O'Grady v Health Service Executive
| Jurisdiction | Ireland |
| Judge | Ms. Justice O'Regan |
| Judgment Date | 18 December 2019 |
| Neutral Citation | [2019] IEHC 864 |
| Docket Number | [2018/615 J.R.] |
| Court | High Court |
| Date | 18 December 2019 |
[2019] IEHC 864
THE HIGH COURT
JUDICIAL REVIEW
O'Regan
[2018/615 J.R.]
On the 23rd of July, 2018, the applicant was afforded leave to maintain judicial review proceedings against the respondent seeking twelve reliefs in total, namely to quash the Acrux preliminary report of the 20th of March, 2018, together with allied declaratory and injunctive relief, on the basis of a breach of the applicant's right to fair procedure and his contractual rights. In addition, the applicant is seeking the relief of a declaration that his continued suspension is unlawful, restraining same and the applicant seeks to restrain the ongoing investigation.
The applicant in his statement of grounds asserts that the respondent acted with bias in conducting a second investigation into him, and the preliminary report of the 20th of March, 2018, had no valid basis for its adverse findings.
The complaint is made that the preliminary report issued without expert evidence and therefore without an opportunity to the applicant to challenge same. It is asserted that the investigative panel is relying on its own unstated views and opinions without scientific evidence.
The applicant complains that Dr. Wrate was strongly pro-medication and relied on National Institute for Health and Care Excellence (NICE) guidelines which have not been formally adopted in this jurisdiction. The applicant believes Dr. Wrate swayed other members of the panel.
The applicant contends that independent expert evidence was critical to enable the applicant test and counter Dr. Wrate's views - because of this, the process of the investigation commencing with a letter of the 11th March, 2015, has been irremediably compromised.
The applicant suggests bias on the part of Dr. Wrate because of his pro-medication views and suggests the panel showed bias to him in their inaccurate accounting of witness Dr. Doody's evidence.
Complaint was made as to the witnesses interviewed and indeed witnesses that were not interviewed, together with materials and files which the applicant believes are outstanding.
The applicant maintains that there has been delay in the process and that there is an overlap between this investigation and a prior investigation. He complains his suspension is manifestly unlawful and prolonged, and injunctive relief is sought.
The statement of opposition of the 5th of November, 2018, counters the applicant's claim. Of the entirety of the statement of opposition the following two provisions became relevant: -
(1) At para. 8 the respondent asserts inordinate and unreasonable delay in challenging the preliminary report of the 20th of March, 2018. (The applicant argues in this regard that as no mention is made in para. 8 of 0.84 of the Rules of the Superior Courts this point of opposition does not engage 0.84); and,
(2) At para. 40 the respondent asserts that the applicant did not challenge the panel's expertise or appropriateness to act as investigators at the commencement of the process (in this regard the applicant suggests that this point of opposition cannot be read as raising an estoppel argument as against the applicant).
The statement of grounds is supported by an affidavit of the applicant of the 22nd of July, 2018, which is some 31 pages. The applicant swore two further affidavits to ground his claim, namely one of the 29th of November, 2018, and the final affidavit of the 21st of March, 2019.
The claim is being resisted by the respondent based on three affidavits of David Walsh, HSE Interim National Director, respectively dated the 5th of November, 2018, the 8th of February, 2019, and the 8th of April, 2019.
The applicant is a Consultant Child and Adolescent Psychiatrist attached to the Midlands Regional Hospital in Portlaoise and signed a contract in respect thereof on the 17th of December, 2010.
Prior to the 11th of March, 2015, an investigative process was in train in respect of issues concerning referrals to the Child and Adolescent Mental Health Services (CAMHS) for counties Laois and Offaly.
By letter of the 11th of March, 2015, Mr. Walsh wrote to the applicant stating that a number of cases which were previously referred to CAMHS had been reviewed and clinically reassessed. As a consequence thereof, inter alia, Dr. Garvin did not agree with a number of the clinical assessments made by the applicant. By reason of the foregoing Mr. Walsh reviewed all the files from a management perspective as well as considering communications made to him. Consequently, Mr. Walsh indicated that he, as Chief Officer of the HSE Midlands area had serious concerns about the applicant's clinical practice and that there may have been a serious failure by the applicant to deliver the standards of care required of him as a consultant.
The concerns were set out. Mr. Walsh went on to indicate that if his concerns were well founded the issues would constitute serious negligence and/or a serious dereliction of duty and/or matters considered to be serious misconduct under the applicant's consultants contract. It was indicated that as the issues then raised were of a clinical nature they were considered to be outside the terms of reference of the ongoing investigation aforesaid.
Accordingly, the HSE intended to undertake a separate formal investigation of the matters referred to in the letter of the 11th of March, 2015, from a clinical perspective, under the terms of the applicant's contract. If the concerns were considered well founded a stage four disciplinary hearing could be convened.
Mr. Walsh intended seeking the nomination of suitable experts from, inter alia, the UK. The communication also went on to indicate that Mr. Walsh was considering placing the applicant on administrative leave for such time as may be necessary for the completion of the investigation in accordance with the applicant's contract. The applicant was invited to respond to the communication within seven days.
Although the applicant did respond, no representation was made in respect of the proposal for administrative leave. The applicant, through the IMO, did raise queries as to the overlap in the initial investigation on the proposed investigation mentioned by Mr. Walsh. In the response of the 31st of March, 2015, Mr. Walsh indicated that the proposed investigation was wholly unconnected to the issues raised in the then ongoing investigation. Mr. Walsh indicated that the proposed new investigation would include suitably qualified and experienced clinicians who could assess the clinical concerns that Mr. Walsh had. The letter concluded with a request for submissions by the applicant within a two week period during which time Mr. Walsh would defer any decision on protective measures.
Further communications ensued and it is clear from a letter of the 15th of April, 2015, by the IMO on behalf of the applicant that it was considered still unclear how the proposed investigation substantially differed from the initial investigation.
In a letter of the 12th of May, 2015, Mr. Walsh again wrote to the applicant referring to his serious concerns and his consideration of placing the applicant on administrative leave. Reference was also made to the fact that the applicant had an opportunity to consider the matter and to provide a response, and the letter noted that no views or submissions were made in respect of the consideration of protective measures. In those circumstances Mr. Walsh indicated that he had decided to place the applicant on administrative leave with immediate effect pending the outcome of the investigation and subject to ongoing fortnightly reviews.
Insofar as the differential between the two investigations are concerned, by a letter of the 14th of May, 2015, the IMO indicated that the HSE's position that there are different terms of reference in respect of both investigations was considered understandable, although not echoed in the approach of the initial investigation.
Further communications ensued. However, noteworthy is the fact that the IMO did not continue to maintain a difficulty with a perceived overlap in respect of the two investigations (see for example the letter of the 4th of June, 2015, from the IMO in which proposals in respect of an alternative to administrative leave was put forward. However, the response of the 15th of July, 2015, from David Walsh was to the effect that such suggestions did not assuage his concerns).
In a letter of the 25th of January, 2016, from the IMO, it was indicated that no information had been provided in relation to the investigators suggested by the HSE and it was entirely unclear from the documentation what expertise those individuals possessed appropriate to sit on the investigation team.
In a separate letter of the 26th of January, 2016, the IMO raised an issue on delay with regard to the protective measure of administrative leave. However, in a response of the 16th of February, 2016, Mr. Walsh felt that he had moved promptly to place the applicant on such leave as soon as he had complied with the necessary procedures under the applicant's contract and afforded him fairness in respect of any consideration of same. This letter also indicated that the investigation would require detailed engagement by the investigators with the applicant and also involved engaging with other clinical experts.
By letter of the 30th of March, 2016, having previously obtained biographies in respect of the members of the proposed panel, the IMO confirmed that the applicant accepted the terms of reference as they then stood. On the 15th of May, 2016, the three investigators were ultimately appointed.
In July, 2016 the applicant was exonerated in...
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