Background
T.O., a teenager represented by his mother, sought reimbursement for Wegovy, a semaglutide prescription medicine used for weight loss. Although he holds a medical card, Wegovy is not generally reimbursable. His mother had been paying €450 per month, but said she could not continue. Since being prescribed the drug in July 2025, T.O. had lost four stone and experienced improvements in mobility, independence, exercise, aggression, and family life.
On 27 January 2026, T.O.’s mother applied under s.23 of the Health (Pricing and Supply of Medical Goods) Act 2013 for an individual discretionary arrangement to supply Wegovy despite its absence from the reimbursement list. The HSE refused on 19 May 2026, referring to T.O.’s named conditions, the availability of Saxenda as an alternative, and the possible implications for numerous other patients. The decision did not address a consultant geneticist’s opinion that it was clinically evident that T.O. had a rare syndrome.
The Court’s Holding
Ms Justice Gearty granted leave to seek judicial review of the refusal. This was not a ruling that T.O. was entitled to Wegovy or that the HSE’s decision was unlawful. Rather, the Court held that he had an arguable case that the decision-makers may have failed to consider, or may have irrationally discounted, potentially material evidence concerning the rare syndrome.
Section 23 confers a broad discretion and does not create an automatic entitlement to an unlisted medicine. The Court nevertheless held that the discretion remains reviewable and must arguably be exercised on an accurate factual basis. It was unclear whether the geneticist’s letter had been before the decision-makers, ignored, or treated as irrelevant; the decision’s references to the syndrome and to court papers supported a case that a material aspect may not have been addressed. Leave was granted for certiorari and residual relief, but refused for the detailed declarations concerning the proposed alternative medicine.
Key Takeaways
- A discretionary HSE decision under s.23 may be judicially reviewed, even though the provision does not confer an entitlement to an unlisted medicine.
- At the leave stage, the applicant needed only an arguable prospect of success, not proof that the reimbursement refusal was unlawful.
- A failure to consider potentially material clinical evidence can support an arguable irrationality challenge, including where public-resource considerations are engaged.
Why It Matters
The decision preserves judicial restraint over allocation of public healthcare resources while confirming that such restraint does not place individual discretionary decisions beyond review. The Court will not substitute its view on reimbursement, but it may require a decision to be reconsidered if it was arguably made without addressing material patient-specific evidence.
For practitioners, the case highlights the importance of clearly supplying and identifying all relevant clinical evidence in a s.23 application, particularly where a rare condition may affect both the suitability of an alternative treatment and the claimed wider budgetary impact.