Khan v Health Service Executive

JurisdictionIreland
JudgeMr. Justice McMahon
Judgment Date11 July 2008
Neutral Citation[2008] IEHC 234
CourtHigh Court
Date11 July 2008
Khan v Health Service Executive

BETWEEN

SHAFIQ KHAN
PLAINTIFF

AND

HEALTH SERVICE EXECUTIVE
DEFENDANT

[2008] IEHC 234

[No. 1845 P/2008]

THE HIGH COURT

EMPLOYMENT LAW

Injunction

Interlocutory injunction - Disciplinary procedures - Fair procedures - Plaintiff placed on administrative leave with pay - Nemo judex in causa sua - Perception that complainant a participant in disciplinary process - Delay of two months in bringing case - Whether plaintiff entitled to fair procedures - Whether reasonable perception of unfair hearing - Whether higher standard appropriate in mandatory injunction - Whether damages adequate remedy - Whether balance of convenience in favour of injunction - Whether delay inordinate - Campus Oil Ltd v Minister for Industry and Energy (No 2) [1983] IR 88, American Cyanamid Company v Ethicon Ltd [1975] AC 396, Carroll v Bus Átha Cliath [2005] IEHC 1 [2005] 4 IR 184, McNamara v South Western Area Health Board [2001] IEHC 24 (Unrep, Kearns J, 16/2/2001), O'Donoghue v South Eastern Health Board [2005] IEHC 349 [2005] 4 IR 217, O'Neill v Beaumont Hospital Board [1990] ILRM 419, Bergin v Galway Clinic Doughiska Ltd [2007] IEHC 386 [2008] 2 IR 205, Coffey v William Connolly & Sons Ltd [2007] IEHC 319 (Unrep, Edwards J, 18/09/2007) applied; Maha Lingham v Health Service Executive (2006) 17 ELR 137 considered; Murtagh v Board of Management of St Emer's National School [1991] 1 IR 482 distinguished- Health Act 1970 (No 1) - Rules of the Superior Courts 1986 (SI 15/1986), O 56, r 6 - Injunction granted (2008/1845P - McMahon J - 11/7/2008) [2008] IEHC 234

Khan v Health Service Executive

HEALTH ACT 1970

CAMPUS OIL LTD v MIN FOR INDUSTRY (NO 2) 1983 IR 88

AMERICAN CYANAMID v ETHICON 1975 AC 396 1975 2 WLR 316

RSC O.50 r6(1)

CARROLL v BUS ATHA CLIATH/DUBLIN BUS 2005 4 IR 194

MCNAMARA v SOUTH WESTERN AREA HEALTH BOARD 2001 ELR 317 2003/41/9966

MURTAGH v BOARD OF MANAGEMENT OF ST EMERS NATIONAL SCHOOL 1991 1 IR 482

O'DONOGHUE v SOUTH EASTERN HEALTH BOARD 2005 4 IR 217 2005/47/9861

O'NEILL v BEAUMONT HOSPITAL BOARD 1990 ILRM 419

MAHA LINGAM v HEALTH SERVICE EXECUTIVE 2006 17 ELR 137

BERGIN v GALWAY CLINIC DOUGHISKA LTD UNREP CLARKE 2.11.2007 2007 IEHC 386

COFFEY v WILLIAM CONNOLLY & SONS LTD UNREP EDWARDS 18.9.2007 2007 IEHC 319

1

Mr. Justice McMahon delivered on the 11th day of July, 2008

Introduction
2

The plaintiff is a temporary locum consultant psychiatrist with the Health Service Executive, North Eastern area pursuant to a contract of appointment dated the 2 nd August, 2005 and renewed from time to time continuously. The plaintiff was born and educated in Pakistan and came to Ireland in 1996. He is married with four children and has Irish citizenship. He became a member of the Royal College of Psychiatrists in December, 2004 and has been training and working as a psychiatrist since 1996.

3

Under the contract of appointment, the plaintiff is entitled to a combination of disciplinary procedures arising by contract and also disciplinary procedures arising pursuant to the Health Act 1970, as amended. Appendix 4 of the Consultants' Common Contract, inter alia, provides that:-

4

(i) There is a procedure for the placing of a consultant on immediate administrative leave for a period of time to allow for the completion of an investigation in accordance with clause 3 of appendix 4.

5

(ii) The placing of a consultant on immediate administrative leave is a decision reserved for the Chief Executive Officer of the Health Board (or his delegates) where the conduct of a consultant presents an "immediate and serious risk" to the safety, health or welfare of patients or staff.

6

(iii) In placing a consultant on such immediate administrative leave, the Chief Executive Officer (or his delegate) is required to consult with the Chairman or Secretary of the Medical Board.

7

The plaintiff was placed on administrative leave by letter dated the 4 th January, 2008 but no specific provision of the Consultants' Common Contract has been invoked. The plaintiff assumes that the defendant is relying on the provisions of clause 3 of appendix 4 of the Consultants' Common Contract.

8

The defendant has communicated to the Medical Council by way of a letter dated the 18 th January, 2008 that the Health Service Executive has "concerns about Dr. Khan but no evidence that the concerns have validity".

9

The decision to place the plaintiff on administrative leave was made at a meeting on the 4 th January, 2008 and the main complaint that the plaintiff makes in the present proceedings relates to what happened at that meeting. Before I examine the circumstances and the procedures followed at that meeting, however, it is appropriate to note that the origins of the dispute between the parties dates from mid September, 2007 when Dr. Jackson, a colleague and Clinical Director of the Louth/Meath Mental Health Services invited the plaintiff to meet with her in her office in Navan. On that occasion Dr. Jackson phoned Mr. John Kelly, an Employee Relations Manager of the Health Service Executive, to meet with her and the plaintiff. Mr. Kelly explained that Dr. Jackson had requested a meeting and it was intended that the meeting would be an informal one. A meeting was held on the 20 th September, 2007 between Dr. Jackson, the plaintiff and Mr. Kelly. Mr. Kelly mentioned that Dr. Jackson had some issues regarding the plaintiff's clinical practice and that some of his colleagues had brought their concerns to her. When the plaintiff asked for particulars of the concerns and who had raised the concerns he was not furnished with any details. A further meeting between Dr. Jackson and the plaintiff took place on the 11 th December, 2007 at which Dr. Jackson said that there were four patient cases that she was concerned with and that she would like the plaintiff to explain his treatment of these patients to her. Dr. Jackson confirmed that the meeting was an official meeting and that she was meeting with him as Clinical Director. She furnished the names of the four patients. The plaintiff alleges that he was led to believe that the meeting was to be an informal one and he got upset and felt he had been deceived. He also alleges that Dr. Jackson became visibly angry, turned her back on the plaintiff and requested that he leave the room.

10

On the 11 th December, 2007 Dr. Jackson wrote a letter of "complaint" to Anne-Marie Hoey who is the Local Area Manager in the HSE.

11

The plaintiff was due to fly to Pakistan on annual leave on the 13 th December, 2007 and on that day Ms. Hoey wrote a letter to the plaintiff which was to be delivered personally to him. Unfortunately, this was not possible as the plaintiff was already at Dublin Airport. There was some confusion then in relation to the delivery of the letter, the details of which need not concern us at this juncture. Suffice to say that Ms. Hoey intended to call a meeting for the 21 st December, 2007 where Mr. Tevlin from the Human Resources Department of the defendant and Dr. Jackson were to be present. The plaintiff attended for work as normal on the 26 th December, 2007 and worked again on the 31 stDecember, 2007. It was only on that day that he found that another letter, dated the 18 thDecember, 2007 addressed to him and advising him not to take up his clinical duties, had not been delivered and had been posted to the wrong address. A meeting scheduled for the 2 nd January, 2008 was postponed until 4 th January. The plaintiff met with Ms. Hoey personally on the 2 nd January, 2008 and expressed some dissatisfaction with the limited notice he had been given and with the fact that Dr. Jackson, who had already indicated unfriendliness, would be a participant in the meeting, especially since she was also the "complainant" against him. He also indicated his difficulties in obtaining representation. On the same day that Ms. Hoey furnished the plaintiff with the patients' names, he alleged that he had difficulty getting the medical records when he went to look for them. Ms. Hoey rescheduled the meeting for the 4 th January. By that time, the plaintiff was able to identify the six patients about whom concerns were expressed. They had been seen by him between seven months and one year and seven months previously. They were not recent patients and they were all patients he had seen when providing cover for other consultants.

The Meeting of the 4 th January. 2008
12

The plaintiff attended the meeting with Mr. Donal Moore, a representative provided by the Irish Medical Organisation. When he entered the room, seated at the far side of the table were Ms. Hoey, who was the chairperson, her personal secretary, Ms. Keenan, who was merely there to take notes, Mr. Tevlin, Employee Relations Manager for the defendant and Dr. Jackson. The plaintiff and Mr. Moore took their seats on the opposite side. Ms. Hoey advised that the purpose of the meeting related to the correspondence of the 11 th December, 2007 from Dr. Jackson and the letter of the same date from Ms. Hoey requesting a meeting to give Dr. Khan the opportunity to respond to the issues raised in Dr. Jackson's letter. The meeting then discussed the six individual cases in detail. After about three hours of discussions, which consisted of Dr. Jackson raising issues on the specific patients and the plaintiff responding, the plaintiff said he and his representative were asked to wait outside and they left. This was disputed. Ms. Hoey's version was that she called for a break and the minutes of the meeting states "Anne-Marie requested a 5 - 10 minute break". Without determining what exactly was said when the interval was called, it is clear that the plaintiff and his representative left the room and that Ms. Hoey, Dr. Jackson and Mr. Tevlin remained there. Ms. Hoey confirms that this...

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