Conway and Others v Health Service Executive

• Jurisdiction: Ireland
• Judge: Ms. Justice Murphy
• Judgment Date: 05 February 2016
• Neutral Citation: [2016] IEHC 73
• Date: 05 February 2016
• Court: High Court
• Docket Number: [2015 No. 9804 P] [2015 No. 9806 P] [2015 No. 9805 P] [2015 No. 9807 P] [2015 No. 9808 P]

[2016] IEHC 73

THE HIGH COURT

Murphy Deirdre J.

[2015 No. 9804 P]

[2015 No. 9806 P]

[2015 No. 9805 P]

[2015 No. 9807 P]

[2015 No. 9808 P]

BETWEEN:

LYNDSEY CONWAY

Plaintiff

AND

THE HEALTH SERVICE EXECUTIVE

Defendant

BETWEEN:

CARMEL DOHERTY

Plaintiff

AND

THE HEALTH SERVICE EXECUTIVE

Defendant

BETWEEN:

MARY PRENDERGAST

Plaintiff

AND

THE HEALTH SERVICE EXECUTIVE

Defendant

BETWEEN:

VIDHYA MAVERLY

Plaintiff

AND

THE HEALTH SERVICE EXECUTIVE

Defendant

BETWEEN:

MARIE KILCOYNE

Plaintiff

AND

THE HEALTH SERVICE EXECUTIVE

Defendant

Employment – Professional misconduct – Initiation of disciplinary procedure – Dismissal – Fair procedures – Breach of contractual obligation – Nemo iudex in causa sua.

Facts: The plaintiffs sought an injunction restraining the defendant from continuing the investigative process initiated against the plaintiffs who were subjected to disciplinary procedures owing to allegations of professional negligence and misconduct as psychiatric nurses in a residential home for persons with intellectual disabilities. The plaintiffs contended that they were subjected to two parallel investigations without their consent and in contravention of specific procedures laid down under relevant documents namely, trust in care policy and disciplinary procedures. The defendant contended that those documents were directory and not mandatory in nature and the nature of allegations prompted the defendant to take necessary actions.

Ms. Justice Murphy granted an order for restraining the defendant from continuing the current investigation and initiating another investigation, which was not in accordance with trust in care policy and disciplinary procedures. The Court held that the compliance with the procedures prescribed under the said two documents were mandatory and it would be breach of fair procedures to bypass those procedures. The Court rejected the contention of the defendant that there was delay in instituting the present proceedings by the plaintiffs on the basis that the plaintiffs at all material times were engaged in making negotiations and requesting the defendant to adopt due procedures while conducting the investigation. The Court observed that before granting an injunction, the Court must determine whether a strong case had been made out in favour of the plaintiff, where the balance of convenience lay and whether the plaintiff could be compensated by way of damages. The Court found that the since the basis for the loss of the reputation of the plaintiffs was a flawed process, the damages would not be an adequate remedy.

Judgment of Ms. Justice Murphy delivered ex tempore on the 5th day of February, 2016.

1 The plaintiffs in this application are psychiatric nurses who are employed by the HSE and who were at all material times assigned to Áras Attracta, a residential home for persons with intellectual disabilities based in Swinford, County Mayo. At present each of the plaintiffs is subject to disciplinary procedures initiated by the HSE at various dates between 27th November, 2014 and 13th August, 2015. These disciplinary procedures are purportedly being carried out under two policies of the defendant, namely a Trust in Care Policy and a Disciplinary Procedure. In essence, the claim of the plaintiffs is that those disciplinary procedures form part of their conditions and terms of employment and that the defendant has breached those terms by appointing a disciplinary investigation team without the prior agreement of the plaintiffs and further by conducting parallel investigations under the Trust in Care Policy and the Disciplinary Procedure. The plaintiffs seek the following interlocutory reliefs:

(i) An injunction restraining the defendant from taking any further steps in the investigation process pursuant to the Trust in Care Policy commenced in respect of each plaintiff;

(ii) An injunction restraining the defendant from continuing with the defendant's purported investigation against the plaintiff pursuant to the Trust in Care Policy;

(iii) An injunction restraining the defendant from conducting any disciplinary procedure against the plaintiffs unless the complaints against the plaintiffs are upheld pursuant to the Trust in Care Policy, including the purported commencement of a Stage 4 Disciplinary Process;

(iv) An injunction restraining the defendant from embarking on any investigation or disciplinary procedure against the plaintiff otherwise than in accordance with the plaintiffs' contractual entitlements and with the tenets of fair procedures and natural justice;

(v) An injunction lifting the purported suspensions of the first and second plaintiffs;

(vi) An injunction requiring that there will be no interference by the defendant with certain plaintiffs in undertaking their duties of employment;

(vii) An injunction, if necessary, restraining the defendant from terminating the plaintiffs' employment with the defendant.

Background

2 The investigation concerns seventeen members of staff at Áras Attracta. According to the affidavit of Mr. Pat Healy, National Director of Social Care with the HSE and Commissioner of the Investigation, the twelve other individuals are represented by another union. Those individuals have not made an application to this Court although they have made submissions to the HSE in respect of the process which are of a similar nature to those made by the plaintiffs in the current proceedings.

3 The relevant portions of those procedures are as follows:

‘TRUST IN CARE: Policy for Health Service Employers on Upholding the Dignity and Welfare of Patient/Clients and the Procedure for Managing Allegations of Abuse against Staff Members

[…]

5.3 Conducting the Investigation

Steps in conducting the Investigation

The investigation will be conducted by the designated person(s) agreed between the parties.

[…]

The investigation will be governed by clear terms of reference based on the written complaint and any other matters relevant to the complaint. The terms of reference shall specify the following:

• The investigation will be conducted in accordance with the Trust in Care Policy;

[…]

• Scope of investigation i.e. the investigation team will determine whether or not the complaint has been upheld and may make recommendations (other than disciplinary sanction) where appropriate;

[…]

The investigation team will form preliminary conclusions based on the evidence and will invite any person adversely affected by these conclusions to provide additional information or challenge any aspect of the evidence.

[…]

If a complaint is upheld, the matter will be referred to the chief executive officer (or equivalent) or designated manager who is empowered to take disciplinary action up to and including dismissal.

DISCIPLINARY PROCEDURE

2. Purpose of the Disciplinary Procedure

Examples of conduct which may lead to disciplinary action under this procedure include:

[…]

• Poor work standards;

[…]

• Negligence;

[…]

• Abuse of patient/client (following a complaint being upheld under the Trust in Care policy).

4 […]

• While the disciplinary procedure will normally be operated on a progressive basis, in cases of serious misconduct the manager may bypass stages 1, 2 and 3 of the procedure.

[…]

• The employee will be advised in advance of the disciplinary hearing of the precise nature of the complaint against him and will be given copies of any relevant documentation.

5. Formal Procedure

[..]

Stage 4 Dismissal or Action Short of Dismissal

Failure to meet the required standard of work, conduct or attendance following the issuing of a final written warning will lead to a disciplinary hearing under Stage 4. The decision-maker will be the relevant National Director. The National Director, Primary, Community and Continuing Care (PCCC) may delegate authority to the appropriate Assistant National Director. The National Director, National Hospitals Office (NHO) may delegate authority to a Hospital Network Manager. The outcome of the disciplinary hearing may be dismissal or action short of dismissal. The employee may appeal against dismissal decisions or disciplinary sanctions short of dismissal.

Serious misconduct

The following are examples of serious misconduct which will be dealt with from the outset under Stage 4:

[…]

• Gross negligence or dereliction of duties

[…]

• Serious abuse of a patient/client following a complaint being upheld under the Trust in Care Policy.

[…]

Allegations of serious misconduct will be dealt with as follows:

(i) Notifying the Employee of the Allegation

[…]

(ii) Investigation

An investigation will be conducted by person(s) who are acceptable to both parties.

Decision of the Court

5 There are many matters which are not in dispute between the parties. All are agreed that the events portrayed in the Prime Time Investigates programme aired on 9th December, 2014 gave rise to serious public disquiet as to the treatment of vulnerable people in the care of the HSE. All agree that the events portrayed require to be investigated for the purpose of establishing responsibility for such apparently cruel and inhuman treatment. There is no dispute that complaints arising against HSE personnel, be they frontline staff or management, arising from the contents of the programme itself, or the 197 hours of additional footage supplied to the HSE by RTÉ or from the investigation of the Review Group established by the HSE on a date prior to 12th December, 2014, render those personnel liable to investigation and if appropriate disciplinary sanction. There is no dispute that the applicable disciplinary processes are set out in two policy documents entitled Trust in Care Policy and Disciplinary Procedure. These policies were formulated after lengthy negotiations between all stakeholders and with input from appropriate experts. The policies...