Article 26 of the Constitution and the Health (Amendment) (No. 2) Bill 2004

Judgment Date16 February 2005
Date16 February 2005
CourtSupreme Court


Murray C.J.

Denham J.

McGuinness J.

Hardiman J.

Geoghegan J.

Fennelly J.

McCracken J.


Constitutional law - Bill - Validity - Retrospective effect - Bill seeking to legalise charges unlawfully levied on in-patients in past who had been exempted from same by Act of Oireachtas - Bill seeking to prevent persons so unlawfully charged from recovering same - Prospective effect - Bill also seeking to validate imposition of such charges into future - Whether provisions of Bill constitutional - Health (Amendment) (No. 2) Bill 2004 - Health Act 1970, section 53 - Bunreacht na hÉireann, Articles 40.3.2 and 43.

section 53 of the Health Act 1970 provides that:- "(1) Save as otherwise provided for under subsection (2) charges shall not be made for in-patient services..." Section 1(a) of the Health (Amendment) (No. 2) Bill 2004 purported to amend section 53 of the Act of 1970 so as to require the Minister to make regulations for the imposition of charges in certain circumstances for in-patient services in the future. The Bill also provided for the insertion of new subsections 5, 6, 7 and 11 of section 53, purporting to retrospectively legalise charges which had been unlawfully levied from exempted persons for such in-patient services and which the Oireachtas had previously decreed should have been provided free under section 53(1).

Held by the Supreme Court in holding that the retrospective provisions of the Bill of 2004 constituted an abrogation of property rights and an unjust attack on them contrary to the Articles 43 and 40.3.2 of the Constitution:

1. That substantial encroachment on property rights without compensation would rarely be justified. Moreover, the property of persons of limited means was deserving of particular protection, since any abridgement of the rights of such persons would normally be proportionately more severe in its effects.

2. That patients upon whom charges for in-patient services were unlawfully imposed from and after 1976 and who paid those charges were entitled to recover those charges as they had a property right consisting of a right of action to recover the monies.

3. That where a statutory measure abrogated a property right and the State sought to justify it by reference to the interests of the common good or those of general public policy involving matters of finance alone, such a measure, if capable of justification, could only be justified as an objective imperative for the purpose of avoiding an extreme financial crisis or a fundamental disequilibria in public finances.

4. That the right of patients to receive the relevant services on the express legal basis that they were free of charge persisted so long as section 53(1) of the Act of 1970 remained unchanged and was a property right which devolved on the estates of deceased persons.

5. However, the prospective provisions in the Bill requiring persons to pay charges into the future could not be considered as an infringement of the personal rights of citizens.


DECISION of the Court pronounced on the 16th day of February, 2005, by Murray C.J.


This is the decision of the Supreme Court on the reference to it by the President of the Health (Amendment) (No. 2) Bill, 2004, pronounced pursuant to Article 26.2.1º of the Constitution.


The Reference


By order given under her hand and seal on the 22nd December, 2004, the President, after consultation with the Council of State, referred, in pursuance of the provisions of Article 26 of the Constitution, the said Bill to the Supreme Court for a decision on the question as to whether any provision of the Bill is repugnant to the Constitution or any provision thereof.


Proceedings on the Reference


Counsel were assigned by the Court to present arguments on the question referred to the Court by the President. Prior to the oral hearing counsel assigned by the Court presented written submissions to the Court, including submissions that certain provisions of the Bill were repugnant to the Constitution. Submissions in writing by and on behalf of the Attorney General were presented to the Court submitting that none of the provisions of the Bill were repugnant to the Constitution.


The oral hearing then took place before the Court on the 24th, 25th and 26th January, 2005. During the course of the hearing the Court heard oral submissions by counsel assigned by the Court and by counsel for the Attorney General.


The Legislation


The Bill in question is a short Bill and since the entire Bill is the subject of the question referred to the Court pursuant to Article 26 of the Constitution, it is appropriate to set out its terms in full:












1.—Section 53 of the Health Act 1970 is amended—

  • (a) in subsection (2)—

    • (i) by substituting "Notwithstanding anything in the Health Acts 1947 to 2004 but subject to subsections (3), (4) and (9), the Minister shall" for "The Minister may", and

    • (ii) in paragraph (a), by substituting "to whom the in-patient services are provided" for "who are not persons with full eligibility", and

  • (b) by inserting the following after subsection (2):

    "(3) A charge imposed under regulations made under subsection (2) on or after the enactment of this subsection is not payable where the in-patient services concerned are provided to—

  • (a) a person under 18 years of age,

  • (b) a woman in respect of motherhood,

  • (c) a person detained involuntarily under the Mental Health Acts 1945 to 2001,

  • (d) a person who—

    • (i) is in a hospital for the care and treatment of patients with acute ailments (including any psychiatric ailment), and

    • (ii) requires medically acute care and treatment in respect of any such ailment,


  • (e) a person who pursuant to section 2 of the Health (Amendment) Act 1996, in the opinion of the chief executive officer of a health board, has contracted Hepatitis C directly or indirectly from the use of Human Immunoglobulin Anti-D or the receipt within the State of another blood product or a blood transfusion.

    • (4) The chief executive officer of a health board may reduce or waive a charge imposed on a person under regulations made on or after the enactment of this subsection if the chief executive officer is of the opinion that, having regard to the financial circumstances of that person (including whether or not that person has dependants), it is necessary to do so in order to avoid undue financial hardship in relation to that person.

    • (5) Subject to subsection (6), it is hereby declared that the imposition and payment of a relevant charge is, and always has been, lawful.

    • (6) Subsection (5) shall not apply in the case of a relevant charge which is the subject of civil proceedings—

  • (a) instituted on or before 14 December 2004, and

  • (b) for the recovery of the relevant charge.

    • (7) Subsection (5) is in addition to, and not in derogation of, any other ground (whether under an enactment or rule of law) which may be raised in any civil proceedings (including civil proceedings referred to in sub-section (6)) to debar the recovery of a relevant charge.

    • (8) For the avoidance of doubt, it is hereby declared that—

  • (a) regulations made under subsection (2) and in force immediately before the enactment of this subsection—

    • (i) shall continue in force on and after that commencement and may be amended or revoked, and

    • (ii) subject to paragraph (b), do not apply to persons with full eligibility,


  • (b) such regulations may be amended on or after that commencement to apply, in whole or in part, to persons with full eligibility.

    (9) Where in-patient services have been provided to a person for—

  • (a) a period of not less than 30 days, or

  • (b) periods aggregating not less than 30 days within the previous 12 months,


  • (c) a charge imposed under regulations made under subsection (2) on or after the enactment of this subsection for the further provision of any in-patient services to that person shall be charged at a weekly rate, and

  • (d) such weekly rate shall not exceed 80 per cent of the maximum of the weekly rate of the old age (non-contributory) pension within the meaning of the Social Welfare Acts.

    • (10) A period of 30 days referred to in subsection (9) begins to run immediately the person concerned is provided with in-patient services, and irrespective of whether during all or any part of that period the charge referred to in that subsection is not payable by virtue of the operation of subsections ( 3) or (4).

    • (11) Notwithstanding section 51, in this section—

      'in-patient services', in relation to any regulations made under subsection (2) on or after the enactment of this subsection, means the institutional services referred to in the definition of 'in-patient services' in section 51 only insofar as those institutional services consist of the maintenance of a person;

      'relevant charge' means a charge—

  • (a) imposed (or purporting to be imposed) under regulations made (or purporting to be made) under subsection (2), and

  • (b) paid at any time before the enactment of this subsection.".


    • .—(1) This Act may be cited as the Health (Amendment) (No. 2) Act 2004.

    • (2) The collective citation "the Health Acts 1947 to 2004" shall include this Act."


Section 53 of the Act of 1970


As can be seen the Bill is limited to amending s. 53 of the Act of 1970. Section 53 of that Act provides as follows:


"53.—(1) Save as provided for under subsection (2) charges shall not be made for in-patient services made available under section 52.


(2) The Minister...

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