Walsh v Health Service Executive (HSE)
| Jurisdiction | Ireland |
| Judge | Mr. Justice O'Keeffe |
| Judgment Date | 09 June 2009 |
| Neutral Citation | [2009] IEHC 369 |
| Court | High Court |
| Date | 09 June 2009 |
[2009] IEHC 369
THE HIGH COURT
BETWEEN
AND
MCCORMACK v GARDA SIOCHANA COMPLAINTS BOARD 1997 2 IR 489
DUFFY v COMMISSIONER OF AN GARDA SIOCHANA UNREP MCGUINNESS 10.7.1998 1998/17/6552
TIERNEY v POST UNREP MCCRACKEN 1999 ELR 293
FLANAGAN v UNIVERSITY COLLEGE DUBLIN 1989 ILRM 469
KIRRANE v FINLAY UNREP KELLY 2.3.1998 (IRISH TIMES)
KHAN v HEALTH SERVICES EXECUTIVE UNREP MCMAHON 11.7.2008 2008/33/7254 2008 IEHC 234
RSC O.84 r21
DEROISTE v MIN FOR DEFENCE & ORS 2001 1 IR 190
CUSSEN, STATE v BRENNAN 1981 IR 181
WILLIAMS, STATE v ARMY PENSIONS BOARD & ORS 1983 ILRM 331
DEROISTE v JUDGE ADVOCATE GENERAL & ORS 2005 3 IR 494 2006 1 ILRM 220 2005/15/ 3148 2005 IEHC 273
GREY v BYRNE 1988 1 IR 31
RSC O.84 r21(1)
TRIBUNAL OF INQUIRY
Report
Publication - Fair procedures - Principles of natural justice - Whether respondent adopted procedures and pursued method of publication of report which was contrary to applicant's right to constitutional justice - Conventional standards applicable to fair procedures and natural justice - Discretion - Merits of application - Remedy - Benefit - McCormack v An Garda Siochána Complaints Board [1997] 2 IR 489, Duffy v Commissioner of An Garda Siochána [1999] 2 IR 81, Tierney v An Post (Unrep, HC, McCracken J, 7/7/1998), Flanagan v University College Dublin [1989] ILRM 469, Kirrane v Finlay Tribunal (Irish Times, 3/3/1998), Khan v Health Service Executive [2008] IEHC 234, (Unrep, HC, McMahon J, 11/7/2008), De Roiste v Minister for Defence [2001] 1 IR 190, State (Cussen) v Brennan [1981] IR 181, State (Williams) v Army Pensions Board [1983] ILRM 331, De Roiste v Judge Advocate General [2005] IEHC 273, [2005] 3 IR 494 and Byrne v Grey [1988] IR 31 considered - Time limits - Whether failure to act promptly - Whether any good reason for extending period - Rules of the Superior Courts 1986 (SI 15/1986), O 84, r 21(1) - Application refused (2007/117 JR - O'Keefe J - 9/6/2009) [2009] IEHC 369
Walsh v Health Service Executive
JUDGMENT delivered by Mr. Justice O'Keeffe on 9th day of June, 2009
1. On 12 th February, 2007 the High Court gave the Applicant leave to apply by way of application for judicial review for, inter alia:-
(i) A declaration that the process of reporting adopted and employed by the Respondent and the manner in which the Respondent published on 10 th November, 2006, a report prepared by Professor Des O'Neill, following his investigation into the deaths of residents and former residents of Leas Cross Nursing Home, Swords, Co. Dublin ("Leas Cross") which did not consider or take account of written responses submitted by the Applicant to the Respondent on the basis of the Respondent's solicitors' letter of 6 th July, 2006 breached the Applicant's right to natural and constitutional justice and/or
(ii) A declaration that the Respondent was in breach of the Applicant's right to natural and constitutional justice in having failed to publish the entire of the written response submitted by the Applicant to the Respondent for publication with the report and/or
(iii) An order of certiorari quashing the Respondent's report and addenda published on 10 th November, 2006 to the extent of quashing the criticisms and references to the Applicant contained in the publish report on the grounds that the inclusion of the criticisms and references in the published report to the Applicant failed to take into account the written response submitted by the Applicant to the Respondent and therefore breached the Applicant's right to natural and constitutional justice and/or
(iv) An order quashing the Respondent's publication of the report by reason of the Respondent having failed to publish the entire of the written responses submitted by the Applicant for publication with the report and/or
(v) An order of mandamus to withdraw the Respondent as published by the Respondent on 10 th November for the purposes of having the Respondent redact all criticisms of and references in the report (whether directly or indirectly) to the Applicant.
2. This application arises from a report prepared by Professor Desmond O'Neill, Consultant Geriatrician, Trinity College and the Meath Adelaide Hospitals. He was commissioned by the Respondent in July/August 2005 to carry out an investigation into the deaths of residents and former residents of Leas Cross who died between 2002 and 2005.
3. At the time the Applicant was the Chief Officer of the Health Service Executive, Northern Area. On the establishment of the Northern Area Health Board (NAHB), now known as the Respondent in March 2000, he was appointed Assistant Chief Execution Officer Operations for all service areas in the functional area of the NAHB. In November 2003 he was appointed Deputy Chief Executive and in January 2005 was appointed Chief Officer of the NAHB and held that position until July 2005 when the Respondent in its present constitution took over responsibility for all service areas previously under the remit of the NAHB.
4. In his capacity as Chief Officer, the Applicant claimed he engaged Professor O'Neill to carry out an investigation into matters concerning Leas Cross. In particular, he agreed with Professor O'Neill that for the purpose of addressing the investigation of the deaths of residents and former residents of Leas Cross that he (Professor O'Neill) would examine the medical, prescribing and nursing notes at Leas Cross. Professor O'Neill's terms for reference also included an examination of:-
" The hospital records, post mortem summaries, death certificates, notification to the coroner and inquest, correspondence with (various specified bodies) and the Department of Health and Children regarding concerns over Leas Cross Nursing Home Inspection reports and other relevant documents and to:-"
(a) relate those to national and international data and guidelines on morbidly and mortality in institutional care for older people; and
(b) to make recommendations as appropriate to the HSE and Department of Health and Children arising from these findings."
5. The Applicant retired in October 2005. In his retirement he informed Professor O'Neill that he would make himself available if required to provide information on issues of relevance through his investigation. In February 2006, he was requested by the Respondent to provide observations as a consultant engaged on behalf of the Respondent in relation to the matters the subject of the investigation report and these were submitted in April 2006.
6. On 6 th July, 2006, the Respondent by its solicitors sent to the Applicant a draft final report which had been furnished by Professor O'Neill to the Respondent. As the report may have referred directly or indirectly to the Applicant it requested him to make any responses or observations that he may wish, before any conclusions were reached or before taking any further action regarding the report or its recommendations. Such comments were required before 26 th July, 2006.
7. The Applicant stated that from reading the extracts of the final draft report furnished to him, it was clear to him that Professor O'Neill had moved beyond the terms of reference and that he had highlighted what he termed "system failures" at Health Board level. He said that the final draft went beyond the original brief. He was also concerned that the manner in which the report dealt with and reached conclusions concerning the quality and efficiency of management and structures within the Respondent's remit. He complained about the casual nature of the process which had been employed in the preparation of the final draft report and stated there was no contact made with him by Professor O'Neill. He said that he was in no doubt that the process which facilitated such a report being presented for publication was seriously flawed and that it failed to respect the rights of those parties interested in and affected by the matters and conclusion contained in the report and there was a failure to protect his rights to natural and constitutional justice.
8. By letter dated 25 th August, 2006, the Applicant furnished the Respondent with his response. This is a very detailed document of some 32 pages. It includes an executive summary which is a detailed response to separate findings contained in the report and addressing in specific detail more than 15 matters raised by the report by referring to the particular issue and giving the Applicant's response.
9. The Applicant contended the matters included in the submission of 25 th August, 2006 demonstrated that the Respondent in its preparation and finalisation of Professor O'Neill's report failed to have due regard to the principles of natural and constitutional justice in its dealings with the Applicant.
10. On 22 nd September, 2006 the Applicant (through his solicitors) wrote to the Respondent requesting that Professor O'Neill's review should not be published without fully reflecting the very detailed submissions made by the Applicant.
11. On 25 th September, 2006 a similar letter was written by the Applicant's solicitors requiring an undertaking from the Respondent that it would not publish the report without having regard to the submissions and comments made by the Applicant prior to finalising the report. Unless the undertaking was forthcoming within 24 hours, the letter stated the Applicant would have no alternative but to take whatever action that may be necessary to protect his interests.
12. A similar letter was written on 28 th September, 2006 seeking an undertaking not to publish the report on Leas Cross in its then formula without taking into...
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