The High Court has dismissed Darastream Ltd’s challenge to the HSE’s refusal to enter into a Community Pharmacy Contractor Agreement for a proposed pharmacy on Quarry Road, Cabra.
The HSE refused the application on 16 April 2018, pending resolution of an ongoing inquiry into two other pharmacies with the same beneficial owner and proposed superintendent pharmacist. The inquiry had not reached a final decision. The HSE’s decision stated that the concerns were disputed and that it was not resolving them at that stage.
Darastream argued that the HSE exceeded its powers under section 59 of the Health Act 1970 and relied on irrelevant considerations. It said the Minister, rather than the HSE, had authority to set conditions for agreements, and challenged the relevance of inquiries into the related pharmacies and the proposed superintendent pharmacist.
Mr Justice Garrett Simons held that section 59 did not require the HSE to contract with any particular pharmacist. The HSE could apply reasonable criteria to secure a high-quality and reliable service, and could consider the financial probity of a company’s beneficial owners. The judge also held that the HSE could take account of the ongoing inquiries and the proposed superintendent pharmacist’s role in the related pharmacies. He stressed that this did not determine the truth of the allegations under inquiry.
The court rejected the fair procedures and transparency challenge. It found that Darastream had been put on notice of the HSE’s concerns about the common superintendent pharmacist and had an opportunity to respond. The judge also noted that some arguments had not been properly pleaded.
The application for judicial review was dismissed in its entirety. The HSE’s refusal remained in place, but its decision left open consideration of a future application after the clause 15 inquiry concluded, subject to its outcome.