The Irish Pharmaceutical Union (IPU) has essentially lost a High Court bid aimed at compelling the Minister for Health to continue making advance payments to pharmacists under the General Medical Services (GMS) scheme. Such payments were stopped by the Minister on foot of a government decision in 2002.
Mr Justice Frank Clarke's judgment yesterday has implications for about 1,380 community pharmacy contractors who are alleged to have suffered multimillion-euro losses as a result of the government decision.
The judge ruled yesterday that the IPU itself has no contractual right, under agreements of 1971 and 1996, to have advance payments made to pharmacists under the GMS.
While he did find that individual pharmacies do have, under the terms of standard form individual contracts with the HSE, such a contractual entitlement to advance payments, he stressed the entitlements were not indefinite. He said the Minister for Health was entitled to insist the HSE either seek to renegotiate or terminate those same contracts. However, as long as the contracts remained in place, they must be obeyed and could not be unilaterally changed, he said.
He adjourned to next week the making of formal declarations in the case.
He was delivering his reserved judgment on a challenge by the IPU and a number of individual pharmacies to the 2002 decision. The plaintiffs had alleged wrongful and unilateral alteration by the Minister of an agreement for the advance payment of pharmacists participating in the scheme. The IPU claimed an agreement was entered into in 1971 to secure the participation of retail pharmacists in the reorganised GMS scheme. This involved the Minister making advance payments to retail pharmacists to fund the costs incurred by them in providing stocks of medicines and medical equipment to service the GMS and payments were made in accordance with that agreement up to 1996, it said.
In June 1996, the IPU and the then minister entered an agreement for the provision of community pharmacy services which introduced the standard community pharmacy contractor's agreement.
In entering into the latter agreement, the IPU said it was relying on representations made to it to the effect that the 1996 agreement did not affect or alter the advance payments of retail pharmacists or community pharmacy contractors.
However, the IPU contended that in December 2002 the minister unilaterally altered the 1996 agreement by ceasing advance payments to retail pharmacists and community pharmacy contractors participating in the GMS. Yesterday, the judge found the 1971 and 1996 agreements did not create contractual obligations.