THE SUPREME Court has overturned a High Court finding that Minister for Health Mary Harney breached the terms of five pharmacists contracts with health boards in 2002 by ending the system of advance payments to pharmacists for services under the General Medical Services scheme.
In a 2007 decision, the High Court ruled the community pharmacists were entitled to the benefit of advance payments under the GMS scheme for “as long as their contracts remain in force”. However, those contracts could be terminated or renegotiated, Mr Justice Frank Clarke added.
The five-judge Supreme Court yesterday found the High Court judge misdirected himself in law in finding the terms of a 1971 Memorandum providing for advance payments were incorporated into the 1996 Community Pharmacy Contract Agreement between pharmacists and the health boards (now the HSE).
The body representing pharmacists said it was “disappointed with the outcome” of the ruling.
However the Irish Pharmacy Union (IPU) said it welcomed the court’s confirmation that the pharmacy contract could be changed through agreement.
The union said it will review the ruling to see if it has any implications for contract terms between its members and the HSE.
A spokeswoman for the Department of Health yesterday said that she had “no comment” to make on the ruling.
The memorandum providing for advance payments had been negotiated between the IPU and the Minister
The issue was whether terms in a collective bargaining agreement, such as the 1971 Memorandum, were incorporated into individual contracts between the pharmacists and the health boards, Ms Justice Fidelma Macken said.
There was no express support in any of the relevant documents or the evidence for the High Court finding those terms were imported into the 1996 contract, she ruled.
That finding of importation had led to the High Court wrongly concluding the Minister’s decision of December 2002 to stop the payments constituted an “unlawful variation” of agreed terms of standard form contracts between the five individual pharmacists and the HSE, she also found.
The High Court erred in finding the Minister had breached the terms of the pharmacists contracts with the health boards, she concluded.
She agreed with the High Court those contracts could be renegotiated or terminated.
Ms Justice Macken’s conclusions were agreed with by the four other members of the court – the Chief Justice, Mr Justice John Murray; Mrs Justice Susan Denham; Mr Justice Adrian Hardiman and Mr Justice Hugh Geoghegan.