Dentists win High Court action over medical card changes

Two dentists have secured High Court injunctions preventing the HSE from implementing changes to the scheme which allows medical card holders avail of dental treatments free of charge pending a full determination of the dispute.

Dentists Martin Reid and James Turner claim that proposed changes to the Dental Treatment Service Scheme (DTSS) outlined in a circular issued last April, will radically confines the services they can offer to medical card holders to emergency services and one oral examination in a 12-month period.

They claim the changes to the DTSS unilaterally vary the terms of the agreement which they claim amounts to a breach of contract by the HSE.

The DTSS was established in 1994 between dentists and the old health boards in order to provide dental care for those on medical card scheme. The agreement was revised in 1999. The HSE has denied the dentist's claims.

In a judgment today Ms Justice Mary Laffoy said she was satisfied that the dentists had made out a case for the the granting of interlocutory injunctions. The injunctions restrain the HSE from giving effect to the circular of April 26 last, issued by the Primary Care Reimbursement Service, which resulted in changes to the DTSS.

The Judge also granted an injunction preventing the HSE from breaching the agreement between dentists and the HSE for the provision of dental services to medical card holders.

The injunctions are to remain in place pending the full hearing of the dentists' action, which the Judge said that given the urgency of the matter should take place as early as possible. The Judge added that the court would endeavour to facilitate the parties with an early trial of the action.

The Judge said she was satisfied that there was a fair issue to be tried. The issue, the Judge said, was if as a matter of contract the HSE can unilaterally vary the terms of the involvement of dentists in the DTSS as it purported to do in the circular.

The Judge said that on the evidence she was further satisfied that if the changes were implemented to the DTSS, pending the final outcome of the action, the dentists would suffer irreparable damage to their practises. Therefore she was satisfied that damages would not be an adequate remedy.

The Judge also added that she was satisfied that the balance of convenience favoured the granting of the injunctions.

The court also held that the nature of the injunctions were not mandatory but are prohibitive. The Judge said that what was being sought here was an order to prevent the HSE from "changing the rules" of the DTSS, pending the full hearing. It was not the case where the HSE was seeking to terminate its contract with either dentist.

Both Mr Reid with a practise in Moville, Co Donegal and Mr Turner, a director of the Irish Dental Association, with a practise in Baltinglass, Co Wicklow expressed their concern for their respective practices' futures if the changes to the DTSS are implemented.

They claim that the changes will have "disastrous consequences" for both dentists who provide services under the scheme and for medical card holders and will have "a dramatic effect on public health."

Mr Turner's practice, which he shares with an associate, earned €95,000 under the DTSS in 2009 representing 30% of the practice's income. Mr Reid's practice in Co Donegal earned €230,000 under the scheme, which accounted for some 68% of his practice's earnings in 2009.

In arguing the dentists are not entitled to the injunctions the HSE has claimed that it has acted properly in implementing the changes to the DTSS. The HSE rejected that it had acted disproportionately, and say they was entitled to make the changes to the scheme.

The changes, it is claimed, were implemented after the Government instructed the HSE to cut its costs dramatically. The court heard that the HSE sought to reduce the amount spent on the DTSS from an estimated €88m in 2010 down to 2008 level of €63m in light of current economic difficulties.

The judgement has been welcomed by the Irish Dental Association.

Fintan Hourihan, CEO of the IDA, said the Association had huge concerns about the implications of the cuts.

"Happily the Court decision supports that view and hopefully this will concentrate minds in the HSE” Hourihan said.