The Supreme Court dismissed appeals by Collooney Pharmacy Ltd and Holly Hill Pharmacy Ltd, holding that health boards could require pharmacies to enter a standard agreement to provide services under the Health Act 1970. The Court did not decide how several disputed termination clauses should operate in a particular case.
The judgment, delivered by McCracken J on 6 July 2005, concerned agreements sent to the pharmacies in August 1996. The pharmacies signed while reserving their position. They argued that the agreements were effectively regulations imposed without the Minister for Finance’s consent, and that several clauses exceeded the boards’ powers. They also challenged a requirement that a supervising pharmacist have at least three years’ community pharmacy experience.
The Court rejected the central argument. It distinguished the agreements from a standard electricity supply contract considered in an earlier case: the pharmacy terms had been negotiated between the Department of Health and a committee of the Irish Pharmaceutical Union, which represented pharmacists. The Court regarded the agreements as arrangements for health boards to meet their statutory duty to provide medicines and appliances, rather than quasi-legislation subject to the statutory process for regulations.
McCracken J said the boards could require an experienced supervising pharmacist for pharmacies participating in the scheme. The requirement did not prevent a pharmacist with less than three years’ experience from working in a participating pharmacy or opening a pharmacy under the Pharmacy Act 1962; it prevented that pharmacist from acting as the supervising pharmacist under the agreement.
The Court also upheld the clauses allowing changes negotiated between the Department and the contractors’ committee to become part of the agreements. It did not rule on the interpretation or validity of clauses dealing with automatic termination after events such as a change in company ownership or a supervising pharmacist’s departure or death. The judgment noted an apparent ambiguity between those provisions and a clause allowing a replacement supervising pharmacist to be nominated within a month. The boards argued the replacement provision applied in all such cases. The Court said that issue did not need to be decided in these proceedings.
The Supreme Court held that the agreements were contracts entered into under section 59(1) of the Health Act 1970 and that the challenged clauses were not shown to exceed the boards’ powers. It dismissed the appeals.