Finnerty v. Western Health Board [1998] IEHC 143 (5th October, 1998)

[ Home ] [ Databases ] [ World Law ] [ Multidatabase Search ] [ Help ] [ Feedback ] [ DONATE ] High Court of Ireland Decisions You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Finnerty v. Western Health Board [1998] IEHC 143 (5th October, 1998) URL: https://www.bailii.org/ie/cases/IEHC/1998/143.html Cite as: [1998] IEHC 143 [ New search ] [ Printable RTF version ] [ Help ] Finnerty v. Western Health Board [1998] IEHC 143 (5th October, 1998) THE HIGH COURT JUDICIAL REVIEW No. 305 J. R. BETWEEN MARTIN FINNERTY APPLICANT AND WESTERN HEALTH BOARD RESPONDENT Judgement of Ms. Justice Carroll delivered on the 5th day of October 1998 1. The Applicant is a registered medical practitioner. In May 1988, he commenced medical practice in Ballinrobe, Co. Mayo. He notified the Respondent that he had commenced practice at Neale Road, Ballinrobe on 28th December, 1988 in order to establish his eligibility for the purpose of gaining entry to the General Medical Services (GMS) scheme. Entry to the GMS scheme was governed by Circular 9/81 which provided (paragraph 4) that a doctor who had completed five years continuous service in full time general practice at a particular centre might apply for a GMS contract at that centre. Paragraph 4 also provided that practice at a particular centre might be construed as including cases in which a doctor practises at not more than one other local centre. Under Circular 13/88 entry to the GMS scheme under the five year rule was restricted to medical practitioners who had established themselves on or before 1st January, 1989. 2. In 1991, the Applicant advertised in the Connaught Tribune on 28th June that he had commenced practice in Dr. Rosario's surgery in Athenry (30 miles from Ballinrobe). The advertisement indicated that surgery hours were between 11.30 a.m. to 1.30 p.m. and 4 p.m. to 6.30 p.m. This practice had formally belonged to the Applicant's father. Dr. Rosario had bought the practice and the family home on the death of the Applicant's father in 1964. He had made an agreement that when he retired he would give first refusal to which ever of the late Dr. Finnerty's children who was qualified as a doctor, wanted to buy it. In 1991, Dr. Rosario offered the house and the practice as a going concern to the Applicant. He accepted the offer in April 1991. The Applicant found out later that month that one of the doctors in Ballinrobe, Dr. McDonald, was moving from there. The Applicant said Dr. Rosario put pressure on him. He attended surgery in Athenry for nine months from June 1991 to February 1992. According to his grounding affidavit he attended on an irregular basis between one and two hours a day from Monday to Friday, and continued to practice in Ballinrobe. He said he worked there a minimum of 52 hours per week between surgery and domiciliary visits. He was twenty four hours on-call, seven days a week. 3. He contacted Mr. Bruton, Programme Manager of the Respondent by telephone at the beginning of May 1991. After some correspondence Mr. Bruton wrote to him on 11th July, 1991 saying he believed the Applicant had commenced private practice in Athenry as confirmed by advertisement in the Connaught Tribune on 28th June, 1991 and advised him that he was no longer eligible to enter the GMS scheme under paragraph 4 of Circular 9/81. The Applicant was in contact with Mr. Bruton in July and August 1991. Then Mr. Bruton wrote on 6th February, 1992 to say that he was not satisfied that his only central practice to date was in the town of Ballinrobe, Co. Mayo, that he had undertaken private practice in Athenry and that he did not consider him eligible for the GMS scheme. There was no reply to this. After the expiration of five years from December 1988 the Applicant applied by letter dated 16th December 1993 to enter the GMS scheme under the five year rule. On 9th April, 1994, Mr. Bruton made a submission to Mr. Hannon, the CEO of the Respondent, recommending that the Applicant would not be admitted to the scheme. He mentioned two matters one of which was the criteria of the Circular 9/81 and the other related to prescribing. As stated in his affidavit the CEO approved the recommendation on the basis that the Applicant did not come within the terms of paragraph 4 of Circular 9/81 and on no other basis. He directed Mr. Bruton to inform the Applicant and he approved the draft letter to be issued to the Applicant. This letter is dated 9th April 1994 but was not sent until some days later. In it, Mr. Bruton referred to the Applicant's request to enter the GMS scheme under the five year rule and informed him that he did not satisfy the criteria in paragraph 4 of Circular 9/81. 4. The Applicant wrote to the Minister for Health on 27th September, 1994 setting out his case. A reply issued on 17th November, 1994 pointing out (inter alia) about practice at not more than one other local centre and saying that it was a matter for the CEO to ensure applications for entry to the GMS scheme under the five year rule were made in accordance with the terms of the rule. A colleague of the Applicant, Dr. Vivian Brennan, wrote in March 1995 to the CEO setting out the Applicant's case and saying that he did not relocate to Athenry but set up a branch surgery, mornings only. The Applicant then wrote to the CEO on 11th May, 1995 setting out his case and asking for a reconsideration. The CEO wrote on 29th May, 1995 to say that he had reviewed the case, that the Applicant did not comply with the criteria and the decision conveyed on the 9th April, 1994 must stand. 5. The Applicant's solicitor wrote on 8th June, 1995 contesting the decision and calling on the CEO to admit the Applicant to the scheme within fourteen days, failing which he had instructions to issue proceedings. The letter was acknowledged on 26th June, 1995 and replied to on 31st July, 1995. The CEO repeated that the Applicant did not comply with the necessary criteria. The letter pointed out that the terms of the circular allowed that practice at a particular centre could be construed as including cases in which a doctor practised at not more than one other local centre and that Athenry could not be construed as a local centre within the meaning of the rule. 6. An application for judicial review was made seeking certiorari quashing the rejection "as embodied in a letter of 31st July, 1995" of the Applicant 's candidacy for entry into the GMS Scheme. An order was made on 4th December 1995 giving liberty to apply for judicial review on the grounds set forth in the application. In summary these are:- (1) Failure to consider the application properly or alternatively taking irrelevant/extraneous matters into account. (2) Misconstruing powers in Circular 9/81 and acting ultra vires. (3) Error of law in refusing entry to the GMS Scheme. (4) Failing to act with natural and constitutional justice. (5) That the refusal was arbitrary, capricious, unreasonable and discriminatory. (6) Breach of the Applicant's reasonable/legitimate expectation to be admitted to the scheme. 7. The Respondent in its grounds of opposition denied the allegations and (in an amendment) raised the question of delay. 8. The actual decision impugned was the decision contained in the letter of 31st July, 1995. This was a reiteration of the decision of 29th May, 1995. This decision differed from the first decision made on 9th April, 1994 in that it was a reconsideration which took into account the arguments made by the Applicant in his letter of 11th May, 1995. 9. I am satisfied that the Applicant agreed to buy Dr. Rosario's practice and attended in Athenry mornings only, one to two hours, Monday to Friday for a nine month period from June 1991 to February 1992. His case is that nine months irregular attendance in the mornings did not affect his full time general practice in Ballinrobe. 10. The CEO applied the wording of the Circular which said that a doctor who had completed five years continuous service in full time general practice at a particular centre might apply for a GMS contract at that centre and that practice at a particular centre might be construed as including cases in which a doctor practises at not more than one other local centre. The CEO took the view that Athenry could not be construed as a local centre. 11. There are no grounds for holding that the Respondent failed to consider the Applicant's application properly or took irrelevant/extraneous matters into account. The CEO was fully aware of the case being made by the Applicant. He had received the letter from Doctor Brennan in March 1995. He then received the letter from the Applicant on 11th May, 1995. So, when he reconfirmed his decision on 29th May, 1995 he was fully aware of the arguments advanced on behalf of the Applicant. 12. With regard to his previous decision, while an extraneous matter was mentioned in the submission to him on 9th April, 1994 by Mr. Bruton, this was not taken into account and the CEO specifically states that he took the decision only on the basis that the Applicant did not come within the terms of paragraph 4 of Circular 9/81. However this decision cannot be taken as the definitive decision since the CEO does not appear to have been made aware at that time of the Applicant's arguments. This was rectified when the CEO came to reconsider that decision. I do not accept the argument that the decision of 9th April, 1994 was tainted beyond redemption. In my opinion there was no failure to consider the application properly when it came to be reconsidered. 13. Since the Applicant had every opportunity to put forward his arguments and these were considered by the CEO when reconsidering his decision, the allegation that the CEO failed to act with natural and constitutional justice cannot be sustained. 14. As to the allegation that the CEO misconstrued his powers under Circular 9/81 and acted ultra vires, this has not been substantiated. The CEO is the person who had to make the decision in relation to entry to the GMS scheme. He was acting within his powers when he reconfirmed his decision on 29th May, 1995 and again on 31st July, 1995. He interpreted the paragraph in the Circular rationally. 15. The Applicant submitted there was a mixed question of fact and law to be decided, namely, the meaning of full time practice. However, in my view, the question to be answered was whether the Applicant's practice in Athenry was at a "local" centre within the meaning of the rule. The CEO answered this question. 16. As to whether the decision is unreasonable, I am satisfied that the decision does not come anywhere near the test outlined in the State (Keegan) -v- Stardust Compensation Tribunal , 1986 I. R. 643 in that it does not plainly and unambiguously fly in the face of fundamental reason and common sense. The decision, in my opinion, is neither arbitrary, capricious, unreasonable or discriminatory. It applies the criteria set out in paragraph 4 of the Circular. Since the Applicant carried on practice at another centre which was not a local centre he did not fulfil the criteria. 17. The Applicant can have no complaint on the grounds of breach of reasonable or legitimate expectation. His only legitimate expectation was that he would be treated fairly in the consideration of his application, which he was. 18. Having failed on all the substantive grounds, it is also my opinion that the Applicant should fail on the grounds of delay. 19. Order 84, Rule 21(1) provides that an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose, or six months where the relief is Certiorari, unless the Court considers there is good reason for extending the period within which the application should be made. The Applicant knew from July 1991 that his eligibility for the GMS scheme under the five year rule was in question. When he applied to enter the scheme he was refused by letter dated 9th April, 1994. This decision was supported by the Minister in the letter of 17th November, 1994. It was confirmed by the CEO on 29th May, 1995 and again on 31st July, 1995. A decision which is a reiteration of a previous decision is not a new decision. Time therefore begins to run when the final decision is first made. For this purposes of this action the decision of 29th May, 1995 was the final decision. The Applicant did not apply to Court within six months of that date. He had a solicitor who mentioned in his letter of 8th June, 1995 that he had instructions to sue and no explanation was offered to explain the delay. I can see no good reason for extending the period. In my opinion, the Applicant is not entitled to bring this application on the grounds of delay. © 1998 Irish High Court BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII URL: https://www.bailii.org/ie/cases/IEHC/1998/143.html