High Court: Minister for Health joined to consultant contract dispute

About this case:

• Citation:
  [2026] IEHC 364
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Anthony Barr

Delivering judgment for the High Court, Mr Justice Anthony Barr was satisfied that if the consultant’s proceedings were successful, this would represent “a very significant obstacle” to the roll-out of the Sláintecare programme and as such, “the interests of the people of Ireland and the interests of the Government as their representatives are engaged.”

Background

On 5 February 2025, the deputy CEO of the HSE issued a memorandum which stated that HSE surgical hubs would be used for providing services and treatment to public patients only, with patients having private health insurance to be treated as public patients.

The memorandum also stated that under no circumstances could private health insurance claims be made for services provided at a surgical hub.

Mr Manning, a consultant doctor employed by the HSE at Cork University Hospital under the 2008 Consultants Contract Type B, which permitted him access to the hospital’s facilities for the purpose of treating private patients for 20 per cent of the working week, brought judicial review proceedings against the HSE.

The proceedings challenged the legality of the decision contained in the memorandum on grounds inter alia that same constituted a breach of Mr Manning’s constitutional right to earn a livelihood and his rights under his contract of employment with the HSE, breached his legitimate expectations to be permitted to engage in private practice in facilities operated by his employer in the said hospital, and constituted an unjust attack on his property rights.

In opposition the HSE pleaded inter alia that the decision was not one taken by the HSE, but was the implementation of government policy as contained in the Sláintecare Report of 2017, which was formally approved by the Government on 7 December 2022.  

The Minister for Health requested the applicant’s consent to her being joined to the proceedings as a notice party. The applicant refused to consent, leading the Minister to bring an application to the High Court.

The High Court

Having examined the relevant legislative framework and legal principles, Mr Justice Barr explained that the court must look at the pleadings in the action to date to determine whether the Minister had a sufficient interest in the proceedings, such that the outcome of the proceedings would have a direct effect on her.

The judge confirmed that having regard to the statutory framework in place under the Health Acts 1970 and 2004 (as amended), the relationship between the HSE and the Minister was a complex one in which the Minister exerts significant control and direction over the HSE.

As to the issue of whether the decision recorded in the memorandum was truly a decision of the HSE or was, in reality, the implementation of a decision or policy directed by the Minister, Mr Justice Barr considered that this was a question to be determined at trial, though he was satisfied that there was an arguable case to be made that the decision “was in substance and reality a decision of the Minister.”

The court accepted that the provision of a universal public healthcare system and of surgical hubs for the treatment of public-only patients represented a “significant element in the achievement of the ultimate goal set out in the Sláintecare policy.”

In circumstances where approximately 1,435 consultants remain on the relevant version of the 2008 contract, the court was satisfied that if Mr Manning succeeded in his proceedings, this could represent a very significant obstacle to the roll-out of the Sláintecare programme and accordingly, “the interests of the people of Ireland and the interests of the Government as their representatives are engaged.”

Mr Justice Barr was not convinced by the contention on part of Mr Manning’s counsel that where there was an identity of interest between the Minister and the HSE, it would only lead to a duplication of parties to join the Minister to the proceedings.

In that regard, the court considered inter alia Dowling v Minister for Finance [2013] IESC 58, which made clear that once a party’s interests are engaged they have the right to participate in the proceedings notwithstanding that a party already in the action may have identical or similar interests.

The court was satisfied that “as the current proceedings constitute an attack on a significant element of a national health care policy, that is sufficient to entitle the Minister to be heard on the matter” and that no substantive or litigious prejudice would be caused to Mr Manning.

Accepting Mr Manning’s evidence that the documentation exhibited concerning the 2017 Sláintecarereport and the reviews thereof were replete with statements that as far as consultants employed under the 2008 contract were concerned, it would be necessary to negotiate with them before full implementation of the Sláintecare policy could be achieved, the court stated that the legal effect of those statements would be a matter for determination at trial.

Mr Justice Barr recognised that the core issue in the case before the court would turn on the proper construction of the applicant’s contract of employment with the HSE, remarking that “the addition of the Minister as a notice party to the proceedings, will neither strengthen, nor weaken the applicant’s case based on his contract of employment”.

The judge noted that the proceedings before the court, along with an identical set of proceedings brought by another consultant, were not test cases, they had some of the characteristics of a test case due to the fact that the 2008 contract contained identical terms for all consultants employed under it and that the outcome would have a significant effect on the provision of health care in the State.

Conclusion

In the circumstances, and where the joinder of the Minister would not delay the proceedings, the High Court was satisfied that it was appropriate to accede to the Minister’s application to be joined as a notice party.

Brian Manning v The Health Service Executive [2026] IEHC 364