Legislation intended to reintroduce fees for pensioners in residential care has been referred to the Supreme Court by President McAleese.
The Health (Amendment) (No.2) Bill was rushed through the Oireachtas last week after it emerged that the charge was likely to be illegal.
President McAleese called together the Council of State yesterday to examine the legislation and today announced the matter would be referred to the highest court in the State, which must make a ruling within 60 days.
The President, Mrs Mary McAleese
The President is required to sign all legislation before it can take effect and under Article 26.1.1 of the Constitution is entitled to ask the Supreme Court to rule on the constitutionality of Bill before giving her seal of approval.
It is the third time she has referred a Bill and both previous occasions the legislation was found constitutional.
There had been concern that retrospective elements of the Health Bill were problematic because they could be giving legal standing to previously illegal charges. The legislation says all charges levied since 1976 on pensioners and other long-stay patients, including those in psychiatric hospitals, are lawful.
The Minister for Health, Ms Harney, introduced the Bill last week after the Attorney General, Mr Rory Brady, advised that the medical card extended to all over-70s in the State meant that there was an unsound legal basis for charging these people for residential costs of their care.
Health Boards had been charging for the costs of shelter and maintenance in both public and private institutions.
Defending the new legislation yesterday, Ms Harney said nursing home services would be affected if long-stay charges could not be levied becasue a €100 million shortfall in funding would be created.
Today she joined the broad chorus of political welcome to the President's decision saying it "will bring legal certainty" to the issue. "Within the next sixty days we can expect a definitive ruling by the Supreme Court on this matter, thereby avoiding protracted legal challenges through different courts and the stress and uncertainty imposed on people," she said.
Fine Gael health spokesman, Mr Liam Twomey said the referral of the Bill "should help clarify a situation that was created with the introduction of the 2001 legislation granting free medical cards for the over 70s."
Minister for Health, Ms Harney
"It might also deal definitively with an issue that has been ignored by the former Minister for Health, Micheal Martin, his Junior Minister with special responsibility for the Elderly, Ivor Callely and the second Junior Minister in the Department, Tim O'Malley since at least December of 2003," he said.
Former taoiseach Mr Charles Haughey was the only absentee from yesterday's Council of State meeting - the first to be held during President McAleese's second term but the fourth in all.
The Taoiseach, Mr Ahern, attended, along with Ms Harney; the Chief Justice, Mr Justice Murray; the president of the High Court, Mr Justice Finnegan; the Ceann Comhairle, Dr Rory O'Hanlon; the Cathaoirleach of the Seanad, Senator Rory Kiely, and the Attorney General.
It also includes former presidents Dr Patrick Hillery and Mrs Mary Robinson; former taoisigh Dr Garret FitzGerald, Mr Charles Haughey, Mr Liam Cosgrave, Mr John Bruton and Mr Albert Reynolds; and two former chief justices, Mr Justice T. A. Finlay and Mr Justice Ronan Keane.
Last month, Mrs McAleese appointed Col Harvey Bicker, Ms Anastasia Crickley, Ms Mary Davis, Prof Denis Moloney, Senator Martin Mansergh, Mr Enda Marren and Ms Daráine Mulvihill to the council.
Green Party health spokesman, Mr John Gormley, said the Bill had implications "for how the State will look after our elderly in the future" and Labour's Ms Liz McManus said "the public interest will be served by having absolute clarity as soon as possible".
SIPTU accused the Government of taking money from one of the most vulnerable groups in society and demanded an apology. "No Government spokesperson has yet apologised for the hardship and stress caused to these people or their families for levying illegal charges on them," said Mr Paul Bell, the union's Dublin health services branch secretary. "Instead they have acted quickly to frustrate the efforts of those seeking redress for the injustice caused."