McNamara v South Western Area Health Board

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Kearns
• Judgment Date: 16 February 2001
• Neutral Citation: [2001] IEHC 24
• Docket Number: No. 628 JR/2000
• Date: 16 February 2001

MCNAMARA v. SOUTH WESTERN AREA HEALTH BOARD

JUDICIAL REVIEW

BETWEEN

CATHERINE McNAMARA

APPLICANT

AND

SOUTH WESTERN AREA HEALTH BOARD

RESPONDENT

[2001] IEHC 24

No. 628 JR/2000

THE HIGH COURT

Synopsis:

Employment

Employment; judicial review; applicant seeks judicial review of suspension from her employment; applicant is a consultant orthodontist attached to St. James' Hospital, Dublin, under the respondent's administration; applicant had been suspended without pay for alleged misconduct in relation to her office; whether the applicant's suspension invoked fair procedures or not; whether the applicant was denied fair procedures regarding the decision to suspend; whether the existence of statutory procedures, and the fact that this was the first step therein, absolved the respondents from the obligation to discharge those responsibilities in a fair, responsible and reasonable manner; whether the suggestion of misconduct made by respondent meant that some statement of the applicant's position on the matters at issue should have been obtained before proceedings to suspend; ss. 22, 23 & 24, Health Act, 1970.

Held: Application granted.

McNamara v. South Western Area Health Board - High Court: Kearns J. - 16/02/2001

The case concerned the suspension of the applicant from her position as a consultant orthodontist. The applicant claimed that fair procedures had not been followed by the respondent. Kearns J acceded to the arguments of the applicant and granted the relief sought.

Citations

HEALTH ACT 1970 S22

HEALTH ACT 1970 S22(1)

HEALTH ACT 1970 S22(5)

HEALTH ACT 1970 S23

HEALTH ACT 1970 S24

HEALTH (REMOVAL OF OFFICERS AND SERVANTS) REGULATIONS 1971 SI 110/1971

O'CEALLAIGH V BORD ALTRANAIS 2000 4 IR 102

FRENCH CHURCH PROPERTIES V WEXFORD CO COUNCIL 1992 2 IR 268

KIBERD V HAMILTON 1992 2 IR 257

PHILIPS V MEDICAL COUNCIL 1992 ILRM 469

DE SMITH ON JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 4ED 1980 199

REES V CRANE 1994 2 AC 173

DEEGAN V MIN FOR FINANCE 2000 ELR 191

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

1 JUDGMENT of Mr. Justice Kearnsdelivered this 16th day of February 2001.

2 The Applicant is a Consultant Orthodontist attached to St. James Hospital in Dublin which is under the administrative control of theRespondents.

3 The Applicants" function as an officer of the Health Board was to operate and develop an efficient orthodontic service for public health patients in the Dublin region. She had previous experience between 1992 and 1996 in developing such a service on behalf of the Western HealthBoard.

4 The genesis of the present difficulties between the parties derives from the huge waiting lists in the Dublin area for orthodontic services. In 1996 some 18,000 patients were on the waiting list, so that the Applicant and her team were confronted with a huge clinical load. She initially had a team of some 9 dentists. The Applicants approach to the daunting challenge which the waiting lists presented was to concentrate a large part of her own energies on diagnostic aspects of orthodontic work. She would then allocate treatment functions to the various members of her team. While occasionally she would treat patients herself, and was available to help in individual cases where necessary, her functionsweremainly supervisory. Of course, in a wider sense, she had the obligation to develop and foster the service as part of a team effort.

5 The Applicant and her team succeeded in reducing the waiting list to 6,600 in 1999 in the Dublin area. This figure had risen to 11,000 by the year 2000, constituting, in the words of Counsel, an "acute crisis" in the public orthodontic services in the Dublinregion.

6 From 1998 onwards, difficulties arose between the Applicant and the Respondents because of their differing approaches as to how this case load could best be handled. In particular, there were poor working relations between the Applicant and Mr. Seamus O'Brien who took over the management of the orthodontic service in February 1998.

7 On the 4th November, 1999 the Applicant was suspended because she refused to work a system which she considered to be unsafe. TheRespondents" for their part felt the suspension was justified on the basis the Applicant had withdrawn consultant cover and refused to provide guidance to dental clinicians regarding orthodonticprocedures.

8 The letter dated 4th November, 1999 advising the Applicant of her initial suspension also cited additional reasons, including the alleged refusal of the Applicant to carry out administrative duties, refusal to co-operate in the management and development of the orthodontic service and refusal to comply with the legitimate directions of the programmemanager.

9 After lengthy negotiations, which involved legal advisors on both sides, the Applicants" suspension was lifted in January 2000 on the basis that the Applicant unconditionally accepted and agreed to comply with the specific duties attaching to her office which were defined in a letter from the Respondents" Solicitors dated 1st December,1999.

10 This undertaking required the Applicant to comply fully with her conditions of employment, carry out her administrative duties in accordance with the conditions of appointment, to report to and comply with all legitimate directives given by the programmemanager and to work closely with those responsible for the day to day management of the orthodontic service.

11 However, following the Applicant's return to work, the same problems and difficulties represented themselves culminating in a letter dated 24th August, 2000 from Mr. Seamus O'Brien to the Applicant wherein he pointed out that he would be forced to recommend that the Applicant would again be suspended unless he received from the Applicant evidence of her commitment and preparedness to immediately co-operate in the provisions of the orthodontic service as outlined in the letter.

12 His letter referred to a plan which had been drawn up and approved by the Respondent board to deal with the waiting list of patients awaiting assessment and treatment. The key elements of this plan, which the Applicant had been notified by letter dated 6th July, 2000, included the immediate employment of one locum consultant orthodontist, the appointment of 6 community orthodontists from existing M. Orth. staff, the recruitment of 3 Senior managers and approval for the recruitment of additional clinicians, nursing and administrative staff.

13 The letter also stated:-

"Any careful and reasonable examination of your actions since your return to duty from suspension in February of this year would indicate an unwillingness on your part, not only to comply with the terms and conditions of your employment, but also with the terms and conditions, the basis on which the Chief Executive Officer of the Eastern Health Board recommended to the Minister for Health that the suspension which commenced on the 4th February, 1999 beterminated."

14 As far as the Applicant was concerned, Mr. O'Brien's letter provided the clearest possible proof that, in referring to details of an elaborate recruitment campaign in respect of the service, the Applicant was, at that time, being forced to manage an impossible workload.

15 The gravity of the situation is apparent from Mr. O'Brien's statement in his letter that action was required from the Applicant to progress the provision of treatment to patients who have been left without treatment for up to 1 year and that she should co-operate fully with the boards plans. In addition to the recruitment proposals outline above, Mr. O'Brien's letter also required of the Applicant that she personally immediately commence active treatment of as many as possible of the patients "who have been left without treatment for up to 1 year", that the Applicant agree to accept referrals from the community orthodontists, that she co-operate in the arrangements to be put in place by the board to have "the interrupted patients and new patients treated by competent clinicians from outside the board" and that she co-operate with any other consultant orthodontist employed by the board in the provision and development of orthodontic treatment and services. She was also called upon to provide data from February - August 2000 outlining the productivity of all clinicians working in the Regional Orthodontic Unit, to be submitted to Mr. David Walsh, Senior Executive of the Respondent, by 6th September, 2000. On the 4th September, the Applicant furnished a report providing the data sought.

16 By letter dated 13th September, 2000, Mr. David Walsh requested a detailed report from the Applicant regarding the provision of orthodontic services by her, specifically with regard to "how many of the patients started by you personally during the period (from February 7th, 2000 to September 1st, 2000) are in fact in active treatment rather than merely reviewed". His letter expressed concern that there had been numerous enquiries from patients and their parents in relation to the provision of orthodontic treatment, someenquiriessuggesting that treatment had been interrupted for periods up to 1 year, with many patients expressing fears that such long delays might cause damage to their teeth. The letter also sought clarification of a suggestion that the Applicant was providing no further appointments topatients.

17 On the 15th September, 2000 the Applicant furnished a 13 page report setting out the difficulties with the service as she saw them, the nub of which was the impossible clinical load with which she had beenburdened.

18 She pointed out that she was doing her best to provide a service for over 3,000 orthodontic patients with 2.4 dentists. She pointed out that treating cases personally restricted her ability to supervise considerably and limited her ability to ensure the safety of the large number of patients which she needed to review. In...