The High Court has restrained the Health Service Executive from giving effect to a circular that changed the Dental Treatment Services Scheme, pending trial of a contract action brought by two dentists.
Miss Justice Laffoy granted the interlocutory injunction on 16 June 2010, after finding that the dentists had raised a fair issue about whether the HSE could unilaterally vary their contractual terms. The order applies pending trial; the judgment does not determine the parties’ underlying contractual dispute.
The dentists, practising in Moville, Co Donegal, and Baltinglass, Co Wicklow, participate in the scheme, which provides dental services without charge to medical card holders. The HSE circular, issued on 26 April 2010, implemented a decision to cap scheme spending at €63 million, the 2008 level. Its measures included limiting reimbursement to one oral examination per eligible person in any 12-month period and suspending prophylaxis treatment until further notice.
The dentists argued that the circular amounted to a unilateral change to their contracts. The HSE denied any breach and relied on terms it said allowed it to take measures to remain within budget. The judge said the dispute turned on construction of the contracts and that a fair question remained even if the HSE’s version of the 1999 terms was correct. She also said the dentists did not have to show at this stage that the circular’s changes were disproportionate, arbitrary or lacking in good faith.
On whether damages would be adequate, the judge considered evidence from the dentists about the effect on their practices. One said scheme income made up about 68% of practice income in 2009, appointments had fallen by two thirds, and the practice risked closure. The other said the scheme accounted for 30% of practice income and that the practice’s viability was in question. The judge found the HSE’s comparison of claims submitted during the first five months of 2010 to be of no probative value at that point, given the time lag in submitting claims.
The court concluded that the practices could suffer irreparable damage before trial and that damages would not be an adequate remedy. It granted the injunction after noting each dentist’s undertaking as to damages and said it would seek to facilitate an early trial. The order restrains the HSE from giving effect, or purporting to give effect, to the circular; it does not decide the final contractual issues.