## Facts

- The President of Ireland referred the Health (Amendment) (No. 2) Bill 2004 to the Supreme Court for a pre-enactment constitutional review under Article 26.
- Under the Health Act 1970, many persons with “full eligibility” were not lawfully chargeable for in-patient services, yet State health authorities had imposed long-term care charges on such persons for years.
- The Bill had two main components:
  - Prospective provisions authorizing future charges for certain in-patient and institutional services, subject to specified categories, limits, and safeguards.
  - Retrospective provisions declaring past charges lawful “and always having been lawful,” and barring or extinguishing claims to recover monies previously paid under unlawful charging practices.
- The financial exposure to the State from restitution claims for the unlawful charges was substantial.

## Issues

1. Whether the Bill’s prospective provisions authorizing capped, regulated charges for certain institutional care violated constitutional protections of personal rights (including life, bodily integrity, and dignity).
2. Whether the Bill’s retrospective validation of unlawful charges, and the extinguishment of accrued restitution claims, impermissibly interfered with constitutionally protected property rights.
3. Whether legislatively determining the outcome of accrued or potential restitution claims violated separation-of-powers principles and access to judicial remedies.

## Decision

- The Supreme Court held that the Bill’s prospective charging scheme was constitutional.
- The Court held that the Bill’s retrospective provisions were unconstitutional because they retrospectively validated unlawful exactions and barred recovery actions.
- Because the Bill contained unconstitutional provisions, it was declared repugnant to the Constitution and could not be signed into law in that form.
- Persons who paid unlawful charges retained their entitlement to seek restitution of those sums.

## Legal Principles

- A claim to recover money unlawfully taken by the State (including an accrued restitutionary cause of action) is a form of property protected by the Constitution.
- The legislature may enact retrospective legislation, but it may not retroactively nullify vested property interests or accrued causes of action in a manner that is arbitrary or disproportionate.
- Fiscal and administrative considerations, even if significant, do not by themselves justify a blanket extinguishment of accrued rights to recover unlawfully exacted monies.
- The Constitution permits the State to structure health-care funding through means-sensitive, regulated charges; it does not require that all institutional medical care be provided free of charge in all circumstances.

## Conclusion

The Court approved a legislatively defined, safeguarded regime for prospective institutional-care charges, but rejected retroactive curative provisions that would have converted unlawful State charges into lawful ones and eliminated accrued restitution rights, treating those recovery rights as constitutionally protected property and finding the interference unjustified and disproportionate.


In re Article 26 & Health (Amendment) (No. 2) Bill 2004, [2005] IESC 7 (Ir. 2005)