Traynor v Ryan

JudgeFennelly J.
Judgment Date04 June 2003
Neutral Citation[2003] IESC 36
CourtSupreme Court
Docket Number[S.C. No. 245 of 2002]
Date04 June 2003





[2003] IESC 36

Murray J.

McGuinnes J.

Fennelly J.






Hospital consultants" common contract - Disciplinary procedure - Complaints - Meaning of word complaint - Investigation - Function of investigator - What findings can be made - Whether investigating body has power to refer matter to minister (245/2002 - Supreme Court - 4/6/2003)

Traynor v Ryan - [2003] 2 IR 564

The appellant worked as a consultant anaesthetist with the respondent hospital which employment terms were under the consultants' common contract. She was notified by letter in accordance of the contract of an investigation of complaints made against her. The letter informed her of an investigation of six matters complained of and that she was to take paid leave. Further correspondence was sent by the respondent to the appellant's solicitors. The appellant sought an injunction regarding her suspension but this was settled. In effect they agreed that the investigation should proceed on agreed terms and that she would appear before the respondent. The terms were complied with. On the conclusion of the investigation the respondent issued his decision and upholding five of the six complaints against the appellant. In accordance with the terms of the common contract the respondent wrote to the Minister for Health to appoint a committee to inquire into the matter. The High Court refused an application by the appellant seeking an order to quash the respondent's decision to refer to the Minister. From that decision she appealed to the Supreme Court. The essential grounds put by the appellant were: (1) In four of the five cases there was no complaint in the sense of the common contract and (2) The respondent did not have the qualifications to entitle him to reach substantive conclusions on the alleged complaints.

Held by Fennelly J (Murray and McGuinness JJ concurring) in dismissing the appeal: Legal submissions were made on the meaning of the word "complaint". It was submitted by the appellant as to whether a communication constituted a complaint whereas the respondent submitted that there was no requirement in the disciplinary procedure that an investigation may be initiated only following a complaint. Fennelly J found that the investigation or decision was not invalidated by the use of the term complaints and whether one or more of the letters did not make or intend to make a complaint. Dealing with the second issue, Fennelly J found the function of the respondent was to determine was there a complaint of substance to be referred to the Minister. O'Flynn v Mid-Western Health Board [1991] 1 IR 223 followed.

Obiter dicta: There is a regrettable tendency in some employment cases to treat procedural safeguards as the real battlefield, in preference to facing the substance of complaints in accordance with agreed procedure. The consequences often delays resolution and ads to cost.







4th day of June,2003by Fennelly J.

Fennelly J.

The Plaintiff/Appellant (hereinafter "the Appellant") is employed as a Consultant Anaesthetist at the Coombe Women's Hospital (hereinafter "the hospital"), which is a voluntary private hospital, not a health board hospital. The Respondent is the Secretary and General Manager of the hospital. This is an appeal from the judgment and order of McCracken J dated the 17th of July 2002, wherein he rejected the claim of the Appellant for an order quashing a decision of the Respondent to refer certain matters to a committee to be appointed by the Minister for Health (hereinafter "the Minister") pursuant to the disciplinary provisions of the Consultants" Common Contract (hereinafter "the Common Contract").


The Appellant was first appointed as Consultant Anaesthetist to the hospital in 1986. Her employment is governed by the terms of the Common Contract. Her present contract is dated 4 th February 1998. She is also a consultant, though it is not relevant to this case, to St. James's Hospital. She was placed on administrative leave with pay, pursuant to paragraph 3 of Appendix IV, in June 2001. This case concerns the ensuing disciplinary procedures.


It is common case that Appendix IV to the Common Contract contains the applicable Disciplinary Procedure. There is a Preamble, followed by two paragraphs providing for the investigation of matters of concern. Paragraph 4 enumerates the powers of the Chief Executive Officer, following investigation. THe preamble is as follows:

"The purpose of the disciplinary procedure is to ensure that complaints concerning the competence, capability or conduct of consultants will be dealt with in a matter [sic, recte manner] which has due regard to the rights and obligations of the parties. Where a complaint concerning a consultant is considered under this procedure it shall be dealt with expeditiously while affording the consultant adequate opportunity to reply to any complaint or allegation made against him. The consultant shall be entitled to be represented at all stages of the procedure should he so desire."


There follow paragraphs 1 and 2:

"1. Where:"

(a) The Chief Executive Officer of a Health Board or

(b) The Chief Executive Officer, Secretary/Manager of a hospital or some other person authorised by him of a hospital not being a Health Board hospital


- hereinafter called "the appropriate person", is concerned that a consultant may have failed to comply with any of the terms of his appointment or may have otherwise misconducted himself in relation to his appointment, he shall notify the consultant in writing of the reasons for such concerns and inform him that any representations in regard to the matter may be received by the Chief Executive Officer or the appropriate person, as the case may be, from the consultant within two weeks of the issue of the notification and will beconsidered.


2. A complaint relating to an individual living patient shall not be considered except where:-


(a) It is made by the patient, by a member of his family or by the employer, colleagues, statutory authorities or, by another person with the written consent of, the patient or where the patient is a child, of his parent or guardian and it is in writing and signed by the person making it, and


(b) It is made within six weeks of the alleged event in relation to which the complaint is made or within or within such longer period as appears reasonable to the Chief Executive Officer or the appropriateperson."


Paragraph 4 provides:

"4. The Chief Executive Officer of a Health Board, Chief Executive Officer, Secretary/Manager of a hospital or another health agency or the appropriate person, after consideration of any representations which the consultant may make in regard to the matter, and after carrying out such further examination into the matter as he considers necessarymay:-"


a) if he is satisfied that the matter was trivial or without foundation, so inform the consultant in writing or,


(b) if he is satisfied that the consultant had not complied with the terms of his appointment or had otherwise misconducted himself in relation to his appointment, and if he thinks fit, issue a warning or other like communication to the consultant or,


(c) where he is the Chief Executive Officer of a Health Board, decide to act in accordance with the provisions of sections 22, 23 and 24 of the Health Act, 1970and the regulations made thereunder or,


(d) where he is not the Chief Executive Officer of a Health Board, decide to act by way of the following analogousprovisions."


Paragraph 5(1) provides:

"5.(1) Where the appropriate person decides to proceed under the provisions of paragraph 4(d), he may request the Minister to appoint a committee under this paragraph to inquire into the matter and the Minister shall thereupon appoint such a committee."


The ensuing parts of paragraph 5 deal with the composition and appointment of the committee. It is to consist of five persons: a chairman appointed by agreement of the Irish Medical Organisation, the Irish Hospital Consultants Association and the " appropriateperson" pursuant to paragraph 1; two persons selected by the Minister from lists supplied by the Irish Medical Organisation; two persons selected by the Minister following consultation with the employing body.


The initiating act in the procedure in the present case took the form of a letter of 21st June 2001, in which Ms. Carol Kenny, the Acting Secretary and General Manager of the hospital said she was writing to the Appellant "in accordance with the Disciplinary Procedure provided for in [the Appellant's] contract of employment with the hospital ... to formally inform [her] of ......concerns in relation to [her] conduct as a ConsultantAnaesthetist." He went on to say that the "concerns [arose] from a number of complaints madeby [the Appellant's] colleagues in relation to [her] alleged behaviour from September 2000 to date."


The letter went on to refer to six particular matters, describing each of them as a "complaint." In five cases, the alleged complaint was stated to be in writing and in the sixth the letter stated that the Master of the hospital had received a verbal complaint but that it was expected that this complaint would also be made in writing.


For reasons which will appear later in this judgment, it is not necessary and in fact it is undersirable, to detail the nature or substance of the stated complaints. It is not the function of this Court to comment upon them to any extent. It is sufficient to say that they all related to the alleged behaviour of the Appellant while performing her duties as Consultant...

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