November 25, 2022


Privately insured patients going into public hospitals will now know under what terms their insurers will or will not have to pay for their accommodation following the making of eight formal declarations by the High Court.

In a judgment, the court outlined the exact terms of a decision it made last year in which it found the HSE cannot make patients liable to pay private accommodation costs before they state whether they wish to be treated as private or public patients.

Being treated as a private patient does not mean a person can get a private room due to various constraints in the public/voluntary hospital system. But once they opt to be treated as a private patient, the hospital can charge the real cost of a bed whether it is in a communal “multi-occupancy” ward or a private room.

The HSE brought proceedings seeking to clarify the law on when it could charge insurance companies for the real cost of a bed which, at a minimum of €813 per night, is about 10 times what used to be charged.

The HSE argued there was a €170 million potential exposure to loss by public hospitals since the beginning of the use of a disputed waiver form in which privately insured patients were asked to give up their right to be treated as public patients.

The case was against Laya Healthcare, with Irish Life Health as a notice party, who both denied the HSE claims.

Laya said it has received hundreds, if not thousands, of complaints from its policyholders about being pressured by the hospitals to sign the waiver.

In the eight declarations made by Mr Justice Denis McDonald, the main thrust has to do with when and how a privately insured patient should be dealt with for the purposes of being treated privately or publicly.

The judge said he agreed with most of the wording put forward by Laya for the purpose of the declarations.

The central theme of the eight declarations is that an insured patient must of his/her “own volition” decide they wish to be treated as a private patient or give up or abandon that right.

Once they have done that, the right of a public hospital to charge €813 per night, if the person is on a multi-occupancy ward, kicks in. It rises to €1,000 per night if the patient is lucky enough to get a private room which their insurance also covers or in public hospitals.

A “grace period” also applies whereby, in the time between admission and when the patient is asked whether they wish to be treated as a private or public patient, they are not regarded as ineligible for public treatment.

Where a staff member of the hospital asks an insured person on which basis they wish to be treated, the person should also be informed of their entitlement to be treated as a public patient and the “consequences that flow from a decision to forego that entitlement”.

The judge also said that although it would “make sense from the perspective of good administration” that a patient’s choice in this matter should be evidenced in writing, it may be communicated orally subject to them being fully informed as to its meaning and effect.

The judge also said for the period between 2014 and 2017, when a waiver form used by the hospitals became an issue, anyone who waived their eligibility to be treated publicly can be charged the private rate.

The declarations also clarified that it was the patient and not the insurer who is charged, though insurers have direct settlement arrangements with most hospitals.

The judge said the HSE, in advancing the argument that it was the insurer and not the patient who was liable, was “plainly wrong” and should never have advanced that case.

Commenting on the case Laya Healthcare said it welcomed the supplementary judgment by the High Court and that it gives patients with private health insurance clarity around the choice they have if they choose to waive their statutory entitlement to receive public care and elect to be treated privately.


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