The deadline imposed for claims may not stand up to judicial scrutiny, reports Carol Coulter.
The Government could eventually face a bigger bill than the estimated €40 million it has offered to repay medical card holders in residential care.
The Tánaiste and Minister for Health, Ms Harney, has sought to limit the Government's liability by introducing legislation which will not only legalise future deductions for medical card holders in residential homes, but also bar people from seeking rebates if they had not initiated legal action for repayment by 5 p.m. on Tuesday.
Mr Colm Burke is one of the solicitors representing some of the people involved, and he wrote to his local health board in Cork in early November seeking clarification of his client's entitlement to care.
His client was a ward of court and had assets in the Ward of Court office. However, she was also over 70, and therefore entitled to a medical card. The 2001 Act, which introduced medical cards for those over 70, specified they had "full eligibility" for services in the 1970 Mental Health Act. These services included hospital treatment, convalescent homes, centres for those with disabilities, and nursing homes.
Mr Burke obtained advice from counsel that these were not limited to nursing homes run by the health boards, but also included private nursing homes.
"If the health board cannot provide a bed then anyone over 70 is entitled to coverage in a private nursing home," he said. "This was a mistake in the 2001 Act. No one looked at what 'full eligibility' meant."
He drafted proceedings looking for the cost of nursing home care to be discharged for his client, who could not be accommodated by the health board, and for a number of the regulations under the 1970 Act to be declared ultra vires (introduced without the power to do so). The health board asked for six weeks to reply.
Ms Harney then announced the new legislation. "All the legal people we're talking to are saying you can't introduce retrospective legislation," Mr Burke told The Irish Times.
His client fits one category of potential claimant - the over-70 holder of a medical card by virtue of age, who has some assets. She comes under the 2001 Act giving her "full eligibility" for nursing home care and other services.
But there are other people whose claims may go back further. Many pensioners over 65, and people under 65 with disabilities, hold medical cards by virtue of coming under the means test. Their entitlement to free residential care falls under the 1970 Health Act, as interpreted by the Supreme Court in 1976.
This case concerned a woman called Mrs McInerney in residential care who sought clarification of her entitlement under the 1970 Act. The Supreme Court found she was an in-patient, and therefore entitled to coverage by her medical card.
The Department of Health then introduced regulations to deal with charging for residential care. According to Government sources, it considered that it was entitled to do so, but the latest opinion from the Attorney General says not. In order to achieve what the Department wanted - the right to charge - new legislation should have been introduced. The fact these regulations have been operating illegally for 28 years potentially exposes the Government to vast repayments to those who had medical cards before the 2001 extension of the scheme.
The Bill seeks to cut this prospect off by imposing the deadline of 5 p.m. last Tuesday for lodging claims. There is some doubt as to whether this cut-off point will stand up to judicial scrutiny.
"People have been deprived of their constitutional right of access to the courts without any notice," said a leading senior counsel. "Not only have their constitutional rights been infringed, but also their new rights under the European Convention on human rights.
"You would have to take a test case to strike down the legislation, but it would not take the greatest legal brain to unpick it."
If such a challenge succeeds, however, the Government can take some comfort from previous Supreme Court decisions on repayments of monies paid to the Government when the Government took them "in good faith".
In the Murphy taxation case it ruled against allowing repayments to people who had not already started proceedings on grounds that "fiscal chaos" would ensue.