O'Flynn v Mid-Western Health Board

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: HEDERMAN J.,GRIFFIN J.,McCarthy J.
• Judgment Date: 26 February 1991
• Neutral Citation: 1991 WJSC-SC 1098
• Docket Number: 318/89,[S.C. No. 318 of 1989]
• Date: 26 February 1991

1991 WJSC-SC 1098

THE SUPREME COURT

Finlay C.J.

Griffin J.

Hederman J.

McCarthy J.

O'Flaherty J.

318/89

O'FLYNN v. MID WESTERN HEALTH BOARD

BETWEEN:-

MICHAEL O'FLYNN AND GERALD O'REGAN

Respondents/

Applicants

and

THE MID WESTERN HEALTH BOARD, THE MINISTER FOR HEALTH,MARTIN GIBLIN, HENRY FINNEGAN, CORMAC McNAMARA, SHEILA RYAN AND ANTHONYDE SOUZA

Respondents/

Appellants

Citations:

HEALTH SERVICES REGS 1972 SI 88/1972 ART 5

HEALTH ACT 1870 S58

HEALTH ACT 1970 S26(1)

HEALTH SERVICES REGS 1972 SI 88/1972 ART 8

HEALTH SERVICES REGS 1972 SI 88/1972 ART 8(1)(a)

HEALTH SERVICES REGS 1972 SI 88/1972 ART 5(1)(a)

DILLON V DUNNES STORES LTD 1966 IR 397

RSC O.84 r21

FUREY, STATE V MIN DEFENCE & AG 1988 ILRM 89

Synopsis:

EMPLOYMENT

Terms

Breach - Allegation - Medical practitioner - Health board - Complaint received - Alleged abuse of General Medical Service - Denial of practitioner - Enquiry - Fair procedures - Particulars of alleged misconduct - Refusal of chief executive officer to furnish particulars - Complaint referred to investigating committee - Judicial review - Delay - Health Service Regulations, 1972 (S.I. No. 88), art. 78 - Rules of the Superior Courts 1986, order, 84, r. 21 - (318/89 - Supreme Court - 26/2/91)1991 2 I.R. 223

|O'Flynn v. Mid-Western Health Board|

DELAY

Judicial review

Certiorari - Proceedings - Commencement - Eight months - Application - Hearing - Issue of applicant's delay not raised by respondent - Order of certiorari quashed on appeal on ground of delay - (318/89 - Supreme Court - 26/2/91) - [1991] 2 I.R. 223

|O'Flynn v. Mid-Western Health Board|

JUDICIAL REVIEW

Time limit

Certiorari - Delay - Eight months - Application - Hearing - Issue of applicant's delay not raised by respondent - Order of certiorari quashed on appeal on ground of delay - (318/89 - Supreme Court - 26/2/91) - [1991] 2 I.R. 223

|O'Flynn v. Mid-Western Health Board|

PROFESSIONS

Medical practitioner

Contract - Terms - Breach - Complaint - General Medical Service - Alleged abuse - Complaint notified by chief executive officer of respondent board - Failure to furnish particulars - Appointment of investigating committee - Application for order of certiorari made more than eight months after appointment - Order quashed on appeal - (318/89 - Supreme Court - 26/2/91) - [1991] 2 I.R. 223

|O'Flynn v. Mid-Western Health Board|

1 JUDGMENT delivered the 26th day of February 1991by HEDERMAN J. [Finlay C.J , O'Flaherty J., Griffin J. agr.]

2 Dr. Michael O'Flynn and Dr. Gerald O'Regan (the "first doctor" and the "second doctor") are general medical practitioners who carry on their partnership practice in the city of Limerick and have done so since the 26th November, 1981. As such they provide general practitioner services on behalf of the Mid Western Health Board (the "Board") to eligible patients under the general medical services scheme. These servicesare provided under the terms of an agreement in standard form which they each entered into with the Board. The Health Service Regulations 1972 (S.I. No. 88 of 1972) specify the manner in which health boards provide general practitioner services as well as drugs, medicine, medical and surgical appliances under the Health Act, 1970. Article 5 of these regulations provides that the general practitioner services provided for under s. 58 of the Act should be made available through arrangements made by the health boards by way of agreements with registered medical practitioners under s. 26(1) of the Act in accordance with conditions specified by the Minister under that section. Paragraph 24 in the schedule to the standard form of agreement provided, in so far as is relevant to these proceedings, as follows.

"Where the chief executive officer of the board has reason to believe that a medical practitioner has failed to comply with any of the terms of the agreement, he shall notify the medical practitioner of the reasons forsuch belief by registered post and inform him that he will consider any representations in regard to the matter which may be received by him from the medical practitioner within one month of the issue of the notification. ...............

The chief executive officer may, after consideration of any representations which the medical practitioner may make in regard to the matter ....... (b) arrange for the referral of the matter for investigation by a committee established under article 8 of the Health Services Regulations, 1972........"

3 At all times material to these proceedings the functions of the chief executive officer of the Board were performed by the deputy chief executive officer, Mr. J. Paul Robinson ("Mr. Robinson") and no point arises on his entitlement to perform the functions of the chief executive officer.

4 The Minister for Health and the other named parties (who were members of the committee set up by the Minister under article 8) informed the Court that they would not take any part in the appeal but would abide the result thereof.

5 On or about the 13th June, 1986 Mrs. Bernie Meade made a verbal complaint concerning the manner in which a firm of chemists in Limerick, Messrs Corbetts Chemists Limited ("the chemists") on the one hand and the doctors on the other were conducting business relative to the agreements which had been entered into by the chemists and by the Board. On the 14th June, 1986 the complaint was reduced to writing under the name of Mrs. Meade and countersigned by her husband. The letter included prescription forms which Mrs. Meade alleged were examples of the allegedly false transactions between the doctors and thechemists.

6 During the period 17th June, 1986 to the 23rd October, 1986 the Board investigated the allegations and sought to interview persons in whose names the prescriptions were made out. On the 23rd October, 1986 the Board referred the matter to the Garda Siochana and on the 2nd September, 1987 the Garda Siochana informed the Board that the Director of Public Prosecutions had decided that there should be noprosecution in respect of the allegations.

7 On the 30th October, 1987 a registered letter was sent to each of the doctors by the Board's chief executive officer. Each letter was in identical terms and was as follows:-

"Notification under Clause 24 of your agreement with the Mid-Western Health Board"

8 The Mid-Western Health Board have received a complaint relative to the manner in which you have carried out your duties under the Contract entered into between the Board and your good self on the 14th day of December, 1982. The aforementioned agreement provides in paragraph24;

"Where the Chief Executive Officer has reason to believe that a Medical Practitioner has failed to comply with any of the terms of the agreement he shall notify the Medical Practitioner of the reasons for such belief by registered post and inform him that he will consider any representations in regard to the matter which may be received by him from the Medical Practitioner within one month of thenotification........"

9 Your attention is also drawn to the remainder of the Clause and I enclose herewith for your information a copy of your agreement with theBoard.

10 The nature of the complaint is as follows:-

11 It is alleged that for a period up to May, 1986 you had from time to time purchased goods on credit from Corbett Chemists Limited, 56 WilliamStreet,Limerick. Messrs Corbetts have as you know a contractual arrangement with the Board in connection with supply of medicines under the G.M.S. Scheme. It is further alleged these purchases were not paid for in cash but were the subject of an arrangement for payment in a manner inconsistent with your Contract.

12 It is further alleged that each month one of the employees of the aforementioned company (a Mrs. Helen Moore) would collect from your surgery forms filled in for dispensing of drugs to your patients. The allegation is that drugs on these forms were claimed by the firm even though these drugs had not been dispensed. It is further claimed that the amount so claimed was set off against your personal account.

13 The allegations received relate to a period ending in May, 1986.

14 The matter has been delayed as the allegations were first investigated by the Garda Siochana who have now informed the Mid-Western Health Board that the D.P.P. has decided not to prosecute anybody on foot of the complaint. You will of course appreciate that a serious complaint of this nature must be examined by the Board on a civil and contractual basis notwithstanding the D.P.P.

15 You are therefore invited, in accordance with Clause 24 of your contract, to make any representations in this matter to me within onemonth."

16 On the 13th November, 1987, the first doctor replied as follows:-

"I refer to your letter of 30th October, 1987 andI totally reject all the allegations made therein.

It is alleged that I "purchased goods on credit" from Corbetts Chemist Limited, as you are not specific about the nature of the goods involved I presume that you refer to non-medical items. I have never bought any non-medical items from that company. Therefore an "arrangement for payment" does not arise. I do have an account for medical goods which I require for practice purposes. This account is settled by practice cheque. On the rare occasion I have paid cash for small medical items e.g. throat pastilles, cough syrupsetc.

Mrs. Helen Moore calls to this practice, from time to time, in the course of her duties as an employee of Corbetts Chemist Limited. Other employees of the same company also call but I am not familiar with their names. It is not clear from your letter what type of form Mrs. Moore is supposed to have collected from our surgery but certainly she never collected any form for the purpose alleged. Furthermore I have never had a personal account with Corbetts Chemist Limited, or for that matter with any Chemist.

There is absolutely no basis...