A High Court declaration yesterday that five community pharmacists are entitled to the benefit of advance payments under the General Medical Services (GMS) scheme for "as long as their contracts remain in force" could have implications for up to 900 other pharmacists with similar contracts.
Mr Justice Frank Clarke made the declaration in proceedings in which the Irish Pharmaceutical Union (IPU) and the five pharmacists had challenged the decision of the minister for health of December 2002 to stop such advance payments.
While the judge last month dismissed the IPU claim that it had a contractual right, under agreements of 1971 and 1997 to have advance payments made to pharmacists under the GMS, he also found that the Minister's decision to stop the payments constituted an "unlawful variation" of agreed terms of standard-form contracts between the five individual pharmacists and the HSE.
He made formal declarations that, under a clause of the Community Pharmacy Contractors Agreement, the five pharmacists were entitled to the benefits of advance payments, on the basis of agreements between the Minister and IPU, for "as long as their contracts remain in force". He also granted a declaration that the Minister's decision of December 2002, to discontinue advance payments amounted to "a unilateral and unlawful variation" of the terms of the contracts.
He awarded the IPU and the individual pharmacists costs for four days of the six-day hearing. Costs relating to damages claims in the case which were not ultimately advanced were awarded to the Minister.
Earlier, Mark Sanfey SC, for the Minister, in making submissions on the nature of the declarations to be made, argued the proceedings were not "a class action" in relation to the contractual entitlements of pharmacists.
However, he added, the Minister would "not be blind" to the implications of the court's findings for some 900 pharmacists who had signed similar contracts.
The court had made clear the right to advance payments was accompanied by a right to terminate the contract, he said.
Brian O'Moore SC, for the IPU and the five pharmacists, said the proceedings were "akin to a class action" and the court had decided the pharmacists were entitled to advance payments in accordance with terms agreed between the Minister and the union. The interests of the IPU and individual pharmacists were conjoined.
Mr Justice Clarke said the issues raised by the IPU and pharmacists in the case were "inextricably linked". The underlying question was whether the plaintiffs had to come to court to get what they did not have and the answer to that was yes, he said.
On that basis, the plaintiffs were entitled to their costs, he ruled. In the action, the IPU claimed an agreement was entered into in 1971 to secure the participation of retail pharmacists in the reorganised GMS scheme and payments were made in accordance with that agreement up to 1996, it said.
In June 1996, the IPU and the 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, in December 2002, the union contended the Minister unilaterally altered the 1996 agreement by ceasing payment of advances to retail pharmacists and community pharmacy contractors participating in the GMS.
