HSE cannot hold patients liable unless they wish to be treated privately, court finds

The healthcare executive cannot make hospital patients liable to pay the cost of private accommodation before they formally state that they wish to be treated as private or public patients, the High Court has found.

However, Mr Justice Dennis McDonald said that, once a patient wishes to be treated privately, a fee may be levied from the date of admission.

The judge was delivering his judgment in a case brought for determination relating to charges on the provisions of the Health Act 1970 (later amended) against healthcare brought by HSE.

Seeking a declaration on the proper interpretation of the law relating to the allegations, HSE estimated that there was a potential risk of loss of approximately €170 million by public hospitals since the introduction of the disputed waiver form, which would allow privately insured patients to give up. calls for. Their right to be treated as public patients.

The main effect of this was that the insurer would have to pay the actual bed cost for a patient in the public system, which is about 10 times what was charged.

Laya denies the claims, saying it has received hundreds, if not thousands, of complaints from its policyholders that are being pressured by hospitals to sign off on waivers. Irish Life Health, which was incorporated as a notice party, supported Laya’s position.

HSE said the Health Act allows patients to be charged as private patients where their entire hospital stay is to be treated as private.

Mr Justice McDonald noted that the decision made by an inpatient at a public hospital to choose to be treated as a private patient had important consequences, even if the patient opted to be treated as a public patient. was entitled. He said that the patient who chooses to do so is not considered eligible for treatment and hence becomes liable for the charges.

In so far as the relevant part of the 1970 Act (section 52.3) is concerned, the concept of availing (of option) involves a conscious decision of the patient, he said. It seemed to him that at least in the period after the law came into force, the concept primarily covered patients who were actively seeking private treatment.

“Such patients are not giving up anything in any real sense. They are not giving up their right to be treated as public patients because they have no desire to be treated as such.

“It would therefore be wrong to describe them as having waived their right to treatment on public grounds”, he said.

The judge said he came to the conclusion that the exemption was more relevant in the context of patients who were initially thinking of being treated on a public basis, but to consider the hospital’s request to see if they could be treated publicly. whether or not to be treated privately, agrees to relinquish or renounce the right to be treated as public patients.

He also said that though there is nothing in the relevant Act which requires exemption in writing, but it seems that it is a matter of good governance which they should do.

They were also of the view that, in cases where the hospital asks eligible patients to consider whether they want to be admitted on a public or private basis, they should be informed about their statutory eligibility (for public treatment) and the consequences thereof. should be notified in by undoing it.

For this reason, a private insured patient (PIP) form, which has been used in public hospitals, has served as a means of providing the patient with necessary information and as evidence that the patient has reached an informed decision. , both served a very useful purpose, she said.

It appeared to the Judge that section 55(1)(a) of the 1970 Act envisaged relaxation of eligibility even in the period between January 2014 and January 2017, when the relevant part of the 2013 amendment to the 1970 Act had come into force.

They did not believe that the HSE was entitled to charge a fee in respect of the period prior to the decision of a patient to be treated privately.

However, they also did not consider that a small gap between the date of admission and the date of a patient’s decision to avail private or public care necessarily precludes charging HSEs where the gap can be explained by some difficulties. Is. These include, for example, where, because of a patient’s condition upon admission, he was unable to indicate his intention in one way or another, he said.

That said, it would be wrong to conclude that charges for full hospital stay are not payable in cases where a patient, on admission, orally indicates an intention to be treated as a private patient, but a reason Or for another, there is a period of a few days before a written document is signed by the patient.

Where the decision on the date of admission has been communicated orally, the fee may be levied from the date of admission, he said.

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