State (Hamad) v N. Eastern Health Board
| Jurisdiction | Ireland |
| Judge | Ellis J. |
| Judgment Date | 20 January 1982 |
| Neutral Citation | 1982 WJSC-HC 2082 |
| Docket Number | No. 226 S.S/1981 |
| Court | High Court |
| Date | 20 January 1982 |
1982 WJSC-HC 2082
THE HIGH COURT
This is an application by the Prosecutor to make absolute a Conditional Order of Certiorari made on 18th May 1981 (Doyle J.) notwithstanding cause shown.
(1) that by Order No. 255-1981 dated 31st Maroh 1981 of the then Chief Executive Officer of the North-Eastern Health Board the Prosecutor was suspended from the performance of his duties as Temporary Registrar of the Surgical Hospital Cavan on the grounds of misconduct and fitness.
(2) that by Order No. 299-1981 dated 21st April 1981 of the Chief Executive Officer of the said Board, being the second named Respondent, the Prosecutor was given notice of the second named Respondent's intention to remove him from his said position and
(3) that by Order No. 326-1981 dated 28th April 1981 of the second- named Respondent, the Prosecutor was given and received notice of removal from his said position.
By the said Conditional Order the Respondents were directed to send before this Court for the purpose of being quashed the said three Orders and all records and entries relating thereto on the grounds set out in paragraph 1O(g) of the Prosecutor's Affidavit grounding his application.
The surgical Hospital, Cavan, is administered under the Health Acts by the first-named Respondent of which the second-named Respondent at all material times was the duly appointed Chief Executive Officer.
By Order of 23rd January 1981 the temporary appointment of the Prosecutor to the office of Surgical Registrar in the Surgical Hospital Cavan in the employment of the first-named Respondent for the period 7th January 1981 to 30th June 1981 was duly approved and made on behalf of the Board pursuant to the provisions of Section 14 of the Health Act1970(to which I shall refer as the Act) whereby the Prosecutor became an Officer and or servant of the Board according to the terms and conditions of his said appointment and employment.
The following are the statutory provisions and regulations relating to the procedures and requirements to be followed by the Respondents leading up to and including the removal of the Prosecutor from his said position.
Section 22(1) of the Act relates to the suspension of the Prosecutor and provides as follows -
Section 22(1) - Whenever, in respect of an officer of a health board other than the chief executive officer, there is, in the opinion of the chief executive officer, reason to believe that the officer has misconducted himself in relation to his office or is otherwise unfit to hold office, the chief executive officer may, after consultation with the chairman or, in his absence, the vice-chairman of the board, suspend the officer from the performance of the duties of his office while the alleged misconduct or unfitness is being inquired into and any disciplinary action to be taken in regard thereto is being determined.
Section 23(1) and Section 23(5) of the Act relate to the removal of the Prosecutor from his position (being an officer of the Board other than a permanent officer) and provides as follows-
Section 23(1) - Subject to subsections (2) to (4), an officer or servant of a health board appointed under section 14 may be removed from being such officer or servant by the chief executive officer to the board.
Section 23(5) - Removals of officers and servants under this section shall be carried out in accordance with regulations made by the Minister and such regulations shall provide-
(a) that effect shall not be given to any proposal for removal unless prescribed notice has been sent to the officer or servant of the reasons for the proposal, and
(b) that any representations made by him or on his behalf on the proposal which are recieved within a prescribed period shall be considered.
The Regulations made by the Minister for Health under Section 23(5) are contained in S.I. No. 110 of 1971 entitled Health (Removal of Officers and Servants) Regulations 1971 and the Health (Removal of Officers and Servants (Amendments) Regulations 1972. The Amending Regulations of 1972 are not relevant to the issues in the case. The relevant regulations contained in S.I. No. 110 of 1971 provide as follows:-
4. (1) Whenever it is proposed to remove an officer or servant of a health board from being such officer or servant, the officer or servant shall be given notice in writing by the chief executive officer or an officer authorised to act on his behalf-
(c) that the chief executive officer will consider any representations made by him or on his behalf before the expiration of seven days after the giving of such notice;
(d) of details of any proposal to appoint him to another office or employment.
(2) Effect shall not be given to any proposal for removal until notice of the intention to remove has been given in accordance with sub-article (1) of this article and until any representations made by or on behalf of the officer or servant have been considered.
The said Order No. 255/1981 dated 31st March 1981 reads as follows:-
| SUBJECT: | Suspension of Dr. Asim Hamad, Temporary Registrar, Surgical Hospital, Cavan. |
| ORDER: | There being in my opinion as Chief Executive Officer reason to believe that Dr. Asim Hamad, Temporary Registrar, Surgical Hospital, Cavan, has misconducted himself in relation to his employment or is otherwise unfit to hold employment in that- |
(a) at 2.30 p.m. on the 27th March, 1981, at the Surgical Hospital, Cavan, Dr. Hamad assaulted Mr. N. McMurray, Consultant Surgeon;
(b) his behaviour indicates that he is no longer a suitable person to continue in employment;
I hereby suspend Dr. Hamad from the performance of his duties with effect from today's date, while the alleged misconduct or unfitness is being enquired into and any disciplinary action to be taken in regard thereto is being determined.
No issue has been raised that this order of suspension was signed by Mr. P. Murtagh who, it is accepted, although not a party, was then filling the post of Chief Executive Officer of the Board.
On receipt of this suspension order Messrs. George V. Maloney and Co., the Prosecutor's Solicitors, wrote on his behalf to the Board a letter dated 3rd April 1981 denying the allegations made against the Prosecutor and requesting a detailed statement of all the circumstances surrounding them, and requesting that the matter be referred to an independent arbitrator to hear and determine the dispute. This was followed by a letter in reply dated 8th April 1981 from the Chief Executive Officer and second named Respondent Mr. Clarke dealing with the statutory procedures required of him to be followed under the Act, and setting out in detail the information which had been furnished to him on which the statutory disciplinary procedures were being taken in respect of the Prosecutor. Under cover of a letter dated 16th April 1981 Messrs. George V. Maloney and Co. sent a detailed written statement of the Prosecutor dated 15th April 1981 to the second Respondent in which the Prosecutor denied in detail the allegations and complaints made against him.
On 21st April 1981 Mr. Clarke caused to be given to the Prosecutor the said Order No. 299/1981 dated 21st April 1981 by personal service on him at 2.50 p.m. on that date. This order constituted the intention by Mr. Clarke to remove the Prosecutor from his position and read as follows:-
TAKE NOTICE that in exercise of the powers conferred on me in that behalf by the Health Act,1970, and in accordance with the Health (Removal of Officers and Servants) Regulations, 1971, and the Health (Removal of Officers and Servants) (Amendments) Regulations, 1972, it is my intention to remove you, Dr. Asim Hamad, from your position as a Temporary Officer of the North Eastern Health Board for the following reasons:-
1. That being a Registrar in the County Surgical Hospital, Cavan, you misconducted yourself in relation to your office in that-
(a) at 2.30 p.m. on the 27th March, 1981, at the County Surgical Hospital, Cavan, you assaulted Mr. N. McMurray, Consultant Surgeon;
(b) your behaviour indicates that you are no longer a suitable person to continue in employment.
2. By virtue of the aforesaid misconduct, you are unfit to hold the office of Registrar with the North Eastern Health Board.
3. I will consider any representations made by you or on your behalf before the expiration of seven days after the giving of this Notice to you.
4. It is not my intention to appoint you to another office with the North Eastern Health Board.
Cavan.
On 22nd April 1981 Mr. Clarke wrote to Messrs George V. Maloney and Co. enclosing them a copy of his order No. 299/1981 and stating in the first and last paragraphs thereof that:-
"I enclose a copy of my order to Dr. Asim Hamad. As you will see this order has the effect of terminating Dr. Hamad's employment with our Board."
"I trust that the above correspondence and copy of my enolosed order will now finally resolve this situation."
On 28th April 1981 Mr. Clarke caused to be served personally on the Prosecutor on that date at 4.05 p.m. his said Order No. 326/1981 dated 28th April 1981 and a copy thereof on his Solicitors at 4.10 p.m. on the same date removing the Prosecutor from his position as a temporary officer of the Board.
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Michael Hickey
...by the word 'from'. 13 The next case in sequence is the judgment of Ellis J. in The State (Hamad) v. North Eastern Health Board [1982] 1 JIC 2001 which called for the interpretation of a provision of the Health (Removal of Officers and Servants) Regulations, 1971 by which was provided for ......