O'Donoghue v South Eastern Health Board

• Jurisdiction: Ireland
• Judge: Macken J.
• Judgment Date: 05 September 2005
• Neutral Citation: [2005] IEHC 349
• Docket Number: [2003 No. 295 JR]
• Court: High Court
• Date: 05 September 2005

O'DONOGHUE v SOUTH EASTERN HEALTH BOARD

JUDICIAL REVIEW

BETWEEN:

GEOFFREY O'DONOGHUE

APPLICANT

AND

SOUTH EASTERN HEALTH BOARD

RESPONDENT

[2005] IEHC 349

No. 295 JR/2003

THE HIGH COURT

EMPLOYMENT

Disciplinary procedures

Medical practitioners - Misconduct - Suspension - Fair procedures - Suspension for purpose of carrying out investigation - Whether consultant entitled to know basis and substance of allegations prior to suspension - Whether entitled to make representations prior to suspension - Consultant's common contract - Interpretation - Whether investigation into misconduct only permissible under clause 1 - Immediate risk to safety, health or welfare of patients or staff - Whether suspension under clause 3 valid where no investigation in being under clause 1 - Certiorari granted (2003/295JR - Macken J - 5/9/2005) [2005] IEHC 349; [2005] 4 IR 217

O'Donoghue v South Eastern Health Board

Facts: The applicant held the post of consultant chief psychiatrist in a hospital. He applied for judicial review of the purported decision of the Respondent purporting to place him on administrative leave.

Held by Macken J. in quashing the decision that the constitutional right of the applicant to a fair hearing was not complied with.

Reporter: R.W.

HEALTH ACT 1970

MENTAL HEALTH ACT (TREATMENT) ACT 1945

KEEGAN, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642

STROKER v DOHERTY 1991 1 IR 23

GLOVER v BLN LTD 1973 IR 388

GUNN v NATIONAL COLLEGE OF ART & DESIGN 1990 2 IR 168 1988 DULJ 164

GALLAGHER v REVENUE COMMISSIONERS 1995 1 IR 55 1995 1 ILRM 241

KIELY v MIN FOR SOCIAL WELFARE 1977 IR 267

MAHER v IRISH PERMANENT PLC 1977 IR 267

AZIZ v MIDLAND HEALTH BOARD UNREP SUPREME 29.10.1999 1999/1/147

MCNAMARA v SOUTH WESTERN AREA HEALTH BOARD 2001 ELR 317

DEEGAN & ORS v MIN FINANCE UNREP HIGH COURT O'HIGGINS 12.5.1998 1998/35/6399

1 Judgment delivered by Macken J. on the 5th day of September 2005

2 The Applicant holds the post of Consultant Chief Psychiatrist at St. Senan's Hospital in Co. Wexford and is the incumbent of a statutory office pursuant to the Health Act 1970 and is also Resident Officer under the Mental Health (Treatment) Act 1945 at the above hospital. The Respondent is a statutory body under the Health Act 1970 and is the employer of the Applicant under a Contract known as the Consultant's Common Contract (hereinafter "the Contract") regulated by Comhairle na nOspidéal. The Applicant lodged the within proceedings in the usual way on the 28th April 2003. On that date by order of this court (O'Donovan, J.) the Applicant was granted leave to issue judicial review proceedings in respect of the following reliefs:

3 (i) A Declaration that the purported decision of the Chief Executive Officer of the Respondent of the 8th April 2003 purporting to place the Applicant on administrative leave is without efficacy and ultra vires.

4 (ii) A Declaration that the purported decision of the Chief Executive Officer of the Respondent to place the Applicant upon administrative leave was not a bona fide exercise by the Respondent of its statutory powers and its obligations under the Consultant's Common Contract.

5 (iii) A Declaration that the Respondent was performing a quasi-judicial function in purporting to place the Applicant upon administrative leave and was accordingly required to act in accordance with the principles of natural and constitutional justice.

6 (iv) A Declaration that in purporting to place the Applicant on administrative leave, the Respondent has acted unreasonably, oppressively and arbitrarily.

7 (v) An Order of Certiorari quashing the purported decision of the Respondent to place the Applicant on administrative leave as embodied in a letter from the Chief Executive Officer of the Respondent to the Applicant on the the 8th of April 2003.

8 (vi) An Injunction restraining the Respondent, its servants or agents from proceeding with ort embarking upon or otherwise subjecting the Applicant to the purported decision to place the Applicant upon administrative leave.

9 (vii) An Injunction restraining the Respondent, its servants or agents from interfering with the lawful tenure of the Applicant as Consultant Chief Psychiatrist at St. Senan's Hospital, Enniscorthy, Co. Wexford.

10 (viii) A Declaration that the Applicant continues to be the lawful incumbent of the permanent and pensionable position and office as a Consultant Chief Psychiatrist at St. Senan's Hospital, Enniscorthy, Co. Wexford and is entitled to carry out all reasonable and lawful duties and responsibilities pertaining thereto without let or hindrance.

11 (ix) A Declaration that the treatment of the Applicant by the Respondent, its servants or agents, is and has been at all material times, unreasonable and in breach of Contract, in breach of duty (including breach of statutory duty) and in breach of natural and/or constitutional justice.

12 (x) A Declaration that the purported decision to place the Applicant upon administrative leave is in breach of the provisions of the Consultant's Common Contract, in breach of the provisions of the Health Act, 1970 and in breach of the Applicant's right to natural and constitutional justice.

13 (xi) A Declaration that the Respondent's Chief Executive Officer has formed or reached a pre-judgment that the Applicant has failed to comply with the terms of his appointment or that he has misconducted himself or presents a serious risk to the safety, health and welfare of patients or staff as would prevent a fair and independent investigation or consideration of the relevant issues.

14 (xii) Damages.

15 The grounds upon which the relief is sought are lengthy and extensive and I synopsise them as follows:

16 (a) In making the decision to place the Applicant on administrative leave the Respondent invalidly invoked and relief upon Clause 3 of Appendix IV of the Contract.

17 (b) Given the circumstances of the events leading to these proceedings, the above decision could not have been made on the basis that the Applicant's conduct posed an immediate risk to the safety, health or welfare of patients or staff. Further the Chief Executive Officer of the Respondent failed to place the Applicant upon immediate administrative leave and failed to conduct the required investigation with all practical speed as required.

18 (c) The procedure provided under Article 1 and not under Article 3 of the Contract is the applicable one where a Consultant is accused of conduct amounting to a failure to comply with the terms of his appointment or of misconduct. The Respondent did not comply with the provisions of Clause 1 by (i) failing to notify the Applicant in writing of the alleged concerns; (ii) failing to indicate the substance, basis or reasons for such concerns; (iii) failing to afford the Applicant a period of two weeks in which to make representations and (iv) by failing to give any or any adequate grounds or reasons for the decision or any adequate opportunity to respond to the allegations, or to consider properly the responses actually given.

19 (d) The Respondent took into account irrelevant considerations in making his decision and/or failed to take account of relevant considerations and the decision was based on matters which were not put to the Applicant.

20 (e) The opinion of the Chief Executive Officer of the Respondent that the Applicant posed an immediate and serious risk to the safety, health and welfare of patients or staff was not reached bona fide, was not reasonable or factually sustainable or credible.

21 (f) The Chief Executive Officer prejudged the consequences of the Applicant's alleged conduct and is therefore biased. There are accordingly good grounds for the Applicant to fear that this would prevent a fair and independent investigation process and/or decision.

22 (g) The decision to place the Applicant on administrative leave is an infringement of or alternatively an interference with the Applicant's right to earn a livelihood and with his good name and his right to natural and constitutional justice.

The factual background

23 As mentioned above the Applicant holds the position set out at the commencement of this judgment having been appointed in August 1992. Differences between the parties have arisen in the past. According to the materials before the court, the Applicant previously sought judicial review of a decision made to establish an investigation team to look into certain allegations against him. The Respondent apparently conceded or consented to an order being made in those proceedings in May 2002.

24 On or about the 28th April 2002 the Respondent set in train a process governed by Appendix IV of the Contract, which is entitled Disciplinary Procedures. The Applicant was furnished with seven appendices of complaint from nine complainants. He responded to these in June 2002. He was furnished with further submissions in respect of those complaints on the 12th October, the 25th October and the 12th November 2002 and responded to these on the 6th December 2002. Up to the date of the commencement of these proceedings he had received no further significant communication in respect of that investigation. Details of that investigation were invoked by the Respondent as a significant factor in these proceedings. It has furnished as part of its response to these proceedings a large number of affidavits from the several complainants in respect of matters arising in the course of that investigation. I will deal with this matter during the course of the judgment.

25 The Respondent's decision which is the subject of these present proceedings arises out of an incident which occurred on the 3rd January 2003. Briefly there has been a dispute in the hospital in relation to the allocation of non-consultant...