In the matter of Article 26 of the Constitution and the Health (Amendment) (No.2) Bill 2004,  I.E.S.C. 7 (Ir.)
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.
In 2005, under the Article 26 procedure of the Constitution, the Irish Supreme Court reviewed the constitutionality of a bill referred to it by the President. This bill authorized charges for in-patient services, provided by the public health service, to be imposed on certain people, in most cases, elderly people of limited means. Counsel argued that citizens who did not have the means to independently look after themselves had a constitutional right to care and maintenance by the State, derived from the constitutional right to life and bodily integrity and human dignity (Article 40.3) and could not be charged for such maintenance. Although it was not necessary to address this issue in this case, the Court concluded that an issue may well arise due to which the normal discretion of the legislature could be constrained by a constitutional obligation to provide shelter and maintenance for those with exceptional needs. As the bill contained adequate safeguards, the Court dismissed the argument that the imposed charges would unduly restrict access to relevant services to the extent that they would amount to a breach of the claimed constitutional right to maintenance. The provisions permitting charges were thus not deemed unconstitutional.
The challenged legislation also retroactively declared lawful certain charges imposed by the health service in the past, which contravened existing law at the time mandating free services. Furthermore the bill effectively stripped affected parties from any right to recovery. The Court ruled that this retroactive component of the bill was an unjust attack on property rights (Art. 43 and Art 40.3.2) and therefore unconstitutional. It was observed that under the constitutional framework, the property rights of persons of modest means deserved particular protection, since any abridgement of the rights of such persons is normally proportionately more severe in impact. The Court stated that such abrogation of a property right was only justified to avoid an extreme financial crisis or a fundamental disequilibrium in public finances, neither of which existed here.
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  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)