Health Service Executive v Laya Healthcare Ltd
| Jurisdiction | Ireland |
| Judge | Mr. Justice Denis McDonald |
| Judgment Date | 25 November 2021 |
| Neutral Citation | [2021] IEHC 737 |
| Docket Number | [2018 No. 10218 P.] |
| Year | 2021 |
| Court | High Court |
and
[2021] IEHC 737
[2018 No. 10218 P.]
THE HIGH COURT
COMMERCIAL
JUDGMENT of Mr. Justice Denis McDonald delivered on 25 th November, 2021
. In these proceedings, the plaintiff (“ the HSE”) seeks a declaration as to the proper interpretation of s. 52(3) of the Health Act, 1970 (“ the 1970 Act”) as amended by s. 9 of the Health (Amendment) Act, 2013 (“ the 2013 Act”). It will be necessary, in due course, to consider the provisions of s. 52(3) in detail. At this point, it is sufficient to note that, under that sub-s., significant consequences flow from a decision by an in-patient at a public hospital to opt to be treated as a private patient at that hospital notwithstanding that the patient concerned is entitled to be treated as a public patient. Under the sub-s., a patient who so opts is deemed not to be eligible to be treated as a public patient. Such a decision renders the patient liable under s. 55(1) of the 1970 Act (as amended by s. 6 of the 2013 Act) to make a substantially higher payment for in-patient care than a patient who is treated as a public patient at the hospital even where the accommodation provided to that patient is no different to that provided to a public patient.
. As formulated in the statement of claim, the HSE originally sought a declaration that the defendant (“ Laya”), an insurance intermediary acting on behalf of a health insurer Elips Insurance Ltd, is liable to the HSE under s. 52(3) of the 1970 Act (as amended) for the payment of the in-patient charges of its members who opt to be treated privately at a public hospital. In circumstances where, by statute, any such charges are payable by the patient, Laya disputed that it had a direct liability of that kind to the HSE. On the final day of the hearing, counsel for the HSE confirmed that the declarations originally sought by it should be framed by reference to the liability of Laya's members rather than by reference to the liability of Laya itself.
. Laya has defended the claim on the basis that much of the HSE claim relates to services provided to patients in public hospitals prior to the patient opting to be treated as a private patient. Laya also maintains that, prior to any decision by such a patient to opt to be treated as a private patient, the patient must be fully informed as to the consequences of abandoning the entitlement to be treated as a public patient. Laya claims that there have been many occasions where its members have been requested by hospital staff to sign forms waiving their entitlement to be treated as public in-patients without any sufficient information being provided to them as to their statutory entitlements such that they have been unable to make a fully informed decision.
. It should also be noted that part of the relief claimed by the HSE is for an account of the charges alleged to be due by Laya in respect of its members. Laya has contended that there is no proper basis to direct the taking of an account in this case. Nonetheless, during the course of the evidence given by Mr. John McCall, Director of Claims at Laya, he agreed to provide certain information to the HSE on a voluntary basis. Against that backdrop, it was ultimately agreed on the penultimate day of the hearing that any issue in relation to the taking of an account could be deferred until after the court has made a decision on the issues addressed in this judgment.
. In order to understand the respective positions of the parties, it is necessary to consider, in some detail, the evolution of the statutory provisions which led to the adoption in 2013 of s. 52(3) in its current form. The provisions of s. 52(3) must also be considered in their proper context as part of a larger legislative scheme embodied in the 1970 Act and the many amendments to it.
. Part II of the 1970 Act provided for the creation of health boards to be responsible within specific functional areas for the administration of public health services. In turn, Part III made provision for the maintenance of hospitals by health boards. In substance, Part III provides for what has become known as public hospital care. In particular, s. 38(1) provided that a health board might, with the consent of the Minister for Health, provide and maintain a hospital or similar institution required for the provision of services under the Health Acts, 1947 to 1970.
. Part IV of the 1970 Act dealt, in more detail, with the provision of health services (which have subsequently become known as public health services). Section 45(1) addressed eligibility for such services. In essence, it provided that adults who were unable “without undue hardship” to arrange general practitioner medical and surgical services for themselves and their dependents would be entitled to full eligibility for the provision of health services under the 1970 Act. The effect of this provision was that adults who passed a “means test” were entitled to a medical card which confirmed their eligibility for the provision of these services. In turn, s. 46 of the 1970 Act dealt with persons with “limited eligibility”. These included, for example, persons insured under the Social Welfare Act, 1952.
. Chapter II of Part IV dealt with the provision of hospital in-patient and out-patient services. In terms which are largely the same today, s. 51 of the 1970 Act provided that “in-patient services” means “institutional services provided for persons while maintained in a hospital” or in a range of other facilities. Section 52(1) continues in force today and provides that: “ (1) A health board shall make available in-patient services to persons with full eligibility and limited eligibility”. As explained further below, the reference to a health board should now be read as referring to the HSE. The significance of s. 52(1) is explored in greater detail in paras. 110 to 113 below. Section 53 dealt with the imposition of charges for inpatient services but made clear that, subject to s. 53(2), charges would not be levied for in-patient services made available under s. 52(1). However, s. 53(2) empowered the Minister for Health (with the consent of the Minister for Finance) to make regulations providing for the imposition of charges for in-patient services in specified circumstances on persons without full eligibility. Thus, the 1970 Act envisaged that persons with full eligibility would receive free in-patient services at hospitals provided by the health boards but the Minister had the power to make regulations imposing charges for the provision of in-patient services to persons without full eligibility.
. Section 55 of the 1970 Act also addressed the provision of services to (a) persons with no eligibility and (b) those with eligibility who were treated in private or semi-private accommodation and who did not avail of the services to which they were entitled under s. 52. Section 55 was in the following terms:-
“55. A health board may make available in-patient services for persons who do not establish entitlement to such services under section 52 and (in private or semi-private accommodation) for persons who establish such entitlement but do not avail themselves of the services under that section and the board shall charge for any services so provided charges approved of or directed by the Minister.”
. It will be seen from the provisions of s. 55 that the criterion for the charging of patients with eligibility under s. 52 for in-patient hospital services was the provision of such services in private or semi-private accommodation in the hospital concerned. As counsel for Laya observed, this was a relatively straightforward criterion which could be applied without difficulty. However, that criterion was removed under subsequent legislation (described below).
. A number of significant amendments were made to the 1970 Act by the Health (Amendment) Act, 1991 (“ the 1991 Act”). Section 3 of the 1991 Act significantly expanded the category of persons entitled to “limited eligibility” under s. 46 of the 1970 Act. The effect of the amendment was that any person ordinarily resident in the State without full eligibility should, subject to s. 52(3) (addressed further below) have limited eligibility for services under Part IV of the 1970 Act.
. In addition, s. 5 of the 1991 Act introduced a significant new provision in s. 52 of the 1970 Act, namely s. 52(3). Insofar as relevant, the new subs. (3) was in the following terms:-
“(3) …where, in respect of in-patient services, a person with full eligibility or limited eligibility for such services does not avail of some part of those services but instead avails of like services not provided under section 52 (1), then the person shall, while being maintained for the said in-patient services, be deemed not to have full eligibility or limited eligibility, as the case may be, for those in-patient services.”
Further amendments have since been made to s. 52(3) and I will defer any detailed consideration of its terms to a later point in this judgment. However, the use of the language “does not avail” should be noted. The exclusive focus of the subsection was on a person (entitled to full or limited eligibility for in-patient hospital services) who does not avail of those services but instead avails of “like services”. In such circumstances, the patient will be deemed not to have eligibility for the provision of those services under s. 52. The effect of the subsection is to make such a patient liable for any charges that may be payable for in-patient services.
. The amendment made to s. 52 of the 1970 Act by s. 5 of the 1991 Act should be read with the amendment made to s. 55 of the 1970 Act...
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