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2026 IEHC 364

THE HIGH COURT [2026] IEHC 364 [Record No. 2025/592JR] [Record no. 2025/593 JR] BETWEEN BRIAN MANNING APPLICANT AND THE HEALTH SERVICE EXECUTIVE RESPONDENT JUDGMENT of Mr. Justice Barr delivered electronically on the 12th day of June

  1. Introduction
  2. This judgment concerns an application by the Minister for Health (hereinafter “the Minister”) to be joined as a notice party to the judicial review proceedings brought by the applicant against the respondent. 2
  3. The substantive issues between the applicant and the respondent can be summarised in the following way: the applicant is a consultant doctor employed by the respondent at Cork University Hospital. He is employed under what is known as the 2008 Consultants Contract Type B, which permits him to have access to the hospital’s facilities for the purpose of treating private patients for 20% of the working week. For the remaining 80% of the time he treats public patients, for which he is paid a salary by the respondent.
  4. The respondent is the body established pursuant to the Health Act 2004, which has responsibility for the provision of public health care in the State.
  5. The core dispute between the parties is that on 5 February 2025 the deputy CEO of the respondent issued a memorandum in which it was stated that HSE surgical hubs would be used for providing services/treatment to public patients only and, while patients with private health insurance could receive treatment in the surgical hubs, they would be treated as public patients. The memorandum stated that under no circumstances could any private health insurance claims be made for services provided in a surgical hub.
  6. In these proceedings the applicant challenges the legality of the decision contained in the memorandum on the following grounds: that the said decision is in breach of the applicant's rights under his contract of employment with the respondent; that the decision breaches his constitutional right to earn a livelihood; that the decision has breached his legitimate expectations to be permitted to engage in private practice in facilities operated by his employer in the said hospital: that the said decision amounts to an unjust attack on the applicant's property rights as guaranteed by the Constitution; and he seeks a declaration that the respondent has acted ultra vires in making the said decision. By way of reliefs the applicant has sought an order of certiorari quashing the 3 purported decision and an order of mandamus requiring the respondent to permit the applicant to engage in private practice in facilities operated by the respondent at the hospital.
  7. In its statement of opposition, the respondent has pleaded, inter alia, that the decision communicated in the memorandum was not a decision taken by the respondent, but was the implementation of government policy as contained in the Sláintecare Report of 2017, which was formally approved by the Government at a cabinet meeting on 7 December
  9. The Minister requested the applicant to consent to her being joined as a notice party to the proceedings. The applicant did not consent to that being done; hence the need for the present application by the Minister seeking to be joined to the proceedings as a notice party. Evidence on behalf of the Minister.
  10. The evidence on behalf of the Minister was contained in the affidavits sworn by Mr. Derek Tierney, Assistant Secretary and Head of Health Infrastructure in the Department of Health. He accepted that the test to determine whether a party should be joined as a notice party to proceedings, was whether the relevant party was “directly affected” by the proceedings.
  11. Mr. Tierney submitted that when one looked at the purpose of surgical hubs and their part in the overall Sláintecare programme, it was clear that the Minister was directly affected by these proceedings. He explained that surgical hubs were intended to be dedicated elective units, separate from acute hospitals, that focus on day case surgery and minor operations. He stated that it was planned to open nine surgical hubs 4 across the country, with each hub to deliver 10,000 day case surgeries and minor procedures and 18,500 outpatient consultations annually.
  12. He stated that the establishment of surgical hubs was the first step in a broader policy of establishing designated elective care hospitals. That had been a policy objective of the Government and of the Minister since 7 December
  13. He stated that the policy in relation to surgical hubs had been affirmed in the Programme for Government
  15. Mr. Tierney explained that surgical hubs had their genesis in the Sláintecare report of 2017 and were also contained in the Preliminary Business Case that was put before the Government when it made its decision to adopt Sláintecare on 7 December
  16. He stated that the provision of surgical hubs was integral to the broader Sláintecare policy of providing a national health care system that would be open to all people and would be based on need rather than on ability to pay.
  17. He stated that the impugned memorandum of 5 February 2025, which had been issued by the deputy CEO of the respondent, had its genesis in a series of emails that had preceded it. On 29 January 2025, an email had been sent by Ms. Eileen Rudden, Assistant National Director, Access and Integration HSE, noting her understanding that surgical hubs were to be for public patients only. That email had stated as follows: “Dear Derek, We recently received a query from SJH (St James's Hospital) in relation to private patients using the HSE surgical hubs South Dublin. We confirmed to SJH that the Hubs are for public patients only and, while patients with private health insurance can receive treatment in the Hubs, they will be treated as public patients. We also confirmed that private health insurance claims cannot 5 be made for services provided in the Hub. SJH has requested this confirmation in writing so there is no ambiguity surrounding this matter and so that it can be communicated to the consultants that they do not charge their fee to private insurers. As previously advised, we propose on issuing a communication from Damien McCallion to the REOs reiterating that surgical hubs are public facilities for public patients only in line with the Sláintecare vision of universal health for everyone resulting in equal access to health services based on individual patient need. I would welcome your observations on this approach to ensure HSE direction is in alignment with the Elective Care Programme core principles.”
  18. Mr. Tierney stated that he responded to that email in the following way: “Hi Eileen, Yes, you are correct. This is the policy direction – Surgical Hubs and Electives for providing services/treatment to/as public patients.”
  19. As already noted, on 5 February 2025, Mr. McCallion issued the impugned memorandum. The relevant parts of that memorandum are as follows: “It is important to reiterate that the HSE Surgical Hubs are for providing services/treatment to public patients only and, while patients with private health insurance can receive treatment in the Hubs, they will be treated as public patients. 6 Under no circumstances can any private health insurance claims be made for services provided in the Surgical Hub. This is a policy decision in line with Sláintecare vision of universal health for everyone resulting in equal access to health services based on individual patient need and is aligned with the Elective Care Programme’s core principles. I am asking each Regional Executive Officer (REO), hospital CEOs and Clinical Directors to ensure all relevant staff are briefed on this policy and there are no variations permitted.”
  20. Mr. Tierney stated that it was an integral part of the Sláintecare programme that there should be universal access to public health hospitals. He stated that the provision of surgical hubs was the first significant step towards achievement of that goal. He stated that on 26 February 2025, the Minister had made a statement to Dáil Éireann in relation to the Sláintecare policy, which included the following: “The Government and I are fully committed to a vision of universal health and social care service where people have access to services based on need and not on their ability to pay. The full implementation of Sláintecare remains one of the most significant reform programmes ever implemented by the State.”
  21. Mr. Tierney noted that in the original Sláintecare report of 2017 and in a review report of 2019, it was recognised that the removal of private practice from public hospitals would have to be done on a gradual phased basis. The first step in the phased removal of private care from public hospitals was the introduction of the public only consultant contract (POCC) in
  22. This contract precluded consultants from conducting private practice in public hospitals. The next step in the withdrawal of private care from public hospitals was the introduction of the newly developed surgical hubs as advised in the impugned memorandum of 5 February
  23. 7
  24. Mr. Tierney stated that the present proceedings would have a very significant effect on the roll-out of the Sláintecare programme because the applicant was one of more than 1,400 consultants who are currently contracted by the HSE pursuant to the Consultants Contract of 2008, which permits consultants to engage in private practice in the relevant hospital for 20% of their working time. Mr. Tierney stated that if the applicant was successful in the within proceedings, that will significantly affect the introduction of surgical hubs and elective hospitals and more fundamentally, would have the potential to significantly undermine the full implementation of the Sláintecare programme.
  25. He stated that surgical hubs were intended as an important step in the process leading to the eventual removal of private practice from public hospitals. In such circumstances, a judicial determination in relation to the proposed restrictions on private care in surgical hubs was liable to affect the public health care system as a whole. He stated that the Minister for Health was ultimately responsible for the health and social care system in the State. The HSE acts in accordance with the policy directives of the Minister.
  26. Mr. Tierney submitted that in these circumstances the Minister had a vital and substantial interest in the present proceedings. She stood to be uniquely affected by any judgment that would be handed down. Accordingly, it was his belief that the Minister ought to be heard in the proceedings. He stated that as the Minister was directly affected by the proceedings in the manner envisaged by O.84, r.22

(2), it was appropriate to join the Minister into the proceedings.
  1. In his second affidavit sworn on 20 January 2026, Mr. Tierney stated that the applicant appeared to misunderstand the nature of the relationship between the Minister and the respondent. He stated that under the statutory provisions contained in the Health 8 Acts 1970 and 2004, as amended, the HSE was obliged to exercise its functions having regard to the policies and objectives set by the Government or by any minister of the Government. The respondent’s funding was subject to ministerial approval and control, and its annual service plan was subject to ministerial authorisation. This relationship followed from the principle of democratic accountability, with the Minister ultimately being answerable to the Oireachtas for the overall delivery of health services in the State.
  2. He stated that Sláintecare and the commitment to public only care in public hospitals represented a fundamental feature of the Government’s and the Minister's health care policy for the State, to which the respondent was obliged to give effect.
  3. Insofar as it had been asserted that because there was reference to the surgical hubs being modelled on the surgical hub already in place in Tallaght Hospital, which catered for both public and private patients, and that that in some way indicated that surgical hubs were not intended to be restricted for use by public patients only; Mr. Tierney stated that that reference was merely to clinical design and operational features of the Tallaght Hospital facility which was already in place. He stated that the Government decision taken in December 2022, had been predicated on a Preliminary Business Case that had expressly provided that elective care centres would be for public patients only.
  4. He reiterated that the outcome of the present proceedings had the potential to significantly adversely affect the implementation of Sláintecare and for that reason, it was submitted that the Minister had a direct interest in the proceedings.
  5. Mr. Tierney stated that the Minister had chosen, as part of a phased approach, the removal of private care from public hospitals, to reserve care in surgical hubs and elective care centres to public patients only. Having so determined, and with that policy 9 objective now clearly impugned in these proceedings, it was submitted that it was manifestly the case that the Minister had a direct interest in opposing the proceedings.
  6. It was asserted that the Minister was wholly responsible for the implementation of Government health policy, with the respondent being responsible for delivering services in line with such policies and objectives. The respondent was not only obliged to follow formal directions given pursuant to s.10 of the 2004 Act, it also had to implement general policy directions as given by the Minister from time to time. It was submitted that where a very significant policy was directly impugned in legal proceedings, the Minister had a direct interest in opposing those proceedings. He stated that the close interrelationship between the Government, the Minister for Health and the respondent in the delivery of health policy in the State, was evident from the affidavits that have been filed in the proceedings to date.
  7. Mr. Tierney submitted that for the reasons outlined above the Minister should be joined to the proceedings. Submissions on behalf of the Applicant.
  8. A replying affidavit was sworn by the applicant on 19th December
  9. In it he stated that he was employed as a consultant in Cork University Hospital. His contract of employment was the 2008 Consultant Contract, Type B.
  10. The applicant accepted that the respondent was obliged to comply with formal directions issued by the Minister pursuant to s.10 of the Health Act
  11. However, he stated that there was no evidence that any such formal direction had been given by the Minister. He also accepted that in discharging its statutory functions the respondent must have regard to the policies of the Minister for Health. 10
  12. He stated that the essential distinction was that while the Minister for Health on behalf of the Government would set policy at a high level, it was the respondent which implemented decisions within the health service itself. He stated that his contract of employment was with the respondent. The decision that was impugned was a decision that emanated from the deputy CEO of the respondent, which purported to introduce surgical hubs into the hospital where he was employed and in which he would only be permitted to treat public patients.
  13. The applicant pointed out that in the original 2017 report on Sláintecare and in the subsequent implementation reports thereafter, there were numerous references to the fact that it would be necessary when implementing the policy to negotiate changes with those doctors who had remained on the old contracts, being the 2008 contracts, types A and B. He cited various reports which made it clear that the authors thereof had recognised that changes to such contracts could only be done by way of negotiation. He stated that in these circumstances, the migration from the old model which allowed for the treatment of private patients in public hospitals to the establishment of public only hospitals would happen in an organic way, with newly appointed consultants only being offered the 2023 contract, which only provided for treatment of public patients; with those consultants on the older contracts continuing under their original contracts until they retired, or elected to move to the 2023 contract. He stated that in these circumstances, the number of consultants on the 2008 contract would diminish over time.
  14. The applicant stated that the documentation that had been exhibited to Mr. Tierney's affidavits, did not establish that the surgical hubs were to be for public patients only. In particular, it was clearly stated that the surgical hubs which were intended to be introduced were to be modelled on the surgical hub known as the Reeves Centre 11 attached to Tallaght Hospital, which catered for both public and private patients. It was submitted therefore that the new hubs were not intended to be for public patients only.
  15. The applicant gave the breakdown of consultant contracts. He stated that as of 25 May 2025, there were a total of 4,784 consultants employed in the State. Of those, 2,970 were the holders of the 2023 Consultant Contract (POCC) and 379 were on the 2008 Consultant Contract, Type A. Therefore, 3,349, being approximately 70% of consultants, were precluded from engaging in private practice in public hospitals. This meant that the remaining 1,435 consultants, being approximately 30% of consultants, are permitted to engage in private practice in public hospitals.
  16. The applicant stated that he believed that the Minister did not have a direct interest in the proceedings for the following reasons: the Minister was not charged with the statutory function of delivering or arranging the delivery of health or personal care services; that function rested on the respondent. Secondly, while the respondent was obliged to comply with directions issued by the Minister under s.10 of the 2004 Act, no such direction had issued in the present case. Thirdly, while the respondent was obliged to have regard to the Minister's policies in discharging its statutory functions, those functions remained the respondent's functions. It was for the respondent to decide how to discharge its statutory functions, including making arrangements for the provision of public and private inpatient services under the provisions of the Health Act 1970, as amended, in surgical hubs.
  17. The applicant stated that for these reasons, the Minister had no direct involvement in the provision of healthcare in surgical hubs. The Minister had an indirect involvement only, through the respondent. By the same token, the Minister had no direct interest in the proceedings; she had at the very most, an indirect interest. He stated that that was not sufficient to justify joinder of the Minister into the proceedings. 12 The Position of the Respondent.
  18. While the respondent did not file any affidavit directly relating to this application, the court had the benefit of the affidavit of verification that had been sworn by Mr. McCallion on behalf of the respondent in the substantive proceedings. In that affidavit and in the statement of opposition that had been filed on behalf of the respondent, it had been clearly stated that the decision recorded in the impugned memorandum, was not a decision of the respondent, but was the implementation of a decision or policy issued directly by the Minister. In these circumstances, counsel for the respondent indicated that the respondent was supporting the application of the Minister to be joined into the proceedings. The Law.
  19. The present application is moved pursuant to O.84, r.22
(2)&
(9)of the Rules of the Superior Courts, these rules provide as follows: “
(2)The notice of motion or summons must be served on all persons directly affected.
(9)If on the hearing of the motion or summons the Court is of opinion that any person who ought, whether under this rule or otherwise, to have been served has not been served, the Court may adjourn the hearing on such terms (if any) as it may direct in order that the notice or summons may be served on that person.” 13
  1. The legislative framework governing the legal relationship between the Minister and the respondent is somewhat complex. It is not intended to set it out in extenso in this judgment; but instead to give a brief summary of its main features.
  2. The Health Act 1970 established various Health Boards and set out their powers. Section 51 of that Act defined what is meant by inpatient services. It is effectively services where there are beds. Thus, it includes the provision of minor surgery that would take place on a daycare basis, but where the patient would need access to a bed for a portion of the time. Section 52 of the 1970 Act placed a duty on the Health Board to make available “inpatient services”. Section 55 gave a power to the Health Board to make available inpatient services to those not eligible to public healthcare, that is it enabled them to provide for the provision of private healthcare in their public hospitals. If the Health Board provided inpatient services to private patients, they had to impose a charge. This was provided for in s.55
(1)(b). If such care was provided in a voluntary hospital, that too had to be subject to a charge.
  1. The respondent was established by the Health Act
  2. Section 6
(1)thereof provided that it would be a body corporate. Section 7 of the Act set out the object and functions of the respondent. Section 7
(5)provided that the respondent must “have regard to” the policies of the Government in carrying out its functions.
  1. The Minister for Health is empowered by s.10 of the 2004 Act to give general directions. If a general direction is given, it must be laid before both Houses of the Oireachtas. The Minister is also empowered to give specific directions, but this is limited to certain matters.
  2. Section 16P
(2)(a)(iii) provides that the Board of the HSE shall satisfy itself that appropriate systems, procedures and practice are in place in order to enable compliance with the policies (whether set out in codes, guidelines or other documents, or any 14 combination thereof) of the Government or a minister of the Government to the extent that those policies may affect or relate to the functions of the Executive.
  1. The degree of control and integration between the Minister and the respondent was examined in HSE v The Commissioners of Valuation [2010] 4 IR 23 where McMenamin J. looked at the provisions of the statutory code and held that there was a very significant degree of control and integration between the Minister and the respondent. Having reviewed the relevant statutory provisions, he summarised the position as follows at para. 42: “Cumulatively, these provisions demonstrate a very high degree of central control which the Minister may exercise upon the appellant. Its statutory functions are by no means removed from or independent of government. The opposite is the case. They go to its core function. The appellant is to operate under tight ministerial control albeit its functions are to be performed through the board and chief executive. It is now necessary to consider the third test.”
  2. Turning to the legal test that has to be applied when considering whether it is appropriate to join a party to proceedings, the parties were agreed that the relevant principles were those set down by Quinn J. in Meta Platforms Ireland Limited v Data Protection Commission [2024] IEHC
  3. However, before looking at the principles set down in that case, it will be appropriate to mention briefly some of the earlier decisions which were reviewed by Quinn J. in his judgment.
  4. In BUPA Ireland Ltd v Health Insurance Authority [2006] 1 IR 201, the court held that the notice party was a body whose proprietary or pecuniary rights were or may be directly affected by the proceedings either legally or financially and that that gave them sufficient entitlement to be joined into the proceedings (see para.36). 15
  5. In Fitzpatrick v FK [2007] 2 IR 406, Clarke J. (then sitting as a judge of the High Court), noted that in public law actions slightly different considerations could apply when a party seeks to be joined into proceedings. He noted that in the field of public law remedies there may well be persons who are not, strictly speaking, appropriately named as respondents, but who may nonetheless have a direct interest in the matter in issue. He gave as an example of such a party, the party who is the beneficiary of a favourable decision at first instance, where a challenge is brought against that decision by the disappointed party, but where the decision maker is named as the sole respondent. He also stated that where a public authority makes a decision in a process which could loosely be described as either adversarial or approximating thereto, the court would normally require that the other party to the process will be given an opportunity to be heard. The judge noted that the obligation under O.84 for an applicant to serve proceedings on any persons “directly affected” did not stem from any difference in principle between public litigation and private litigation, but stemmed from the fact that a wider range of persons may have a direct interest in the result of public law litigation.
  6. At para.13 of the judgment Clarke J. set down the test that had to be applied when considering whether a party should be joined to proceedings. The party must be able to establish a direct interest in the actual subject matter of the case rather than an interest which derives from the fact that the result of the case may have value as a precedent which could, in turn, affect other similar litigation.
  7. In Dowling v Minister for Finance [2013] IESC 58, Fennelly J. held that even where a party was already in the litigation who had interests that were similar to those of the party who sought to be joined; nevertheless, a party with a direct interest in an administrative decision was entitled to have his own case put to the court by his own 16 counsel independently of the defence made on behalf of the decision maker. That was his right. He stated that an interested party being a party directly affected, was entitled to be represented to defend his or her interests, even if the decision maker was there to advance the same arguments.
  8. In Colbeam Limited v Dún Laoghaire-Rathdown County Council [2023] IEHC 450, Holland J. had to consider when the effect of litigation could be said to be direct or indirect. He gave his conclusion on that issue in the following way at para.123: “There seems to me a lack of a bright line attending the distinction between direct and indirect effects when it comes to applying it to facts. And facts are infinitely variable in their presentation. The primary element of the distinction seems to me to be whether the cause and effect in question are separated by a significant intermediate event both caused by the cause and causing the effect. The application of that distinction in many factual situations will produce an obvious outcome. But in the borderlands of that distinction the significance – indeed the presence — of any intermediate effect and the outcome as to whether the effect is direct or indirect may be less obvious and may be appreciably a matter of close analysis, judgment, degree and impression. The present seems to me to be such a case.”
  9. Finally, as already noted, the parties were agreed that the relevant principles that have to be applied by this Court when considering whether it is appropriate to join the Minister as a notice party to the proceedings, are those set down in Meta Platforms Ireland Limited v Data Protection Commission. Having reviewed the relevant authorities, Quinn J. stated that the following principles are relevant to such an application: first, a party seeking to be joined must be a party “directly affected” by the 17 proceedings. Secondly, the direct effect must be on the person, and may be an effect on rights or interests, provided in the latter case the interest is a substantial interest. Thirdly, an effect which is no more than precedential is not a sufficiently direct effect. The question is whether the outcome of the case will affect the party in such a unique manner as to warrant joinder. Fourthly, as identified by Fennelly J. in the Dowling case “there is an underlying principle that a person is entitled to participate in proceedings which are capable of adversely and directly affecting his or her substantial interests”. That was echoed by Holland J. in Colbeam where he stated that the “myriad of circumstances… in which judicial review arises requires a criterion broad enough to ensure that those who, in the interests of justice, genuinely ought to be served, are served”. Discussion and Conclusions.
  10. The first thing which must be made clear is that on an application of this kind, the court is not entitled to adjudicate on any of the substantive issues that arise on the pleadings between the existing parties, nor on those that may arise if the moving party is joined to the proceedings.
  11. This Court must look at the pleadings in the action to date to see if the party seeking to be joined into the proceedings has a sufficient interest in the proceedings, such that the outcome of the proceedings would have a direct effect on them, rather than being merely indirectly affected by whatever decision may be handed down by the court following the substantive hearing.
  12. I am satisfied having regard to the statutory framework in place under the Health Acts 1970 and 2004, as amended, that the relationship between the respondent and the 18 Minister is a complex one in which the Minister exerts significant control and direction over the respondent. That was accepted by the court in the HSE v Commissioner of Valuation case.
  13. Whether the decision that was recorded in the memorandum of 5 February 2025 issued by Mr. McCallion in his role as deputy CEO of the respondent, was truly a decision of the respondent; or was, in reality, the implementation of a decision or policy directed by the Minister, is a question to be determined at the trial of the action.
  14. I am satisfied from the evidence contained in the affidavits sworn by Mr. McCallion and Mr. Tierney that there is an arguable case to be made that the decision contained in the impugned memorandum was in substance and reality a decision of the Minister.
  15. I accept the evidence given by Mr. Tierney in his affidavits, as evidenced in the documents exhibited by him, that the provision of a universal public healthcare system is the cornerstone of the Sláintecare policy, which policy was adopted by the Government in its decision of 7 December
  17. I accept his evidence that the provision of surgical hubs for the treatment of public only patients represents a significant element in the achievement of the ultimate goal set out in the Sláintecare policy.
  18. That being the case, I am satisfied that the present proceedings, which challenge the introduction of surgical hubs on a public patients only basis in respect of consultants who remain on the relevant version of the 2008 contract, who number approximately 1,435 consultants at present, could, if the applicant is successful in these proceedings, represent a very significant obstacle to the roll-out of the Sláintecare programme. In these circumstances, I am satisfied that the interests of the people of Ireland and the 19 interests of the Government as their representatives are engaged. Accordingly, I am satisfied that it is appropriate to join the Minister to these proceedings.
  19. In argument at the bar, Ms. Maguire SC for the applicant submitted that, in reality, when there was an identity of interest between the Minister and the respondent, it would only lead to a duplication of parties to join the Minister to the proceedings. I do not accept that submission as being well-founded.
  20. The decision in the Dowling case, which applied the dicta of Keane CJ. in Spin Communications v IRTC [2000] IESC 56 makes it 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.
  21. Counsel also relied on the decision in Monopower Limited v Monaghan County Council [2006] IEHC
  22. In that case the applicant had brought judicial review proceedings against the respondent county council seeking an order of mandamus directing them to grant planning permission to it on the basis that the local authority had not provided a decision on their planning application within the time specified in the regulations. An application was made by the Minister for the Environment, Heritage and Local Government to be joined into the proceedings as the application involved the relevant planning regulations and their implementation. That application was refused by Herbert J. in an ex tempore judgment on the basis that the Minister was not “directly affected” by the applicant’s application. It is important to note that the applicant was not seeking to challenge the regulations, but to enforce them.
  23. The judge held that the arguments in the case fell squarely between the applicant and the respondent. The respondent’s interests and its right to defend the application intervened between the applicant's application for judicial review and the possible consequences for the Minister. The fact that a particular consequence may arise did not 20 give the Minister power to seek to be served with a notice of the application for judicial review because he was not a person “directly affected”.
  24. While there are similarities between that case and the present one, I am 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.
  25. In making the decision to join the Minister to the proceedings, I am satisfied that no substantive or litigious prejudice will be caused to the applicant. I accept the evidence of the applicant that the documentation exhibited in the proceedings concerning the original Sláintecare report of 2017 and the various reviews of it thereafter, are replete with statements that as far as consultants who are employed under the 2008 contract are concerned, it would be necessary to negotiate with them before full implementation of the Sláintecare policy could be achieved. The legal effect of those statements is a matter to be determined at the trial of the action.
  26. The addition of the Minister will not affect the private law rights of the applicant. Whatever contractual rights he has under his contract with the respondent, they will not be adversely affected by the joinder of the Minister to the proceedings.
  27. It appears to the court that the core issue in this case is probably reasonably net: whether having regard to the applicant's contract of employment, the respondent, whether acting on its own behalf, or as a surrogate for the Minister, is entitled to introduce into the hospital where the applicant is employed, a surgical hub in which the applicant will be able to operate on patients, but on a public only basis.
  28. The answer to that question will largely turn on the proper construction of the applicant's contract of employment with the respondent. I will say nothing more on that issue. It is an issue to be determined at the trial of the action. All I will say is that the 21 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.
  29. In argument at the bar, it was submitted by counsel on behalf of the applicant that the Minister could not argue that surgical hubs should be on a public only basis because the various implementation reports had made it clear that these surgical hubs were to be modelled on the Reeves Centre attached to Tallaght Hospital, which caters for both public and private patients. On behalf of the minister, Mr. Tierney in his second affidavit stated that the reference to the surgical hub in Tallaght Hospital was purely by way of example of the general operational structure of a surgical hub. It is not for this court to resolve that issue. That is an issue which will have to be determined at the substantive hearing of the proceedings.
  30. In reaching its decision, the court has also had regard to the fact that there is an identical set of proceedings before the court in the case bearing title and record number: Rustom Manecksha v HSE, record no. 2025/593 JR. The applicant in that case is a consultant employed in two voluntary hospitals, St. James’ Hospital and Tallaght Hospital.
  31. While these cases are not test cases, they have some of the characteristics of a test case due to the fact that the 2008 Consultants Contract is in identical terms for all those consultants who are employed under it. Where there are approximately 1435 consultants employed under the 2008 Contract, Type B, the outcome of the present proceedings will have a very significant effect on the provision of health care in the State. I am satisfied that these proceedings represent a significant systemic challenge to a fundamental component of the Sláintecare programme. In these circumstances, I am satisfied that it is appropriate to grant the Minister's application to be joined as a notice party to the proceedings. 22
  32. Finally, I am satisfied that the joinder of the Minister to the proceedings will not delay the hearing of the proceedings, nor add greatly to the length or cost thereof. Most, if not all, of the relevant documents have been exhibited as part of this application. The positions of the parties have already been set out in very considerable detail. I do not think that any further pleading that may be required by the joinder of the Minister as a notice party, will take long to put in place, as each of the parties has already pleaded their position in detail. Accordingly, I find that there is no substantive or procedural prejudice caused to the applicant by the joinder of the Minister to the proceedings. Proposed Final Order.
  33. For the reasons set out herein, the court will accede to the application by the Minister to be joined as a notice party to the proceedings as sought in her notice of motion dated 14 November
  35. This application was heard along with an identical application in proceedings bearing title and record number: Rustom Manecksha v Health Service Executive [Record no. 2025/593 JR]. The court will hear the parties as to what order should be made in that case, given that it was agreed between the parties that the issues were identical in each case.
  36. As this judgment has been delivered electronically, the parties shall have two weeks within which to furnish brief written submissions of not more than 1,000 words on the terms of the final order and on costs and on any other matters that may arise.
  37. The matter will be listed for mention at 10.30 hours on 14 July 2026 for the purpose of making final orders.

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