Factual and Procedural Background
This was an application for leave to apply for judicial review concerning the Respondent’s refusal to reimburse the Applicant for Wegovy under section 23 of the Health (Pricing and Supply of Medical Goods) Act 2013. The Applicant is a teenager represented by his mother. The application alleged that the refusal was irrational and breached the Applicant’s rights. [1][2]
The Applicant has a rare syndrome, severe weight-related health difficulties, a cardiovascular defect, autism, and hyperphagia. Wegovy had produced significant weight loss and improvements in his daily functioning, but the medication cost approximately €450 per month and was unaffordable for his mother. [3][4]
After proceedings began, the Applicant’s mother applied for an individual discretionary arrangement under section 23. The application was refused on 19 May 2026. The Respondent did not oppose reframing the judicial review application to address that decision. [5][6]
The decision did not address the evidence concerning the Applicant’s rare syndrome. The Applicant sought certiorari and related declaratory relief. [7][8]
Legal Issues Presented
- Whether the Applicant had an arguable case warranting leave to seek judicial review of the refusal to supply Wegovy under section 23. [9][10][11]
- Whether the decision makers may have failed to consider, or irrationally discounted, potentially material evidence concerning the Applicant’s rare syndrome. [2][12][13][14]
- Whether the Respondent’s broad statutory discretion and resource-allocation considerations prevented review of the decision at the leave stage. [15][16][17][18]
Arguments of the Parties
Applicant’s Arguments
- The refusal should be quashed because the decision makers failed to address evidence concerning the Applicant’s rare syndrome. [7][8]
- The proposed alternative drug was unsuitable and less effective, particularly in light of the syndrome and the Applicant’s co-morbidities. [8]
- The syndrome was rare, so the decision might not have the broad implications assumed by the Respondent. [8][19]
- The Applicant should be permitted to proceed without paying stamp duty because of his family’s financial circumstances, the unavailability of legal aid, the public interest, and the health and welfare of a child. [20][21]
Respondent’s Arguments
- Section 23 creates a discretion rather than an entitlement to receive the medication. [16]
- The decision was closely connected to policy and the allocation of public resources, areas in which the Court should exercise restraint. [16][22]
- Judicial interference should be limited to decisions that are arbitrary or capricious. [23]
- Evidence concerning the syndrome had not been provided to the decision makers and should not be considered. [13]
- The Respondent relied on the breadth of its discretion and its access to information about budgets and competing public needs. [22][24]
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| G v. D.P.P. [1994] 1 I.R. 374 |
The applicant must show that judicial review is the appropriate remedy and establish an arguable case. |
The Court applied the arguable-case threshold at the leave stage. [10] |
| O'Doherty v. Minister for Health [2022] IESC 32, [2023] 2 IR 488 |
The applicant must demonstrate an arguable prospect of success, though not a reasonable prospect of success. |
The Court used this formulation in assessing whether leave should be granted. [11] |
| Amariei v. Chief Appeals Officer [2026] IESC 22, [2025] 2 ILRM 335 |
At the leave stage, the court must take the applicant’s case at its highest. |
This approach supported consideration of the Applicant’s argument concerning the omitted medical evidence. [25][26] |
| Airey v Ireland (1979) 2 EHRR 305 |
Economic barriers should not obstruct access to justice. |
The principle supported the exceptional exemption from stamp duty. [27][28] |
| Murphy v Minister for Justice [2001] 2 ILRM 144 |
Courts may charge reasonable fees and are not generally required to grant exemptions from stamp duty. |
The Court distinguished the case because of the Applicant’s financial circumstances, lack of legal aid, and the subject matter of the proceedings. [29][20][21] |
| Garda Representative Association v Minister for Finance [2010] IEHC 78 |
Courts should be cautious before interfering with decisions resembling political or resource-allocation choices; an apparent discretion may become an entitlement where statutory criteria are satisfied. |
The case did not prevent leave because the present challenge concerned possible failure to consider a material factor in an individual patient’s circumstances. [30][31][32] |
| O'Reilly v Limerick Corporation [1989] ILRM 181 |
A decision concerning the distribution of housing funds was held not to be amenable to judicial review. |
It was considered as part of the caution required when reviewing decisions involving policy and public resources. [30] |
| B.M. v Chief Appeals Officer [2024] IESC 51 |
A court should not substitute its own decision for that of a public body allocating State resources. |
The Court distinguished the case because the present application involved an arguable omission of a relevant consideration. [24] |
| Duff v Minister for Agriculture [1997] 2 IR 22 |
The dominant judicial view is that discretionary powers are generally reviewable, although the applicable test may be difficult to apply. |
The principle supported postponing final resolution of reviewability until a full hearing. [33] |
Court's Reasoning and Analysis
The Court applied the established leave threshold: the Applicant was required to show an arguable case and an arguable prospect of success, not a reasonable prospect of success. The Applicant’s case had to be taken at its highest at this stage. [10][11][26]
Section 23 permits the Respondent, at its discretion, to supply an unlisted item where the patient requires it for clinical reasons and no listed item is a suitable alternative. The discretion does not create an automatic entitlement, but the decision remains capable of judicial review. [34][35][36][37][15][16]
The Court accepted that it could not substitute its own assessment for the Respondent’s decision on the allocation of public resources. However, a decision may potentially be quashed if a relevant consideration was ignored or irrationally discounted, resulting in an arguably irrational conclusion. [24]
The written decision referred to a pending genetic test, suggesting that the decision makers knew the syndrome might be relevant. It was unclear whether they had considered and rejected the clinical diagnosis or had never received the relevant medical letter. That uncertainty could affect the rationality of the decision. [13]
The Court identified two possible scenarios: the medical letter was before the decision makers but was not addressed, or it was not submitted with the later application despite having appeared in the earlier proceedings. The latter possibility could raise issues concerning procedural fairness and evidential burdens. [14][38]
The omission was potentially material because the decision relied on the availability of an alternative drug and considered the possible effect of the decision on numerous patients. It was unclear whether those conclusions would have differed if the rare syndrome had been considered. [12][19]
Because the medical evidence, the information available to the decision makers, and the legal consequences of omitting or discounting material evidence required further examination, the Court concluded that the case could not fairly be finally determined at the leave stage. [39][40][41]
Holding and Implications
LEAVE GRANTED IN PART. The Applicant had an arguable case for certiorari concerning the decision of 19 May 2026 refusing to supply Wegovy under section 23. Leave was also granted for the residual relief described as such other relief as the Court considered just. [42][43]
Leave was refused in relation to the detailed declarations concerning the suitability of the alternative drug because those declarations were not considered necessary at this stage. [43]
The direct consequence was that the challenge could proceed to a full hearing; the refusal decision was not quashed at this stage. The opinion identifies no broader implication beyond permitting that judicial review to continue, and no new precedent was set. [41][43]