Supreme Court dismisses dentists’ appeal over funding

The Supreme Court has dismissed an appeal by dentists over changes to the HSE funding of dental treatment for medical card holders which essentially confined it to emergency cases.

The five judge court unanimously ruled that a revised contract between the HSE and dentists gave the HSE “virtually untrammelled choice” in withdrawing funding from particular forms of dental treatments.

Before the disputed changes were introduced via a circular issued by the HSE in April 2010, dentists were entitled to reimbursement for all routine treatments provided to medical card holders. Under the 2010 circular, only emergency treatments qualified.

The Irish Dental Association (IDA) claimed the changes would lead to the break-up of its service to medical card holders.

The Supreme Court unanimously upheld a High Court decision rejecting on all grounds the challenge by two dentists - Martin Reid, Moville, Co Donegal, and James Turner, Baltinglass, Co Wicklow - to the changes.

The two had appealed a High Court 2011 decision by Mr Justice Roderick Murphy there was no breach of contract by the HSE when it issued the circular.

Both dentists, members of the IDA,  participated in the Dental Treatment Service Scheme (DTSS), introduced in 1994 for medical card holders. In 1999, the IDA negotiated revised procedures over the DTSS which allowed health boards take whatever measures necessary to live within their budgets and statutory obligations, the High Court noted.

Budget

The 2010 Budget limited expenditure under the DTSS to €63 million and, as a result, the HSE issued the circular.

The High Court found the circular, despite its limitations, was “patient oriented” because it meant emergency care related to pain and sepsis must be provided and also meant additional care could be considered in exceptional cases.

Giving the Supreme Court judgment upholding that decision, Mr Justice Peter Charleton rejected arguments by the dentists that nothing in the contracts between the HSE and dentists permitted such a "major unilateral change" as was introduced in 2010.

The relevant contract dates from 1994 and was revised in 1999, he said. The Irish Dental Association had in a letter of September 17th, 1999 to the head of industrial relations in the Health Services Employers Agency given a specific acknowledgement of badgering constraints, he said. Dentists then worked under the 1999 contract for another decade until this dispute arose in the wake of the economic crisis manifest from 2008.

By 2009, the national costs of this scheme had risen to €80 million, he said. A decision was taken to limit the expenditure for 2010, and for all subsequent years, to €63 million and the circular essentially told dentists only emergency treatments would be funded from then.

The judge upheld arguments by the HSE the 1999 revision of the 1994 contract entitled it to take not just a wide range of measures but whatever measures were necessary to meet its budget constraints. The courts cannot override the express terms of a contract, he ruled.

As the dentists had identified no error in the High Court judgment, the appeal must be dismissed, the court held.