Health (Amendment) Act, 1986
The Health (Amendment) Act, 1986, seeks to restore the position that was perceived to obtain immediately prior to the decision of the Supreme Court in Cooke-v-Walsh and a synopsis of the main provisions is set out below.
1. The main provisions of the Act concern personal injuries caused by the negligent use of a mechanically propelled vehicle in a public place, involving in-patient services or out-patient services, provided by a Health Board. Where the injured person, his personal representative or dependant has received or is entitled to receive damages or compensation in respect of the injuries, or any loss, damage or expense (or mental distress in the case of a dependant) arising therefrom, the Health Board shall, notwithstanding anything in the Health Acts, 1947-1985, make a charge on the person who received or is entitled to receive such damages or compensation.
2. A Health Board may waive the whole or part of a charge for such services if it considers it proper to do so, having had regard to the amount of damages or compensation and interest (if any) thereon received by the person liable to pay the charge and having regard to any contributory negligence.
3. In proceedings claiming damages in respect of such injury, the provisions of the Act entitling the Health Board to waive the whole or part of a charge shall be disregarded. It is clear from the foregoing, firstly, that the Health Board has no option in the matter and, where the injury is the result of the negligent use of a mechanically propelled vehicle, must make a charge even though, had the injury occurred in other circumstances, no charge might have been possible. Furthermore, the obligation on the part of the Health Board to make such a charge exists not only where damages or compensation have actually been recovered but where the injured person, his personal representative or dependant is entitled to receive damages or compensation. While it is true that the Act further provides that the Health Board may waive the whole or part of a charge, it is not mandatory on it to do so. It would seem that under these provisions an injured person might very well be compelled to pay a charge (notwithstanding his possible entitlement to free treatment under the Health Acts in other circumstances) and only some time later, when it becomes clear that he is unable to recover damages or compensation, either at all or in full, would part or all of the charge be reimbursed, provided the Health Board decides to waive the same. It will be remembered that prior to Cooke -v- Walsh the charge made by a Health Board was not (as one might have expected) the ordinary charge made to a private patient receiving treatment in hospital, but the full economic cost of maintaining an injured person in hospital. This in fact was a very much higher figure. The Act does not state expressly what charge should be made, but the possibility obviously exists that a full economic charge may again be sought. It is submitted the provisions of the Act apply only in cases where the injury was sustained after the Act came into force (7 May, 1986).
It is further submitted that the provisions of the Health (Amendment) Act, 1986, are by their very nature discriminatory against persons who are injured by the negligent use of mechanically propelled vehicles in a public place and, indeed, the owners/drivers of those vehicles, and accordingly that the foregoing provisions of the Act may very well be found to be unconstitutional if and when tested in the Supreme Court.