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See you in Court, doctor

18 Oct 2016

High Court, Dublin

Dara Gantly on the tendency to take outstanding IR matters to the High Court

Whatever happened to good old-fashioned IR talks between two sides around a highly polished Departmental negotiation table? These days, it seems the High Court is the de rigueur place to resolve disputes — well, certainly in Health.

In less than two weeks’ time (October 25), the High Court is due to hear the case of the Irish Medical Organisation and Gabriel Beecham -v- the Health Service Executive, the Minister for Health and the Minister for Public Expenditure and Reform, Record No. 2016/184SP. The case relates to the living-out allowance of €61.20 per week to NCHDs, or €3,182 per annum.

In 2012, the HSE ceased paying the allowance to all new entrants, but those in receipt of it held it. However, there would be very few still in receipt of the funding now as most would have worked their way through the system since 2012. Furthermore, any NCHD who had a break in service of more than 26 weeks, and returned after February 1, 2012, did not receive it. And the HSE/DoH wonders when we can’t attract young doctors back from abroad?

The allowance forms part of the NCHD contract, which was part of the High Court settlement between IMO and HSE in 2010. It was meant to support the accommodation needs of NCHDs in the grades of Intern, SHO and Registrar, who needed to move to different locations at six-monthly intervals and found it very difficult to source accommodation. But that 2010 case was in turn brought to enforce an earlier settlement in a third High Court case. Spot a pattern here?

Writing to the Minister for Health Simon Harris last week, IMO Assistant IR Director Eric Young complained that in contrast to other State employees, NCHDs would only be given their entitlement when they resorted to the Courts. “It is disturbing that NCHDs have had to bring proceedings on three separate occasions since 2009 to enforce their legal entitlements,” he stated.

The IMO had sought the restoration of the allowance from the Department of Public Expenditure and Reform, following a deal reached last May with firefighters, which restored rent allowances worth €4,500. The IMO’s claim for pay restoration was rejected, however, as the firefighters’ case was apparently “unique”. But since then teachers who are members of the INTO and TUI have also had their honours primary degree allowance — worth €4,918 — also restored for new entrants, and gardaí have seen their rent allowance of €4,017 also restored. So not that unique then. And the cost to restore the allowance for NCHDs? Well, we could be talking about another €15 million a year for the HSE/DoH to find down the sofa.

“It appears surprising that both the Department and DPER would seek to defend the current proceedings in circumstances where the revised arrangements for gardaí, firefighters and teachers are directly analogous to the living-out allowance removed from new entrant doctors in training,” stated Young.

Whatever the outcome, the case has highlighted once again the need for the health authorities to finally undertake a pledge to commence negotiations on a new contract for training doctors made some six years ago.

Also due in the courts — this time expected in January — is the HSE’s appeal of the Employment Appeals Tribunal, which ruled in favour of two hospital consultants, anaesthetist Dr Thomas Hogan and endocrinologist Dr John McDermott, who argued, with the assistance of the IHCA, that the HSE had breached their 2008 employment contracts. The Tribunal found the non-payment of portions of the doctors’ salaries amounted to an unlawful deduction under the Payment of Wages Act and awarded Dr McDermott €14,000 and Dr Hogan almost €100,000. But the HSE is appealing — despite apparent advice by the Attorney General that it has little chance of winning a case. And as we wait, the bill for the non-payment of wages due has climbed from an initial estimated €350 million if all 2,000 consultants were paid, to a worst case scenario of about €700 million.

The IMO also announced at its AGM earlier this year that it would also be taking legal action on behalf of consultant members. Since then, the Organisation has met with senior counsel, and has suggested a sample of two plantiffs from an original group of 40 consultants. And the feedback from their legal team is that they too have quite a strong case.

What is certain, in all of this, is that the HSE’s legal bill is likely to soar. And it is you and me who are ultimately picking up the bill. What folly.

Dara Gantly

Click here to view the full article which appeared in Irish Medical Times: Opinion