Rajpal v Robinson

• Jurisdiction: Ireland
• Judge: Mr. Justice Hardiman
• Judgment Date: 09 June 2005
• Neutral Citation: [2005] IESC 39
• Court: Supreme Court
• Docket Number: [S.C. Nos. 286 and 291 of 2004]
• Date: 09 June 2005

RAJPAL v ROBINSON & ORS

Between:

PAWAN RAJPAL

Applicant

and

PAUL ROBINSON, THE NORTH EASTERN HEALTH BOARD and THE MINISTER FOR HEALTH AND CHILDREN

Respondents

[2005] IESC 39

Murray C.J.,

Denham J.

Hardiman J.

286/04

291/04

THE SUPREME COURT

PROFESSIONS:

Medical profession

Disciplinary procedure - Misconduct - Proposal to remove - Statutory committee - Whether proposal to remove necessary before committee could be established under s 24 of the Health Act 1970 - Suspension - Whether suspension without pay punitive in its effect - Fair procedures - Whether obliged to consider all representations prior to ordering suspension without pay - Whether allegation of specific misconduct or unfitness necessary before suspension without pay valid - Health (Removal of Officers and Servants) Regulations 1971 (SI 110/1971), reg 4 - Health Act 1970 (No 1), ss 22, 23 and 24 - Certiorari granted (286 & 291/2004 - SC - 9/6/2005) [2005] IESC 39

Rajpal v Robinson

Facts: The first named respondent informed the applicant by letter that he had reason to believe the applicant misconducted himself in relation to his office or was otherwise unfit to hold office and he decided to suspend him pending an investigation into the alleged misconduct or unfitness pursuant to s. 22 of the 1970 Act. The first named respondent also requested the Minster for Health and Children to establish a committee under s. 24 of the 1970 Act to investigate the alleged misconduct. The applicant sought by way of an application for judicial review an order of certiorari quashing the order made by the Minister purporting to establish that committee.

Held by the Supreme Court (Murray C.J., Denham, Hardiman JJ) in affirming the order of certiorari made by the High Court:

1. That the first named respondent requested the appointment of a statutory committee, and no other. By virtue of s. 24 of the 1970 Act the Minister was obliged to appoint a committee whenever it was proposed to remove a permanent officer. However, the first named respondent never made any proposal to remove the applicant from office, he never gave the applicant any notice of any intention to remove him or of the reasons for such a removal and accordingly the appointment of the committee was invalid.

2. That the suspension of the applicant was designed to last only while the alleged misconduct of the applicant was being enquired into. Given that the committee adopted to investigate the alleged misconduct was invalidly constituted and no specific misconduct was alleged by the first named respondent, the suspension was also invalid.

Reporter: L. O'S

HEALTH ACT 1970 S22

HEALTH ACT 1970 S24

HEALTH ACT 1970 S23

HEALTH ACT 1970 S24(1)

TRAYNOR v RYAN 2003 2 IR 564

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

HEALTH ACT 1970 S22(1)

1 Mr. Justice Hardiman delivered the 9th day of June, 2005.

2 The factual background of this appeal, and the contractual, statutory and regulatory provisions affecting it, have been so fully set out in the judgment of the High Court (Kearns J.) delivered the 7th May, 2004, that it is unnecessary for me to repeat them. I gratefully adopt them as the essential background to this judgment.

3 It is clear that the dispute between Mr. Rajpal and his employers arises from the very difficult relationship which has developed between him and another consultant surgeon working in the same hospital, Mr. Joyce. This led, in the period from January to May, 2003, to each consultant making multiple allegations of a personal and professional nature against the other. The language and tone of these complaints clearly indicate that there has been a collapse of normal personal and professional relations between the two gentlemen and that, to put it mildly, each is extremely wary and defensive in his dealings with the other. That state of affairs clearly represents a great difficulty for the surgeons themselves and for the management of the hospital involved.

4 The Court's concern, however, is not with the merits of this dispute. Neither is it the Court's function to become directly involved in the human and managerial problems of the former North Eastern Health Board, acute though these may be. This is a matter in the first instance for the first and second-named respondents, and they have elected to address these issues in terms of particular statutory, regulatory and contractual provisions which involve the characterisation of the applicant's actions as amounting to, or possibly amounting to, misconduct or unfitness.

Mr. Robinson's letter of the 18th August, 2003.

5 The content of this letter is the initial focus of the Applicant's complaint. The substance of it is contained in the third paragraph:

"In the case of the complaints/concerns of inappropriate behaviour against you I have concluded that these represent complaints/concerns of substance, which cannot be resolved in a summary fashion. In my opinion I have reason to believe that you have misconducted yourself in relation to your office, or that you are otherwise unfit to hold office. After consultation with the Chairman of the Board it is my decision to suspend you from the performance of the duties of your office while the alleged misconduct or unfitness is being enquired into, and any disciplinary action to be taken in regard thereto is being determined. My decision is taken in accordance with section 22 of the Health Act, 1970."

6 The next paragraph contained the information that

"I shall request the Minister for Health and Children to establish a committee under s.24 of the Health Act, 1970, and regulations made thereunder".

7 A process of correspondence and meetings, notably a meeting of the 21st July, 2003, in which Mr. Robinson had engaged in prior to the 18th August, 2003, was seen by him as "The procedure specified in Appendix IV, paragraph 4 of the contract". (Mr. Robinson's report of the 18th August, 2003). The term "contract" means the Consultants Common Contract.

8 Paragraph 4(c) entitled Mr. Robinson, since he was the Chief Executive Officer of the Health Board, to "decide to act in accordance with the provisions of sections 22, 23 and 24 of the Health Act, 1970, and the Regulations made thereunder". If he had not been the Chief Executive Officer of the Health Board, paragraph 4(d) would have applied to him, enabling him to "act by way of the following analogous provisions".

9 The learned High Court judge held that "It is quite clear from the evidence of Mr. Robinson in this case that he completely mixed up in his own mind the appropriate procedures to be followed". I believe that this conclusion is fully justified, based on a perusal of transcript of Mr. Robinson's evidence. It was accepted on behalf of the first and second-named respondents that Mr. Robinson "had indeed conflated the various procedures...". Like the learned trial judge, I have a great deal of sympathy for the position in which Mr. Robinson found himself by reason of the (as it seems to me) quite unnecessary complexity and confusion inherent in the existence of two separate but, according to the Common Contract, "analogous" procedures. These are the statutory one contained in sections 22 – 24 of the 1970 Act and the contractual procedure contained in paragraph 5 of Appendix IV of the contract. Which of these procedures is to be adopted depends, not on the nature of the case or the gravity of the allegations but on the rank of the person making the decision to refer particular complaints to a committee.

10 Specifically, s.24(1) of the Act provides that:

"Whenever it is proposed to remove a permanent officer of the Health Board under s.23 because of misconduct... or unfitness, the Minister shall appoint a committee to perform the functions specified in this section relating to the proposal for such removal".

11 By contrast to this, an "appropriate person" who is entitled to proceed under paragraph 4 of Appendix IV may "request the Minister to appoint a committee under this paragraph to enquire into the matter and the Minister shall thereupon appoint such a committee".

12 The distinction between the two procedures is self evident. The statutory committee under s.24 is to perform functions "relating to the proposal for ...removal". The Minister must appoint such a committee "whenever it is proposed to remove a permanent officer". The appointment of a statutory committee, accordingly, is triggered by a "proposal" to remove. But a committee established under the appendix to the contract does not require any such proposal in order to be called into being and its functions are much more general: to "enquire into the matter". The contractual committee, may, in addition to recommending termination of the consultant's appointment may recommend a period of unpaid suspension, the deduction of a sum from the consultant's pay or an admonition. A statutory committee "having inquired into the proposal to remove the officer, shall make such recommendations to the Chief Executive Officer as it shall think fit."

13 It is quite clear from Mr. Robinson's letter of the 18th of August, and from the report of the same date which accompanied it that Mr. Robinson requested the appointment of the statutory committee, and no other. When, subsequently, the applicant complained that he had been suspended without pay even though the contract provided in certain circumstances for paid "administrative leave" Mr. Robinson rejoined that:

"My decision to suspend you is pursuant to Appendix IV paragraph 4 of the Consultants Common Contract and there is no provision within paragraph 4 to place you on administrative leave." (Emphasis added)

14 The Committee was then appointed on the 24th September, 2003, and...