Rajpal v Robinson

• Jurisdiction: Ireland
• Judge: Mr. Justice Kearns
• Judgment Date: 07 May 2004
• Neutral Citation: [2004] IEHC 149
• Court: High Court
• Docket Number: [No. 63 J.R./2004]
• Date: 07 May 2004

RAJPAL v. ROBINSON & ORS

BETWEEN

PAWAN K RAJPAL

APPLICANT

AND

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

RESPONDENTS

[2004] IEHC 149

[No. 63 J.R./2004]

HC 181/04

THE HIGH COURT

Abstract:

Judicial review - Certiorari - Misconduct/unfitness - Health Act, 1970 - Health (Removal of Officers and Servants) Regulations 1971, SI 110 of 1971 - Whether the third named respondent acted ultra vires in establishing a committee to determine the appropriate sanction to impose in the absence of an inquiry into the allegations of misconduct.

Facts: The applicant was employed as a Consultant Surgeon at Cavan General Hospital, which came under the auspices of the second named respondent. The first respondent was the Chief Executive Officer (CEO) of that Health Board. Following the receipt of complaints against the applicant the CEO suspended him without pay pending an investigation into those allegations. Subsequently, the CEO requested the third named defendant to establish a committee under section 24 of the Health Act, 1970 and the regulations made thereunder, having concluded that the incidents alleged against the applicant represented concerns of substance. Consequently, the applicant sought an order of certiorari by way of an application for judicial review quashing the purported decision and order of the third named defendant by which that respondent purported to establish a committee under the provisions of the 1970 Act to inquire into a proposal by the first and second named respondents to remove the applicant from office.

Held by Kearns J. in granting the relief sought:

1. That it was quite clear from the evidence of the CEO that he completely mixed up in his own mind the procedures to be followed. He mistakenly believed he was required to follow certain procedures provided for by the decision of the Supreme Court in Traynor v. Ryan [2003] 2 I.R. 564.

2. That no proper basis existed for the making by the third named respondent of an order to establish the committee under section 24 of the 1970Act, in circumstances where there was no inquiry by the CEO, no finding of misconduct under section 22 and no proposal to remove the applicant under section 24. The Minister acted ultra vires in ordering the establishment of the committee. The committee had no proper jurisdictional basis for its work. There was also a breach of constitutional and natural justice in proposing to remove the applicant from office before any finding of misconduct had been made against him.

Reporter: L.O'S.

Citations:

HEALTH ACT 1970 S24

HEALTH ACT 1970 S22

HEALTH (REMOVAL OF OFFICERS & SERVANTS) REGS 1971 SI 110/1972

HEALTH (REMOVAL OF OFFICERS & SERVANTS) (AMDT) REGS 1972 SI 165/1972

HEALTH (REMOVAL OF OFFICERS & SERVANTS) (AMDT) REGS 1973 SI 180/173

HEALTH ACT 1970 S23

HEALTH ACT 1970 S22(3)

HEALTH ACT 1970 S22(2)

HEALTH ACT 1970 S22(1)

HEALTH ACT 1970 S23(2)

HEATLH ACT 1970 S23(3)

HEALTH ACT 1970 S23(5)

HEALTH ACT 1970 S24(1)

HEALTH ACT 1970 S24(5)

HEALTH ACT 1970 S24(9)

HEALTH ACT 1970 S24(10)

HEALTH ACT 1970 S24(11)

TRAYMOR V RYAN 2003 2 IR 564

O'CEALLAIGH V BORD ALTRANAIS 2000 4 IR 54

CORRIGAN V IRISH LAND COMMISSION 1977 IR 317

JUDGMENT of

Mr. Justice Kearns

1 delivered the 7th day of May, 2004.

2 In these proceedings the applicant seeks an order of certiorari by way of judicial review quashing the purported decision and order of the third named respondent made on the 24^th October 2003 by which the third named respondent purported to establish a committee under the provisions of the Health Act,1970to inquire into a proposal by the first and second named respondents to remove the applicant from office.

3 The applicant is a Consultant Surgeon who qualified as a medical doctor in Karachi, Pakistan, in 1986. He has practised in Ireland since 1990 and is a Consultant Surgeon practising as such since 1999. In March 1999 he was appointed to the post of Consultant Surgeon at Cavan General Hospital, which comes under the auspices of the second named respondent. At all material times, the first named respondent was the Chief Executive Officer (CEO) of that Health Board. The applicant holds his appointment pursuant to the terms of what is known as the Consultant's Common Contract.

4 At the time of his appointment to Cavan General Hospital, the surgical department was staffed by three consultant surgeons, namely, Mr. Noel McMurray, Mr. William Joyce and the applicant. The applicant in his affidavit asserts that while he always got on well with his colleague, Mr. McMurray, this was not the case with Mr. Joyce. He avers that in June 2002 a number of consultant anaesthetists employed in Cavan General Hospital made a complaint to the Health Board about difficulties they had experienced while working with Mr. Joyce. As a result of this complaint, the CEO put Mr. Joyce on administrative leave pending an inquiry. Thereafter, Mr. Joyce took legal proceedings arising out of the aforesaid decision which said proceedings were comprised, resulting in Mr. Joyce's reinstatement to active duties in December 2002. During the period of his leave, however, Mr. McMurray and the deponent took over Mr. Joyce's patients in Cavan Hospital and expressed some concerns as to their clinical treatment by Mr. Joyce. These concerns were drawn to the attention of the Health Board and a meeting took place in January 2003 attended by Mr. McMurray, the applicant and the CEO, various members of administration and Mr. Finbarr Fitzpatrick, Secretary General of the Irish Hospital Consultants Association at which these issues were discussed. When these concerns were brought to the attention of Mr. Joyce, Mr. Joyce in turn responded on 16^th February 2003 with an extensive catalogue of personal and professional complaints against both Mr. McMurray and the applicant, but more particularly the latter. Thereafter, Mr. Joyce raised further complaints against the applicant on 19^th February, 26^th February, 24^thMarch and 16^th May, 2003, amounting to a total of 99 separate complaints.

5 On 20^th February, 2003, the first named respondent wrote to the applicant on foot of the complaints raised at that point by Mr. Joyce seeking a response from the applicant in accordance with appendix IV (1)(b) of the Common Contract. Thereafter extensive and lengthy correspondence was exchanged between the applicant and the CEO over a period of several months. Eventually on 30^th June 2003, the CEO wrote to the applicant to inform him that he intended hearing the persons he considered relevant to his enquiry and a meeting for that purpose was eventually convened at the Park Hotel in Virgina, Co. Cavan on 21^st July 2003. This meeting was concerned not only with complaints against the applicant raised by Mr. Joyce, but also concerns raised by the applicant in relation to Mr. Joyce's clinical practice and his personal relationship with the applicant since his appointment. The applicant attended the meeting with an extensive booklet of documents on all of the matters raised by Mr. Joyce which he was anxious to submit and discuss with the CEO to support his contention that Mr. Joyce's complaints against him had no substance. The meeting took approximately three hours, during which no evidence was taken from any party, nor were other persons interviewed other than the three surgeons. On the occasion in question, the CEO declined to accept the bulky dossier of documents which the applicant tendered.

6 In the course of his evidence to this court, Mr. Robinson stated his position. He informed the court that it was common knowledge in the hospital that severe interpersonal problems existed between the applicant and Mr. Joyce. By way of background information, he had statements from non consultant hospital doctors in relation to those difficulties and also two reports from a firm of risk management consultants and from an organisation known as St. Paul's Consultancy Services, all of which reported a volatile situation in the hospital and which suggested the situation was quite dangerous. In relation to the complaints, Mr. Robinson told the court that he didn't uphold or discard any. He concluded they were not frivolous, but were all complaints of substance. He was, however, able to filter out some complaints, including those which raised ethical considerations, including all in relation to Mr. McMurray and also all complaints in relation to clinical issues, which had been separately investigated and resolved by Professor Arthur Tanner.

7 In relation to the remaining complaints of misconduct about each other by both the applicant and Mr. Joyce, Mr. Robinson felt the best course was to refer further investigation to a committee to be appointed for that purpose under the Health Act,1970. At par. 13 of his main affidavit, Mr. Robinson deposes that, after considering representations made on behalf of the applicant at the meeting of 21^st July 2003, he formed "the opinion that the applicant had misconducted himself in relation to his post or was otherwise unfit to hold office. I believe also that this opinion (which I formed after a three hour meeting with the applicant along with all documents furnished) was a reasonable one, while it was a precursor to the statutory enquiry which was subsequently established by the third named respondent for the purpose of enquiring into the alleged misconduct or unfitness. It is my belief therefore that it was not and is not necessary for me to carry out the comprehensive investigation which is the preserve of the committee charged with investigating the allegations of misconduct or unfitness to hold office since this would render the committee's role otiose."

8 Thereafter on 18^th August the CEO having consulted with the Chairman of the North Eastern Health Board, suspended the applicant from the performance of the duties of his office while "the alleged misconduct...