O'Connell v Adelaide
| Jurisdiction | Ireland |
| Judge | Mr. Justice David Keane |
| Judgment Date | 22 July 2016 |
| Neutral Citation | [2016] IEHC 423 |
| Court | High Court |
| Docket Number | [2015 No. 10026 P] |
| Date | 22 July 2016 |
[2016] IEHC 423
THE HIGH COURT
Keane J.
[2015 No. 10026 P]
AND
Employment – Dignity at Work Policy – Employment law injunction application – Application to restrain investigation – Unwarranted and prejudicial delay – Out of time complaints – Binding agreement – Balance of convenience – Lower risk of injustice – Breach of fair procedures
Facts: Following the complaints made against the plaintiff by three consultants, the plaintiff had now filed the employment law injunction application. The plaintiff sought to restrain an investigation by the defendant (employer) of the complaints made against him. The plaintiff also sought to prevent the investigation and claimed damages on the ground of breach of contract, defamation, etc. The plaintiff contended that the investigation into the complaints made by those consultants could not be conducted, owing to the fact that it would be unfair and in breach of the plaintiff's right to fair procedures, as the complaints were dealt with undue and unexplained delay. The plaintiff further contended that the complaints were made out of time and there was an agreement between the parties that the defendant would refuse to entertain complaints filed by the consultants as out of time.
Mr. Justice David Keane refused the employment law injunction application filed by the applicant. The Court held that the Dignity at Work policy did not fix a specific time limit for filing complaints of bullying, harassment and sexual harassment. The Court held that the plaintiff failed to raise an issue to be tried concerning whether the hospital had entered into a binding agreement with him to deem the complaints to be “out of time,” thereby preventing it from conducting any investigation of those complaints. The Court held that though the plaintiff had a case to make due to the delay caused in the investigation, the circumstances that led to the delay must be taken into account. The Court held that the plaintiff acted as the CEO of the hospital at the time of the alleged complaints that led to the delay in the investigation and further the plaintiff had denied going for mediation concerning the complaints. The Court held that a dispute over the appropriate procedure of a disciplinary action could not justify the prevention of the intervention of the court to reach its natural conclusion. The Court held that the balance of convenience or the course of carrying lower risk of injustice favoured the complainants owing to their grievance related to health and safety of public rather than the plaintiff restraining the investigation to avoid the termination of his employment. The court held that the plaintiff had failed to establish that the delay in the process to date has resulted in consequences manifestly at variance with his entitlement to fair procedure.
This is an employment law injunction application. The plaintiff employee seeks to restrain an investigation by the defendant, his employer, of complaints made against him in 2011 and 2012 by three identified doctors.
In the underlying proceedings, the plaintiff seeks to prohibit that investigation and claims damages from the defendant (‘the hospital’) for breach of contract, the reckless or negligent infliction of emotional suffering, defamation and intimidation.
The plaintiff took up the position of Director of Human Resources at the hospital in 2005. He was later appointed Deputy Chief Executive Officer – Director of Operations, although precisely when that occurred is not clear from the affidavits before the Court. In July 2010, the plaintiff was requested to assume the role of acting Chief Executive Officer (‘CEO’) while a selection process was conducted to make a permanent appointment. The plaintiff was a candidate for that position but was unsuccessful. The successful candidate was appointed in May 2011 and took up the role in August of that year, when the plaintiff resumed the role of Deputy CEO. Depending on whose evidence you accept, the plaintiff became either “Director of Human and Corporate Affairs/Deputy CEO” or “Human Resources Director/Deputy CEO” in September 2012. As part of a broader agreement between the parties entered into on the 30th July 2014, the plaintiff agreed to relinquish the title of “Director of Corporate and Human Resources/Deputy CEO” and to assume the title of “Executive Director for Human Resources.”
Among the documents exhibited by the plaintiff for the purpose of the present application is one that was published in May 2012 by the Health Information and Quality Authority (‘HIQA’ or ‘the Authority’). It is entitled “Report of the investigation into the quality, safety and governance of the care provided by the Adelaide and Meath Hospital, Dublin incorporating the National Children's Hospital (AMNCH) for patients who require acute admission.”
The “Introduction and background” section of the executive summary in the report includes the following passage:
‘Since 2009, the Authority has had extensive engagement with the Hospital due to concerns raised in relation to risks to the health and welfare of patients associated with a number of aspects of the system of care provided to patients at the Hospital and, in particular, the clinical risks to patients who required acute admission being accommodated in the corridor adjacent to the Emergency Department (ED) while awaiting transfer to an inpatient bed at the Hospital. However, despite a number of actions having been taken by the hospital, the Authority was not assured that the immediate clinical, health and welfare risks to patients being cared for on the corridor adjacent to the ED were being adequately controlled and managed by the hospital.
In June 2011, the Authority received the report of the Hospital's internal review into the unexpected death of a patient in March 2011. The patient had been receiving care, initially in the ED, and subsequently on the corridor adjacent to the ED while awaiting admission to an inpatient bed. The Authority was concerned that the report of this review did not indicate that the Hospital was effectively identifying and managing the clinical, health and welfare risks to patients requiring acute admission to the Hospital despite the history of engagement with the Authority highlighting these risks.
On 24 June 2011, the Board of the Authority considered these risks, and the degree of assurances that had been provided by the Hospital, and took the decision to instigate an investigation into the quality, safety and governance of the care provided to patients who required acute admission to the Hospital. The investigation focused on the time period from 2010 to 2011 which included the latter part of the term of the Board that was in place at the commencement of the investigation.
In carrying out the investigation, the Authority looked in detail at the quality, safety and governance of the system of care in place for patients requiring both unscheduled (unplanned, emergency) care and scheduled (elective and planned) care in the Hospital and, in particular, those patients admitted through the Emergency Department.
The Authority also investigated the effectiveness of the Board of the Hospital and the corporate and clinical governance arrangements that it had in place to assure itself that risks to patients were being appropriately managed by the Hospital – particularly the risks to patients receiving care in the ED and requiring acute admission.’
The “Summary of findings” section of the executive summary of the report, under the heading “Unscheduled care”, includes the following text:
‘The mean waiting time in the ED for a non-admitted patient at the Hospital from January to August 2011 was within the spectrum of 6-7 hours and the Authority found that some patients were waiting within the ED for up to 61 hours before being discharged. However, unscheduled patients who attended the ED, and subsequently required inpatient admission whilst awaiting transfer to an inpatient bed, were accommodated either within a designated area in the ED or on the corridor adjacent to the ED. Over 80% of the admitted patients were accommodated on the corridor adjacent to the ED and waited, on average, a further 13 hours for an inpatient bed, with the longest waiting reported as 140 hours. This was an unacceptable situation for patients.
The Authority found a number of serious issues specific to the use of the corridor adjacent to the ED as a waiting area for admitted patients awaiting an inpatient bed. These issues had the potential to compromise the quality and safety of care for these patients and the capacity of the ED staff to provide a timely assessment of newly arriving patients in the ED. Following an unannounced inspection by the Investigation Team on 24 August 2011 which highlighted these risks, the Chief Executive of the Hospital confirmed that the use of the corridor adjacent to the ED ceased on 29 August 2011. The cultural belief by individuals in any hospital that the routine practice of accommodating patients on trolleys in corridors is acceptable should not be tolerated. This is not satisfactory for patients and the public and should cease.’
Also in the ‘Summary and findings’ section of the executive summary of the report, the following text is included under the heading ‘Executive Management’:
‘The Executive management arrangements at the Hospital had, over the last three years, gone through a number of significant changes with four members of staff acting in the role of Chief Executive. There was no clear scheme of delegation from the Board to the Chief Executive or to the Executive Management...
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Nasheuer v National University of Ireland Galway
...the stay the trial judge rejected the defendant's reliance upon the decision of Keane J. in O'Connell v. Adelaide and Meath Hospital [2016] IEHC 423 and that of Clarke J. in Minnock v. Irish Casing Company Limited. She concluded that the investigation was not purely investigative in nature......