The Supreme Court has heard that the State has been wrongfully charging residents of nursing homes for the cost of their stay for over 34 years.
The Court has begun hearing a constitutional challenge to the new Health Amendment No. 2 Bill.
The Bill would allow the Government to charge nursing home residents who have medical cards up to 80% of their pensions to cover maintenance costs.
It was referred to the Supreme Court by President Mary McAleese to see if it is repugnant to the constitution. The seven judges have 60 days to deliver their ruling.
Opening the case against the Bill, Eoghan Fitzsimons SC, said the State is seeking to validate charges that were invalidly imposed.
The legal team making the challenge argues that elderly people who cannot fend for themselves have a right to life that requires the State to look after them free of charge until they die, or at least for those on non-contributory pensions
Minister Mary Harney's proposal to introduce maintenance charges amounting to up to 80% of pensions is also in breach of the pensioners' right to human dignity and bodily integrity, according to Mr Fitzsimons.
The 1970 Health Act had stated that in-patient services should be free for those with full eligibility.
Health Boards levied the charges, arguing first of all that nursing homes do not provide medical treatment and so do not constitute in patient services.
The Supreme Court ruled against them in 1976 but the Health Boards got around that by taking medical cards from residents once they went into homes.
Then in 2001 everyone over 70 years of age was given an automatic right to a medical card and could not have them withdrawn.
But the charges still continued. Mr Fitzsimons said the law was just being ignored.
The new Bill would also stop anyone suing to get their money back, and another Senior Counsel, Brian Murray, argued it would be a breach of constitutional property rights to give the State indiscriminate immunity.
The State's team will give its argument tomorrow.
If the Court finds the legislation is constitutional, it is then immune from further challenge.