In evaluating the constitutionality of a health policy bill referred to it by the President, the Irish Supreme Court considered whether provisions of the bill, permitting charges for in-patient services, even on elderly people with limited means, were compatible with the Constitution.
As per the Irish constitutional framework, in accordance with the judgment, the retroactive provisions of the bill in question have been voided. Moreover, aaccording to government sources, the Supreme Court’s decision meant the state was potentially liable for about €500 million-€1.2 billion in claims.
The Health (Repayment Scheme) Act 2006 was the legislative response to the judgment to reimburse those who were charged by the health services unlawfully. There does not appear to be any reported judgments in which affected individuals sued on strength of the Supreme Court’s judgment. The only judgment – Maher v. Health Repayments Scheme Appeal Office [2013] IEHC 344 – relates to a claimant’s standing under the Repayment Scheme. According to the Department of Health, 35,417 applications were received under the Health Repayment Scheme, with 19,809 claimants receiving a repayment and the total amount repaid is €448.7m. There are a few complex cases that are still being processed. (Email Interview with Dr. David Fennelly, Assistant Professor, Trinity College, Dublin, School of Law, July 2015).
The primary significance of the case was the acknowledgment of the Court that, in certain circumstances, the Constitution may impose an obligation on the State to provide individuals with essential care and services. Also, in light of the Irish Supreme Court’s usual deference to the legislature, this case is significant because the Court did pronounce the legislation unconstitutional in part, notwithstanding the fact that such a finding would cost the State an estimated €500 million. Moreover, this case departed from the Court’s earlier tendency to reject judicial recognition of implied socio-economic rights and indicates that the Court may see some role for the courts in the realization of implied socio-economic rights.
(Updated August 2015)