that the State could defend the legislation without VHI’s participation.
The Supreme Court found that the case remained a judicial review and that VHI was directly affected. It also pointed to allegations about VHI’s market position and evidence concerning competition and risk selection, matters it said would be central to the High Court hearing. It concluded that VHI’s participation was necessary for the court to adjudicate fully.
The order decides only VHI’s participation in the proceedings. It does not resolve BUPA’s legal challenges or determine whether the Scheme may be implemented.