Delivering judgment in the High Court, Ms Justice Gearty has confirmed that a decision by the HSE refusing to reimburse weight loss medication for a minor with a rare syndrome was amenable to judicial review. The court was also satisfied that the minor had an arguable case that the decision was irrational.
The minor is a seven-foot-tall teenager who suffers from a rare syndrome and had, until recently, been severely overweight. His weight had contributed to a number of health difficulties, including orthopaedic complications and an exacerbation of a cardiovascular defect. His care was also complicated by a history of aggressive behaviour.
In July 2025, the minor was prescribed Wegovy or Ozempic, resulting in a four-stone weight loss and improvements in his independence, ability to exercise and aggressive behaviour. Although he held a medical card, his mother had been paying approximately €150 per month for the medication as it was not generally reimbursable under the applicable medical or community drug schemes.
As a single parent and full-time carer, the minor’s mother could no longer afford the cost of the medication and sought reimbursement under the HSE’s discretionary hardship scheme pursuant to section 23 of the Health (Pricing and Supply of Medical Goods) Act 2013.
On 19 May 2026, the HSE refused reimbursement, citing the minor’s three medical conditions, the availability of an alternative medication and the potential implications of its decision for other patients. The decision did not appear to take account of the minor’s rare syndrome.
The minor’s mother subsequently sought leave to bring judicial review proceedings on his behalf, seeking an order of certiorari quashing the HSE’s decision and declaratory relief.
Ms Justice Gearty outlined the relevant provisions of the 2013 Act. Section 17 requires the HSE to establish a reimbursement list of items for which payment will be made to persons requiring the relevant medication. Section 23 permits the HSE, at its discretion and subject to such conditions as it considers appropriate, to arrange for the supply of a non-listed item where it is satisfied that the patient requires it for clinical reasons and there is no listed item that constitutes a suitable alternative for that particular patient.
The HSE argued that leave should not be granted, emphasising that decisions concerning reimbursement closely resemble policy decisions rather than quasi-judicial decisions. It argued that the court could only interfere where a decision was arbitrary or capricious, relying, among other authorities, on Garda Representative Association v Minister for Finance[2010] IEHC 78.
Ms Justice Gearty accepted that the court could not substitute its own decision for that of the HSE. However, she stated that “if a decision was made having ignored or irrationally discounted a relevant consideration thus leading to a conclusion that was, arguably, irrational, a judge may take the view that it should be quashed and remitted to the decision makers for a decision based on accurate facts”.
The judge considered that the HSE’s position concerning the reviewability of the rationality of its decision was particularly significant given that the decision-makers had expressly considered that the issue had to be viewed as one potentially affecting a large number of patients, rather than solely by reference to the minor’s individual circumstances.
In this regard, the court observed that it was “simply not clear” whether that consideration would have applied had the minor’s rare syndrome been taken into account in the decision-making process.
Ms Justice Gearty identified two possible scenarios arising from the evidence. A March 2022 report from a Consultant Clinical Geneticist confirmed that the minor suffered from the rare syndrome. If that report had been before the decision-makers, there was an arguable failure to consider or address a potentially material factor. Alternatively, if the report had not been submitted with the minor’s mother’s most recent application, that would raise a different issue.
The court noted that it would not resolve those factual questions at the leave stage. Any consideration of the substantive challenge would require an examination of the medical issues and the information available to the decision-makers when the reimbursement decision was made.
The High Court concluded that the HSE’s decision was amenable to judicial review and that the minor had an arguable case concerning the rationality of the refusal to provide the medication under section 23 of the 2013 Act.
Accordingly, the court granted leave to apply for an order quashing the HSE’s decision. Leave was refused in respect of the declarations sought, as the court considered that such relief was unnecessary.