Robbing old people and the law

Brendan Corish, a revered leader of the Labour Party, was the first to allow older people to be deprived of their medical cards, writes Vincent Browne

In the course of the 1997 Presidential election Mary McAleese claimed she was best suited to be President because, unlike the other candidates, she was an expert on the Constitution and a President was "guardian of the Constitution". This claim itself seemed to challenge her expertise for there is nothing in the Constitution that states the President is "guardian" of it.

The declaration a President is required to take on when assuming office does include a promise "to maintain the Constitution". The only possible basis for the proposition that the President is the "guardian" of the Constitution comes from Article 26, which permits the President, following consultation with the Council of State, to refer a Bill to the Supreme Court to test its constitutionality before signing it into law.

According to an authoritative work on the Constitution, JM Kelly: The Irish Constitution by Gerard Hogan and Gerard Whyte, the exercise of the Presidential power under Article 26 "is in fact arguably inimical to the upholding of constitutional values". This is because once a Bill has been referred to the Supreme Court and given approval, its constitutionality can never be challenged subsequently. This is so even though the law in question may have effects that were not foreseen by the Supreme Court when it reviewed the Bill under Article 26. There is a general legal view that Article 26 should never be used, except in the most exceptional of circumstances.

The Health Amendment (No 2) Bill 2004 may be one of such exceptional circumstances, because many of the people affected by it may not be in a position to offer a constitutional challenge at a later date to this provision and, particularly, to the attempt to give retrospective legality to an action that, clearly, was illegal.

The purpose of the Bill, according to its proponent, Mary Harney, is to "provide a legal framework for the charging of patients in long-term care in health board-run institutions and publicly contracted beds in private nursing homes". That is to the charging of patients both into the future and retrospectively. Such patients have medical cards entitling them, as of now, to free medical care. The proposed change is to legalise the taking of money for medical services from people who were given to understand such services would be given free by the State and to legitimise the practice to date of taking money from such patients illegally.

To the embarrassment of the Labour Party, it was a former revered leader of that party, Brendan Corish, who as Minister for Health and Social Welfare first authorised the taking of such monies from patients back in 1976. He authorised the CEO of a health board to withdraw medical card eligibility from patients in long term care (i.e. over 30 days), thereby allowing him/her/them to charge the patient for at least some of the cost of the care out of their pension entitlements. There was nothing in the 1970 Health Act permitting such authorisation. This was clearly illegal for the Health Act of 1970 prohibited the imposition of such charges. It states "charges shall not be made for inpatient services (for patients with full eligibility for medical cards)".

The problem became more acute in 2001 when everyone over 70, irrespective of their means, became eligible for medical cards. An incongruity of the extension of the medical card eligibility to this group was that, legally, they became entitled to long term medical care in hospitals and state run nursing homes, again irrespective of their means. The practice of illegally charging them for long term care became more prevalent after 2001.

A feature of such charging was that patients who objected to such charges or who referred the matter to the Ombudsman had the charges waived. Inevitably, it was those with better resources and otherwise less vulnerable patients who were in a position to offer such a challenge. Thus the imposition hit the vulnerable more than others.

The decision to extend medical card entitlement to everyone over 70 was made in the budget statement of December 1999. According to a report undertaken by the Comptroller and Auditor General, the Department of Health and Children was given only a few days prior notice of this announcement and therefore no reliable estimation of the costs of this initiative could be undertaken. The original forecasted cost of the scheme was €19m but within a few months it became obvious that the cost would be at least €51m per year.

The initiative was announced without first securing the agreement of the Irish Medical Organisation (IMO) and the Irish Pharmaceutical Union (IPU). Eventually, the Department of Health and Children agreed a capitation rate for General Practitioners in respect of the newly eligible medical card holders (i.e. the better-off medical card holders) that was a multiple of the rate GPs were paid for persons previously eligible. As of 31 December, 2003 the capitation rate for the poorer medical card holders varied between €99.25 and €178.19 per year as compared with a flat fate of €480.65 a year for the "newly" eligible (i.e. wealthier medical card holders).

GPs are paid for treating wealthier patients between 2.7 and 5 times more than they are paid for treating poorer people. This, inevitably, has encouraged GPs to favour the custom of the wealthier medical card holders. Nearly 70,000 "newly eligible" have become fully entitled to medical cards.

As is obvious from the report of the Comptroller and Auditor General, the implications of the initiative in 2001 to extend medical card eligibility to everyone over 70 were never thought through in advance of the announcement of the scheme. The cost of the scheme was vastly underestimated, the numbers of "newly eligible" was underestimated, no prior agreement was obtained with the relevant unions and there was the clearly inequitable consequence of incentivising General Practitioners to give priority to wealthier medical card holders. In addition there is the extra cost of long term medical care for these "newly eligible", another consequences that appears to have been overlooked.

Unlike some other bills referred by the President to the Supreme Court the issues arising from the Health Amendment (No 2) Bill 2004 appear straightforward: whether the retrospective aspect of the Bill is constitutional and whether the imposition of charges at all is constitutional given the expectation that was generated concerning free medical services for medical card holders.

President McAleese was not bound by the advice she obtained from the Council of State on Wednesday, 21 December, she is merely bound to consult with the Council.

Indeed that consultation process might itself seem bizarre, since the Council includes two people responsible for the Bill, the Taoiseach, Bertie Ahern and Tánaiste, Mary Harney, who are hardly likely to advise the Bill may be unconstitutional.

There is also the problem with the presence on the Council of the Chief Justice, John Murray, who as President of the Supreme Court, may be asked to adjudicate on the constitutionality of the Bill, could hardly have offered any advice one way or another. The President of the High Court, Joe Finnegan, who is an ex-officio member of the Supreme Court, may also have felt unable to offer an opinion.

The issue of the constitutionality of the retrospective legislation is by no means clear cut. Whereas it is certainly unconstitutional to criminalise past conduct, the issue of the retrospection of legislation that validates conduct on the part of the State that was previously illegal is not clear. But the politics would seem to be clear. What is proposed is that old people who hold medical cards and believed they were entitled to free medical services are now to be charged for long term medical services, perhaps retrospectively. Also those who were illegally charged for such services now have no entitlement to be refunded (that is if the Bill is found constitutional).

The government wants a situation whereby all others who applied illegal charges – for instance, the banks – are required to make repayments, but not the State even to some of the most vulnerable.