The Government's response is based on an incomplete analysis of the Statute of Limitations, writes Eoin O'Dell
Since 1970, when that year's Health Act gave medical-card holders the right to receive nursing home care free of charge, a time bomb has been ticking under consecutive governments. It exploded last February 16th, when the Supreme Court held that charging for those services was unlawful, and that the Government's attempt to validate those charges retrospectively was unconstitutional.
In her announcement on Wednesday, the Minister for Health has sought to pick up the pieces after that explosion.
Her strategy is clear, and in many respects commendable. A speedy, non-bureaucratic and quite generous scheme for repayment is to be established under which eligible patients will be able to recover their payments without having to involve lawyers and the courts.
But the scheme will seek to limit the classes of those who can recover payment: it will allow all those alive to recover all payments, and it will allow the estates of those who died in the last six years also to recover all of their payments, but it will seek to apply the Statute of Limitations to every other case.
That statute seeks to balance the interests of plaintiffs and defendants by requiring claims to begin within a reasonable time, and says the kinds of claim at issue here must be started within six years of when they arise. Many of the claims of those alive or who died in the last six years would relate to payments made more than six years ago, and thus would be precluded by the statute, and Ministers obviously feel they are being more than generous by not applying the statute to those plaintiffs.
But, in a limit to that generosity, the Government will seek to apply the statute to the estates of those who died more than six years ago.
The problem with the Government's position is that it is built on an incomplete analysis of the statute. In particular, at least three exceptions to the six-year limitation period can apply here.
First, patients paid in the mistaken belief that they had to pay - and the limitation period does not begin to run until the plaintiff knew or could reasonably have known of the mistake. Second, the limitation period does not run for so long as plaintiffs' claims have been concealed by the fraud of the defendant; a defendant's knowledge of a claim, combined with stealth or silence to hide that fact from the plaintiff, can amount to fraud for this purpose; and the Travers report contains ample facts from which this kind of inaction might be spelt out. And third, the statute does not run against persons suffering from a mental disability. The cumulative effect of these exceptions, and others, is that the statute will not actually preclude the claims of the vast majority of the potential plaintiffs here.
Hence, there is probably no basis in the existing Statute of Limitations upon which the Government can rely in its attempt to preclude recovery to the estates of those who died more than six years ago.
Presumably, therefore, the legislation announced by the Minister on Wednesday will amend the statute to allow this policy to be implemented. But this will face two serious constitutional difficulties. First, limiting the claims of some successors in title to deceased patients but allowing others may be contrary to the constitutional guarantee of equality. Second, in its decision last February, the Supreme Court made clear that the State's attempt to remove the patients' causes of action to recover the unlawful health charges was contrary to the constitutional guarantees of private property. An attempt to do the same thing in this Bill is likely to suffer the same fate.
The Supreme Court is likely to be presented with an opportunity to determine this issue, either by a reference to it by the President, or by litigation by an estate precluded from claiming under the scheme - an ironic outcome, given the Minster's avowed and laudable intention to keep the lawyers out as much as possible.
Of course, the Government has a legitimate interest in maintaining the security of the public purse, and it may be politically and socially desirable to limit the State's liability. But the legal problems with the scheme are such that the Government may in the end have no option but to seek to amend the Constitution by referendum. Indeed, with a forthcoming ballot on the European constitution, there would even be a practical opportunity to do so. One wonders if there will be the political will.
Dr Eoin O'Dell is a Fellow in the School of Law, TCD