Association of General Practitioners v Minister for Health
|03 March 1995
|1995 WJSC-HC 86
|No. 5507P/1992,[1992 No. 5507P]
|03 March 1995
1995 WJSC-HC 86
THE HIGH COURT
MINISTER OF STATE
Exercise - Method - Validity - Organisations - Cooperation - Procurement - Discretion to select particular organisation - Advantages conferred on such organisation - Whether unlawful delegation of Ministerial functions - Advantages conferred on Irish Medical Organisation - (1992/5507 P - O'Hanlon J. - 3/3/95)
|Association of Medical Practitioners Ltd. v. Minister for Health|
Interests - Advancement - Association - Formation - Objects - Promotion of interests of general practitioners - Cooperation and consultation sought with Minister for Health - Refusal of Minister to consult with plaintiff association - Minister's consultations with larger medical organisation - No constitutional or other right to discussions with Minister - Health Act, 1970, ss. 26, 58 - Constitution of Ireland, 1937, Article 40 - (1992/5507 P - O'Hanlon J. - 3/3/95) - -
|Association of Medical Practitioners Ltd. v. Minister for
HEALTH ACT 1970 S26
HEALTH ACT 1970 S58
HEALTH ACT 1970 S26(1)
HEALTH ACTS 1947 – 1970
HEALTH ACT 1970 S58(1)
EDUCATION CO OF IRELAND LTD V FITZPATRICK
MESKELL V CIE
NATIONAL UNION OF RAILWAYMEN V SULLIVAN
MURPHY V STEWARD
INSPECTOR OF TAXES ASSOCIATION V MIN FOR PUBLIC SERVICE
DUBLIN COLLEGES ACADEMIC STAFF ASSOCIATION V CITY OF DUBLIN VOCATIONALEDUCATION COMMITTEE UNREP HAMILTON 31.7.81
ABBOTT V ITGWU UNREP MCWILLIAM 2.12.80
MCMAHON V MIN FOR FINANCE UNREP KENNY (1962)
BIRKDALE DISTRICT ELECTRIC SUPPLY CO LTD V CORPORATION OF SOUTHPORT
DEVITT V MIN FOR EDUCATION
REIDY V MIN FOR AGRICULTURE UNREP O'HANLON 9.6.89 1989/8/2233
FAKIH V MIN FOR JUSTICE
AG OF HONG KONG V NGUEN SHIU
O'REILLY V MACKMAN
SCHMIDT V SECRETARY OF STATE FOR HOME AFFAIRS
SALEMI V MACKELLAR (NO 2) 1977 137 CLR 396
R V CRIMINAL INJURIES COMPENSATION BOARD
R V BOARD OF VISITORS OF HULL PRISON (NO 2)
R V LIVERPOOL CORPORATION
AMALGAMATED PROPERTY CO V TEXAS BANK
CCSU V MIN FOR CIVIL SERVICE 1984 3 AER 935
WEBB V IRELAND
DUGGAN V AN TAOISEACH
WILEY V REVENUE COMMISSIONERS
COMBE V COMBE
CENTRAL LONDON PROPERTY TRUST LTD V HIGH TREES HOUSE LTD
INSPECTOR OF TAXES ASSOCIATION V MIN FOR PUBLIC SERVICE UNREP MURPHY 24.3.83 1983/10/2838
HALSBURYS LAWS OF ENGLAND 4ED V16 PARA 1071
Judgment delivered by O'Hanlon J., the 3rd day of March, 1995
The first-named Plaintiff in these proceedings is a company limited by guarantee incorporated in the State, and having as one of its objects the promotion of the interests of doctors engaged in General Medical Practice. The second-named Plaintiff is a director of the company and she and the remaining Plaintiffs are doctor-members of the company.
The second-named Plaintiff said in evidence that there are now 309 doctors registered as members, out of a total of about 1,600 general practitioners in the State.
In these proceedings the Plaintiffs claim that the Minister for Health in exercising functions vested in him by the provisions of Sec. 26 of the Health Act, 1970, in connection with the provision by the Health Boards of general practitioner medical and surgical services for eligible persons without charge, should do so in consultation with the first-named Plaintiff, as the body chosen by its members to represent them in these matters.
The Minister formerly dealt with the Medical Union and the Irish Medical Association while these were the sole bodies representing the medical profession in connection with their terms of employment, and after a merger had taken place between them in the mid-1980s to form the present Irish Medical Organisation he continued to deal with that body as representing the great proportion of doctors engaged in general practice within the State. While the Minister has had informal contacts with the first-named Plaintiff since its incorporation in 1988, he is not prepared to concede that he is under any legal obligation to consult with the Association when conditions of service of doctors working for the Health Boards are under review.
He has gone further, and has agreed to the incorporation in a recent agreement concluded between IMO and the Department of Health on the 28th July 1988, that-
Health Boards will not make contracts with General Practitioners for the supply of GMS services on terms other than those provided for in this agreement except with the specific agreement of the IMO
- and there are other provisions in the said agreement giving the IMO representation on an interview board and on a tribunal which can deal with specific problems arising in the course of medical practice under the Boards, as well as other important functions of an ongoing nature.
The basis for the claim now put forward on behalf of the Plaintiffs may be stated in summary terms as follows:-
(1) They claim that they have rights derived from the Irish Constitution to be represented by the association of their choice when important matters affecting their terms and conditions of employment under the Health Boards fall to be decided.
(2) They claim that the Minister is given important statutory functions to perform under the provisions of Sec. 26 of the Health Act, 1970in relation to the provision by the Health Boards of General Medical Services under Sec. 58 of the Act and that he has acted in an illegal and ultra vires manner by entering into an agreement with the Irish Medical Organisation whereby he has fettered his discretion, tied his hands, and in effect handed over a large measure of control of the manner in which he is to exercise those functions to an outside body - the IMO - in some important respects.
(3) They claim that the refusal of the Minister to consult the second to the eight-named Plaintiffs, either personally or through the first-named Plaintiff as part of the review procedure of the General Medical Services contract was and is contrary to fair procedures and the legitimate expectation of the Plaintiffs and each of them.
The relevant statutory provisions are as follows:- Health Act, 1970
Sec. 26(1) A health board may, in accordance with such conditions (which may include provision for superannuation) as may be specified by the Minister, make and carry out an arrangement with a person or body to provide services under the Health Acts, 1947to 1970, for persons eligible for such service.
Sec. 58(1) A health board shall make available without charge a general practitioner medical and surgical service for persons with full eligibility.
Accordingly, in relation to the provision of free medical services by general practitioners for eligible persons under the Act, the procedure followed is that the several Health Boards enter into contracts with the doctors, but the terms and conditions to be offered to the doctors are determined beforehand by the Minister so that uniformity is attained on a nation-wide basis.
The Act imposes no express obligation on the Minister to consult the medical profession or their representatives or anyone else before deciding on the appropriate terms and conditions, but the Minister has at all times adopted the very prudent course of engaging in lengthy discussions between representatives of the Department of Health and the doctors before completing the blueprint on which the Health Boards are to act.
While the Irish Medical Association and the Medical Union represented the doctors, and each commanded the support of a very substantial proportion of the profession, both organisations were represented at the negotiating table, and also in the course of arbitration proceedings. Following upon the merger of the two bodies, the IMO continued to represent the large majority of all general practitioners in the country. Evidence was given by George MacNeice, Chief Executive of the IMO, to the effect that the general practitioner membership of the organisation stood at 1,144 in 1988 (when a ballot was taken on new terms of employment) and at 1,230 in the following year, 1989, when a second ballot was taken. All the said members were participants in the General Medical Services Scheme. Mr. Coffey, Assistant Principal Officer in the Department of Health gave the number of participating doctors as of September, 1994, as 1,645.
In relation to the first of the three legal grounds referred to previously, on which the Plaintiffs rely in support of their claim, Mr. Durcan for the Plaintiffs placed reliance on the decisions of the Supreme Court in Education Company of Ireland Ltd. v. Fitzpatrick & Others, , and in Meskell v. CIE, .
In Fitzpatrick, Kingsmill Moore J. said:
In National Union of Railwaymen & Ors v. Sullivan, , Murnaghan J., giving the judgment of the Court, emphasised at p.102 the constitutional right of the citizen to a free choice of the persons with whom he would associate and the decision seems to me to establish that a person shall not be coerced, at any rate by legislative action, into joining an association which he is not willing to join. Accordingly I hold that there is an implicit guarantee in the Constitution that citizens shall not be coerced to join associations or unions against their will.
In Meskill, Walsh J. said:
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