Cooke v Walsh

• Jurisdiction: Ireland
• Judge: Mr. Justice Hamilton
• Judgment Date: 11 January 1983
• Neutral Citation: 1983 WJSC-HC 2179
• Docket Number: 1666P/1981
• Court: High Court
• Date: 11 January 1983

1983 WJSC-HC 2179

THE HIGH COURT

1666P/1981

COOKE v. WALSH (CONSTITUTIONAL ISSUE)

MARK COOKE (AN INFANT SUING BY HIS FATHER AND NEXT FRIEND WILLIAM COOKE)

and

PATRICK WALSH

CONSTITUTIONAL ISSUE

Subject Headings:

CONSTITUTION: statute

MINISTER OF STATE: power

STATUTE: power

1 Judgment of Mr. Justice Hamilton delivered the 11th day of January 1983.

2 In an amended Defence delivered on behalf of the Defendant, the Defendant pleaded that

3 (a) The Plaintiff is a person with full eligibility for all the services to which an eligible person is entitled free of charges on payment under the provision of the Health Acts, particularly the Health Act 1970.

4 (b) The Plaintiff has been charged with such services on the grounds that he is alleged to be rendered ineligible for free services by virtue of the provisions of the Health Services Regulations 1971 and more particularly Regulation 6(3) thereof.

5 (c) In excluding or purporting to exclude from the benefit of such free services victims of Road Traffic accidents (including the Plaintiff if his allegations are correct) the Minister acted ultra vires his powers and the said Regulation 6(3) of the Health Services Regulation 1971 is unconstitutional and contrary to the provisions of the Constitution of Ireland 1937 particularly Article 40.1 thereof is discriminatory, is contrary to natural justice and is contrary to natural rights and as a result thereof is null, void and of no effect.

6 The Attorney General was served with Notice of this plea made on behalf of the Defendant.

7 With the consent of the Parties I direct that the following issues be tried:-

8 2 "1. Is Section 72 s.s. (1) and s.s. (2) of the Health Act 1970invalid having regard to the Provisions of the Constitution?

9 2. If the said Section 70(1) and (2) is not invalid having regard to the provisions of the Constitution, is Article 6(3) invalid having regard to the provisions of the Constitution?

10 3. If neither the said Sections 72(1) and (2) nor the said Article 6(3) is invalid having regard to the provisions of the Constitution, was the Minister for Health acting ultra vires in making the said Article 6(3)?

11 4. Has the Defendant the necessary locus standi to raise the Constitutional issue raised in the first and second issues?"

12 And that the Defendant, Patrick Walsh, be the Plaintiff in the trial of the issue and the Attorney General and the infant Plaintiff be the Defendants in the trial of the issue.

13 It is of assistance at this stage to set forth the Defendants replies to the notice of particulars delivered on behalf of the Attorney General dated the 20th day of September 1982 because they set forth concisely the grounds upon which he alleges that the said Section of the Health Act 1970and the Regulation 6(3) of the Health Services Act 1971 (S.1. of 71) were invalid having regard to the provisions of the Constitution.

14 In his said reply, the Defendant stated that:-

15 Section 72(2) was invalid having regard to the provisions of the Constitution and in particular

16 (a) Article 15.2 thereof in that it purports to delegate a law making power to the Minister for Health

17 (b) Article 40.1 thereof, in that

18 (i) Whilst the said Health Act 1970provides that health services are to be made free of charge to persons having eligibility, the said Section 72(2) enables the Minister to exclude, from the beneficial operation of the said Act, certain classes of persons having eligibility for the said services.

19 (ii) The Minister in the exercise of the powers purported to be given to him by the said Act and in particular by Sec. 72(2) thereof can and has discriminated unfairly against some citizens and in particular the Plaintiff herein.

20 (iii) The said Section 72(2) fails to hold the citizens equal before the law in that it fails to have regard to differences of capacity, physical and moral, and of social function in the citizens and purports to enable the Minister to exclude citizens from the aforesaid benefits of the Act without having regard to the said matters or any of them.

21 (iv) The said Section 72(2) fails to hold the citizens equal before the law.

22 (v) The said Section 72(2) fails to have due regard to the differences of capacity of the citizens and in particular the differences of physical capacity.

23 (vi) The Minister in the exercise of powers purported to be given to him by the said Section 72(2) can discriminate unfairly against some citizens in that the said Act lays down no standard in the light of which such service or services are to be made available to such class or classes of citizens.

24 (vii) The Minister in regulating which service or services is or are to be made available to which class or classes of persons having eligibility therefor may and has, while exercising such powers purported to be given to him by the Act, unjustly favoured some citizens and victimised others

25 (c) Article 40.3.1. in that

26 (i) It purports to allow the said Minister to withhold or to remove by regulation a personal right from citizens or classes of citizens

27 (ii) It purports to allow the said Minister to withhold or exclude by Regulation a personal right without regard to the said Minister duty to defend and vindicate the personal rights of citizens

28 (d) Article 40.3.2. in that

29 (i) It constitutes a failure to vindicate the life person and property rights of every citizen

30 (ii) It constitutes a failure to protect and vindicate the contractual rights of such citizen as may be "eligible persons" within the meaning of the said Section.

31 The said reply further stated that:-

32 Article 6(3) of the Health Services Regulations 1970 is invalid having regard to the provisions of the Constitution and in particular

33 (a) Article 15.2 thereof in that:-

34 (i) the said Minister has usurped a law making power solely vested in the Oireachtas

35 (b) Article 40.1 in that

36 (i) it unfairly discriminated between citizens injured in road traffic accidents and all other citizens

37 (ii) it purports to exclude citizens requiring treatment for injuries received in road traffic accidents without regard to differences in such citizens of capacity, physical and moral

38 (c) Article 40.3.1. in that:-

39 (i) It purports to remove a personal right from certain citizens or alternatively a certain class of citizen

40 (ii) It constitutes a failure to defend and vindicate a personal right of citizen or alternatively certain classes of citizens.

41 (d) Article 40.3.2. in that

42 (i) It constitutes a failure to vindicate the life, person and property rights of every citizen and in particular the said persons and property rights of these persons requiring treatment of injuries received in road traffic accidents

43 (ii) It constitutes an unjust attack upon and failure to defend and vindicate the lives persons and property rights of all citizens

44 The said rights further stated that:-

45 1. The said Minister acted ultra vires his power in that:-

46 (i) He had no power under the said Health Services Acts to exclude any persons, being entitled (persons) from the benefit of the said Acts

47 (ii) He was not entitled to delegate the power in excluding from the benefit of the said Acts (if such power he had - which the Defendant denies) to the relevant Chief Executive of the Health Board

48 (iii) He discriminated in an unfair, invidious and arbitrary fashion again citizens, being entitled persons contrary to Article 40.1 of the Constitution.

49 (iv) He failed to respect or defend the personal rights of citizens being entitled persons contrary to Article 30.3.1 of the Constitution.

50 (v) He unjustly attacked and failed to vindicate the lives persons and property rights of citizens being entitled persons contrary to Article 40.3.2 of the Constitution.

51 The fourth issue dealt with the question whether the Defendant, Patrick Walsh had any locus standi to raise the aforesaid issues and to claim declarations in respect thereof.

52 As the Defendant in this case is materially affected by the provisions, which are under attack, in that he is liable to compensate the infant Plaintiff for the loss sustained by him, I am satisfied that he has the right to maintain these proceedings. That right is not affected in any way by the fact that he is indemnified again such loss.

53 Section 51 of the Health Act, 1970(1 of 1970) provides that:-

54 "In this part "in-patient" services means institutional services provided for persons while maintained in a hospital, convalescent home or home for persons suffering from physical or mental disability or in accommodation ancillary thereto".

55 Section 52 (1) provides that:-

"A health board shall make available in-patient services for persons with full eligibility and persons with limited liability."

56 Section 53 (1) provides that:-

57 "Save as provided for under ss (2), charges shall not be made for in-patient services made available under Section 52".

58 Section 53 (2) provides that:-

59 "The Minister may, with the consent of the Minister for Finance, make regulations:-

60 (a) providing for the imposition of charges for in-patient services in specified circumstances on persons who are not persons with full eligibility or on specified classes of such persons, and

61 (b) specifying the amounts of the charges or the limits to the amounts of the charges to be so made."

62 It is clear from a consideration of the provisions of Sec. 53(2) that the Minister is not thereby empowered to make regulations providing for the imposition of charges for in-patient services on persons who are persons with full eligibility.

63 The power thereby conferred is to make regulations for the imposition of charges on persons who are not persons with full eligibility or on specified classes of such persons viz. persons who are not persons...