Martin Finnerty (applicant) v Western Health Board (respondent).

Judicial Review - Entry to GMS scheme - Circular containing entry criteria requiring full time practice either in a particular centre or in that centre and not more than one other local centre - Applicant having second surgery in another town - Whether that town was "local".

The High Court (before Miss Justice Carroll); judgment delivered 5 October 1998.

The respondent was entitled to refuse entry to the GMS scheme at a particular centre to the applicant on the grounds that he practised in another centre which was not local and therefore did not come within the criteria for entry to the scheme.

Miss Justice Carroll so held in refusing to quash the respondent's decision.

Michael McDowell SC and Roderick Horan BL for the applicant. Diarmuid McGuinness SC and Geraldine M. Glynn BL for the respondent.

Miss Justice Carroll said that the applicant was a registered medical practitioner. In 1988 he commenced medical practice in Ballinrobe, Co Mayo, and he notified the respondent of this in order to establish his eligibility for the purpose of gaining entry to the General Medical Services (GMS) scheme.

Entry to this scheme was governed by Circular 9/81 which provided at paragraph 4 that a doctor who had completed five years continuous service in full time general practice at a particular centre might apply for a GMS contract at that centre. It further provided that practice at a particular centre might be construed as including cases in which a doctor practises at not more than one other local centre. Pursuant to Circular 13/88, entry to the GMS scheme under the five year rule was restricted to medical practitioners who had established themselves on or before 1 January 1989.

In 1991, the applicant advertised in the Connaught Tribune that he had commenced practice at a surgery in Athenry which is 30 miles from Ballinrobe. The advertisement stated that surgery hours were from 11.30 a.m. to 1.30 p.m. and from 4 p.m. to 6.30 p.m. The practice had originally belonged to the applicant's father. The applicant had expected that another doctor would remain in practice there, but in fact this doctor had left. The result was that the applicant attended in Athenry on an irregular basis, and continued to practice in Ballinrobe, attending there for a minimum of 52 hours per week.

After some correspondence with the programme manager of the respondent, he was informed in July 1991 that since he was now practising in Athenry he was no longer eligible for entry into the GMS scheme. After some further correspondence, the programme manager wrote a letter to the same effect in February 1992.

After the expiration of five years from 1 January 1989, the applicant applied by letter in December 1993 to enter the GMS scheme under the five year rule. The programme manager recommended to the CEO of the respondent that the applicant should not be admitted to the scheme. One of the grounds for this recommendation was that he did not meet the criteria of Circular 9/81. This was the ground on which the CEO approved the recommendation and was the ground stated in the letter to the applicant refusing his application.

The applicant took up the matter with the CEO by a letter in May 1995 and asked for a review. At this stage the CEO was fully aware of all of the applicant's arguments. In May 1995, the CEO wrote that the original decision stood and this was re-iterated in July 1995.

Miss Justice Carroll said that there were no grounds for holding that the respondent had failed to consider the applicant's application properly or that it had taken irrelevant matters into account. The programme manager had mentioned an additional extraneous matter but it had not formed the basis for the CEO's decision. When the CEO first communicated the refusal, he was not aware of all of the applicant's arguments, but that was rectified by the time the refusal was confirmed in May 1995. The decision was not unreasonable in the sense of the test outlined in State (Keegan) v Star- dust (Victims) Compensation Tribunal [1986] IR 643. In short, the applicant failed on all substantive grounds. The applicant had submitted that the decision which fell to be made by the respondent was a mixed question of law and fact, i.e. the meaning of full-time practice. Miss Justice Carroll ruled that the only question had been whether Athenry could be considered "local" and the CEO had answered this question.

Miss Justice Carroll went on to say that the applicant's case also failed on the grounds of delay. The final decision was made on 29 May 1995, and the applicant engaged a solicitor within a short time thereafter. However, he had not issued proceedings within six months and there was no good reason for extending that period.

Solicitors: O'Dowd Lyster Forde & Co (Boyle) for the applicant; William B. Glynn (Galway) for the respondent.