The State (Boyle) v General Medical Services (Payment) Board

• Jurisdiction: Ireland
• Judge: KEANE J.
• Judgment Date: 01 January 1981
• Neutral Citation: 1981 WJSC-HC 64
• Docket Number: 1980-342S.S
• Court: High Court
• Date: 01 January 1981

1981 WJSC-HC 64

THE HIGH COURT

1980-342S.S

STATE (BOYLE) v. GENERAL MEDICAL SERVICES

STATE SIDE

BETWEEN

THE STATE (AT THE.PROSECUTION OF I.J. BOYLE)

Applicant

and

THE GENERAL MEDICAL SERVICES (PAYMENT) BOARD; THE APPEAL COMMITTEE ESTABLISHED PURSUANT TO ARTICLE 8(l)(b) OP THE HEALTH SERVICES REGULATIONS 1972; THE MINISTER FOR HEALTH AND THE ATTORNEY GENERAL

Respondents

1 JUDGMENT DELIVERED THE 21st DAY OF December, 1980 BY KEANE J.

2 The Prosecutor is a medical doctor. In 1973 he decided to participate in the "choice of doctor" scheme which replaced the dispensary system as the principal means of providing free general medical services to persons eligible for them. In accordance with the procedures established by agreement between the medical profession, the Minister for Health and the representatives of the medical professional bodies upon the implementation of the new scheme", the Prosecutor entered into an agreement in writing with the North Western Health Board on the 15th October, l973, which sets out the conditions under which the Prosecutor was to participate in the scheme. Clause 23 of the agreement provides that

"Where a claim or claims for remuneration submitted by the medical practitioner (i.e. the Prosecutor) appear to indicate that the rate of attendance by him under the services has been excessive the circumstances shall be investigated by a medical officer acting on behalf of the Board, and the medical practitioner shall co-operate in such investigation. If the medical officer so decide ( sic) the circumstances may then be referred for consideration to a group consisting of -"

2 (a) a nominee of the Minister for Health appointed after consultation with the Irish Medical Association and Medical Union

3 (b) a medical officer acting on behalf of the Board (not being the medical officer who investigated the circumstances) and

4 (c) a medical practitioner selected by the Minister from a panel nominated by the Irish Medical Associate, and the Medical Union.

3 After this group has considered the matter and has heard such representations or explanations as the medical practitioner may make to them, it may, by majority vote, decide that no action is required, that the medical practitioner concerned should be warned in relation to his rate of visiting or that a deduction should be made in remuneration due to the medical practitioner. This deduction may include disallowance of fees for past services performed or claimed to have been performed by the medical practitioner as well as, if the group so think fit, a further reduction not exceeding £100. The group shall, within seven days of making its decision, furnish a written report to the medical practitioner of its findings. The medical practitioner shall have a right of appeal to a committee established under Article 8 of the Health Services Regulations, 1972, against a decision of this group and the Board shall act in accordance with the decision of that committee on the appeal and shall not make any such deductions or disallowances pending the decision on the appeal."

4 The procedures prescribed by this paragraph have been operated in two cases in respect of the Prosecutor. On 13th February, 1976, he was visited by an investigating officer, Dr. P. J. Porteous, for the purpose an investigation under Clause 23. Dr. Porteous referred the matter to the investigating group which heard representations from the Prosecutor on 25th November 1976. On that occasion the investigating group recommended a deduction equivalent to a reduction by 10 per cent of the remuneration of the Prosecutor during the period October 1975 to August 1976. The Prosecutor appealed to an appeal committee established under the 1972 Regulations and that body upheld the decision of the investigating group. In the result, a sum of £1,658.93 was recouped from the Prosecutor by way of deductions from subsequent payments of fees to him.

5 On the 18th July, 1978, a further investigation of the Prosecutor's rate of visiting was carried out at the request of the Board, the investigating officer on this occasion being Dr. N. St.J. Hennessy. Dr. Hennessy also decided to refer the matter to an investigating group. He furnished the group with a report which was accompanied by a wealth of statistical detail. This material indicated that the Prosecutor's rate of visiting was significantly higher than the average visiting rate in the area of the Board; that the ratio of "late" visits (i.e. visits made at abnormal hours and therefore entitling the Prosecutor to increased remuneration) in proportion to the total of visits was also significantly higher than the average for the area; and that, in both respects, what appeared to be the excessive rate of visiting had increased since the previous investigation. The Prosecutor was informed by letter of the 29th May, 1979, that Dr Hennessy had referred these matters to the group and was asked to meet the group on the 14th June. Dr Hennessy's report and the statistical material already referred to were enclosed. The Prosecutor replied by letter on the 11th June as follows:

"I acknowledge receipt of yours of May 29th (which only reached me last week), requesting me to attend in Sligo. For the reasons set out hereunder I would submit that the Sligo meeting is premature.

(1) The time given to me to carefully examine the statistics furnished is too short.

(2) The only visit I had from the medical officer was in July 1978. At that time I gave him every co-operation and suggested that he would accompany me to the patients concerned. He did not accept my invitation. Such an investigation is vital to the proper consideration of the position.

(3) I would with respect, refer you to clause 23 of my agreement with the Board. It appears to me, before the matter is referred to the "group" for determination that the medical officer should fully investigate the "circumstances" surrounding, the claims referred to.

Accordingly, I would respectfully request a postponement of the hearing in Sligo until such time as the medical officer fully investigates all the circumstances surrounding the claims.

I might also mention that although the only visit from the medical officer was in July 1978 the claims from July 1978 to February 1979 appear to be in question without any investigation of the circumstances. Surely this is not correct in accordance with clause 23?

Because of the postal strike I am sending this letter to the North Western Health Board with the request that it be got to you immediately because of its urgency. I will also phone the contents to your office.

Please phone me re my application for the adjournment."

6 Notwithstanding this letter, the group met on 14th June as arranged. The Prosecutor attended, accompanied by another doctor, and renewed his application for an adjournment. It was said on behalf of the group that all the requirements of Clause 23 had been complied with and that accordingly it was proposed to proceed with the investigation. The Prosecutor replied that, on legal advice, he would in the circumstances take no part in the proceedings and withdrew. The group then proceeded to consider the matter and its findings were embodied in a report dated the 3rd July, 1979,which was sent to the Prosecutor with a covering letter on the same day. In this report, after summarising what had transpired at the meeting on the 14th June and the material contained in Dr. Hennessy's report, the group indicated their decision that the Prosecutor's remuneration for the period June, 1977 to March 1979 inclusive should be reduced by 30 per cent. In the covering letter, the Prosecutor was reminded of his right of appeal and he indicated in a letter of 16th July his desire to exercise that right without prejudice to his other rights in the matter.

7 The appeal committee (which is an ad hoc body constituted for the purposes of the particular appeal) was duly established and its chairman, Professor M. J. MacCormack, wrote to the Prosecutor on the 27th August 1979 Informing him of his appointment and stating:

"I understand that you have the report of the Medical Officer of the General Medical Services (Payments) Board and also the information provided by him to the investigating group. In the light of these documents, I should be glad if you would send to/me, not later than Friday, 28th September. 1979, the detailed grounds of your appeal if you wish to pursue it, and whether you wish my committee to have an oral hearing or not."

8 The Prosecutor replied by letter of 25th September as follows:-

"Thank you for yours of the 27th ult. and I note the position."

9 Firstly, I beg to request an oral hearing at a venue which might be suitable to hear evidence of the patients I attended. Please bear in mind that these are generally of the itinerant class, and Ballyshannon as venue would be the most suitable for them. Is this possible?

10 Secondly, I intend, with your permission, to be represented by solicitor and counsel, and one colleague. May I please have this permission. Thirdly, the grounds of my appeal are as follows:

11 (1) The investigating medical...