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Cite as: [2004] IEHC 149

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HC 181/04

THE HIGH COURT

[2004 No. 63 J.R.]

BETWEEN

PAWAN K RAJPAL

APPLICANT

AND

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

RESPONDENTS

JUDGMENT of Mr. Justice Kearns delivered the 7^th day of May, 2004.

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, 1970 to inquire into a proposal by the first and second named respondents to remove the applicant from office.

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.

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^th March and 16^th May, 2003, amounting to a total of 99 separate complaints.

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.

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.

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."

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 or unfitness is being enquired into, and any disciplinary action to be taken in regard thereto is being determined". Mr. Robinson also requested the third named respondent to establish a committee under s. 24 of the Health Act, 1970 and the regulations made thereunder, having concluded that the incidents alleged by Mr. Joyce represented concerns of substance where the applicant was concerned which could not be resolved in a summary fashion. As an immediate consequence of this decision, the applicant was suspended without pay.

Thereafter on 26^th August 2003 the applicant sought reasons for the formation of the opinion expressed by Mr. Robinson who responded on 27^th August 2003 stating that his letter and enclosed decision of 18^th August, which had been forwarded to the applicant, set out clearly the basis for his decision.

On 29^th August 2003 the applicant wrote to the third named respondent complaining of the alleged failure on the part of Mr. Robinson to identify precise complaints or concerns against him and seeking clarifications of the allegations of misconduct and/or unfitness to hold office which had been made against him.

While it is not an immediate issue in these proceedings, it is perhaps pertinent to note that Mr. Joyce was also suspended without pay on 18^th August 2003 and similar procedures under the Health Act, 1970 for the appointment of an investigating committee were set in train in his case also.

On 5^th September 2003, the applicant wrote to Mr. Robinson complaining that the procedures adopted under the Health Act 1970 were draconian and unnecessarily punitive. He pointed out in the letter that the terms of the Common Contract gave to the first named respondent the latitude to impose a period of administrative leave to carry out an investigation. During this period, the officer under investigation could receive full pay and would not be the subject of unfair and groundless adverse publicity. He sought, unsuccessfully, the immediate withdrawal of his suspension and made clear his total dissatisfaction with the procedures adopted by the first named respondent. He also sought a complete set of the documents upon which the respondent may have relied and which he may have proposed to send to the committee appointed under the Health Act, 1970.

By letter dated 9^th September 2003, Mr. Robinson wrote to the applicant in the following terms:-

"I have suspended you pursuant to s. 22 of the Health Act, 1970 for reasons identified in my document delivered to you on 18^th August 2003, entitled "Examination and decision of Chief Executive Officer". This was delivered to you together with a letter of the same date. Subsequently, I also advised the Minister for Health and Children of your suspension from your duties as consultant surgeon at Cavan General Hospital and requested the Minister to establish a committee in accordance with s. 24 of the Health Act, 1970. The appointment of the committee now rests with the Minister and the matter will progress in accordance with the Health Act.

I have dealt with the complaints against you under the Consultants Common Contract and my decision to suspend you is consistent with the provisions thereof. My statement entitled "Examination and decision of Chief Executive Officer" sets out clearly the process for carrying out the examination and the reasons for proceeding in accordance with appendix IV paragraph 4(c).

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. Let me sure you that I have not singled you out for special treatment as you suggest in your letter.

I note that in the event that I do not place you on administrative leave you require myself and/or the Minister to exercise discretion and make an ex gratia payment to you equal to your lost income and a commitment to make such further payments as may be necessary to compensate you for any further loss of income during the period of your suspension. I am only entitled to make an ex gratia payment with the consent of the Minister and I am in the process of consulting with him in that regard. I will notify you as soon as a decision is made."

On 24^th September, 2003, the third named respondent established a committee under s. 24 of the Health Act 1970 for the cases of both the applicant and Mr. Joyce. The precise terms of the ministerial order in the applicant's case are as follows:-

"In accordance with and in exercise of the powers conferred upon me by s. 24 of the Health Act, 1970 and in accordance with the Health (Removal of Officers and Servants) Regulations, 1971 (SI No. 110 of 1971) and (Amendment) Regulations (SI No. 165 of 1972 and SI No. 180 of 1973) I hereby appoint the under mentioned persons to a committee to perform the functions specified in that section in relation to a proposal under s. 23 of the said Act that Mr. Pawan Rajpal, a permanent officer employed by the North Eastern Health Board, be removed from office".

By letter written several days earlier, the third named respondent had suggested that all preliminary points of objection, including objections to the procedures adopted, should be raised by the applicant with the committee.

For reasons with which we are not presently concerned, the first committee was unable to act and the Minister dissolved same, appointing a second committee on 24^th October 2003, whereof Mr. Andrew Bradley SC was appointed Chairman.

The second committee held its first meeting on 11^th December 2003 at which point it became clear that further difficulties existed in relation to the composition of the committee, two of whom withdrew. Thereafter considerable difficulty was experienced in filling the vacancies as a result of problems in relation to the terms and conditions under which medical personnel would serve on the committee. In the event, these difficulties were finally overcome on 30^th January 2004 and the committee was restablished again under the chair of Mr. Andrew Bradley SC.

This committee has since being hearing evidence in relation to the complaints brought by the applicant against Mr. Joyce, but the committees inquiry into the applicant was interrupted and halted by the present judicial review proceedings which were launched on 29^th January 2004 and in respect of which leave was granted by the High Court (deValera J.) on 2^nd February 2004.

Relief Sought and Grounds

In these proceedings the applicant seeks:-

(a) an order of certiorari quashing the purported conclusions decision and order of the first and second named respondents made on 18^th August 2003.

(b) an order of certiorari quashing the decision and order of the third named respondent made on or about the 24^th October 2003 by which the third named respondent purported to establish a committee to inquire into a proposal to remove the applicant from office by the first and second named respondent.

(c) an order of mandamus directing the third named respondent to terminate, pursuant to s. 22 (3) of the Health Act, 1970 the suspension of the applicant.

(d) an order of certiorari by way of judicial review quashing the decision of the third named respondent made on 8^th January 2004 to refuse to terminate the suspension of the applicant.

(e) an order of prohibition restraining the third named respondent from purporting to appoint any committee pursuant to s. 24 of the said Act of 1970.

(f) a declaration that the purported decisions and orders of the respondents were ultra vires void and of no effect.

Amongst the grounds relied upon by the applicant in seeking judicial review are the following:-

(1) the first and second named respondents failed to specify to the applicant the allegations of misconduct and/or unfitness to hold office which he was investigating

(2) the first and second named respondents failed to give any or any adequate notice to the applicant of specific allegations of misconduct and/or unfitness to hold office

(3) the first and second named respondents failed and neglected to afford fair procedures to the applicant by allowing him to respond adequately to specific complaints or charges of misconduct and/or unfitness to hold office

(4) the first named respondent failed and refused to accept written and verbal representations by the applicant and his representative in relation of the matters in issue

(5) the first and second named respondents failed to comply with the terms of the Common Contract requiring them to afford the applicant an adequate opportunity to reply to any complaint or allegation made against him

(6) the first named respondent failed to properly or adequately investigate the allegations against the applicant

(7) the first named respondent failed to reach any conclusions in relation to the allegations

(8) the first named respondent purported to decide that the allegations alleged against the respondent represented complaint/concerns of substance which could not be resolved in a summary fashion.

(9) The first named respondent failed to resolve the allegations

(10) The first named respondent purported to apply to the first named respondent to appoint a committee pursuant to s. 24 of the said Act in circumstances where the first named respondent had reached no conclusion in relation to the allegations against the applicant.

(11) The first named respondent purported to apply to the third named respondent to appoint such committee in circumstances where the first named respondent did not at any material time propose to remove the applicant from office

(12) The first named respondent purported to suspend the applicant from office without pay after, not while, the alleged misconduct or unfitness was being enquired into by him

(13) The first and second named respondents suspended the applicant from office without any or any reasonable grounds for so doing

(14) The first named respondent failed to state the cause of the suspension of the applicant either to the applicant or to the third named respondent as he was obliged to do by s. 22(2) of the said Act

(15) The decision of the first and second named respondents to suspend the applicant from office was unreasonable and irrational

(16) The first named respondent failed to comply with the requirements of natural and constitutional justice in dealing with the allegations against the applicant

(17) The said suspension was implemented by the first and second named respondents otherwise than in accordance with s. 22 of the said Act

(18) The third named respondent purported to establish a committee pursuant to s. 24 of the said Act in the absence of any proposal to remove the applicant from office

(19) Alternatively, the third named respondent was guilty of unreasonable and unconscionable delay in establishing a committee pursuant to s. 24 of the said Act

(20) The refusal of the third named respondent to terminate the suspension of the applicant was unreasonable and irrational

(21) The respondents in each of them misdirected themselves in law in reaching the said purported decision

The Common Contract and the Health Act 1970

The applicant herein is employed under what is known as the Common Contract.

The disciplinary procedure contained in the Common Contract states by way of preamble that 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 manner which has due regard to the rights and obligations of the parties. In particular, it emphasises that 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.

Clause 3 provides that the CEO may require a consultant to take immediate administrative leave with pay for such time as may be necessary to complete any investigation into the conduct of the consultant in accordance with the provisions of the Common Contract. The Common Contract stresses that "this investigation should take place with all practicable speed." This clause may be invoked by the CEO where "by reason of the conduct of a consultant there may be an immediate and serious risk to the safety, health or welfare of patients or staff".

Clause 4 provides as follows:-

"The Chief Executive Officer of a Health Board, Chief Executive Officer, Secretary/Manager of the Hospital or other 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 necessary may:-

(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 this appointment, and if he thinks fit, issue a warning or other like communication or the consultant, or

(c) where he is the Chief Executive Officer of a Health Board, decide to act in accordance with the provisions of ss. 22, 23 and 24 of the Health Act, 1970 and 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 analogous provisions"

Clause 5 then provides:-

(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 enquire into the matter and the Minister shall thereupon appoint such a committee."

"Appropriate person" is defined in the Common Contract as being 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.

The Common Contract goes on to provide that the committee shall complete its examination of a complaint "with all practicable speed and shall make its recommendations in writing to the appropriate person and send a copy of its recommendations to the consultant concerned". It may recommend either the termination of the consultants appointment, a period of unpaid suspension, deduction of a specified sum of money from the consultants remuneration or that the consultant concerned should be admonished. Where it recommends termination, the appointment may be terminated at the expiration of a period of 21 days, unless a request has been made to the Minister by the consultant concerned.

In the instant case, as appears from the decision of Mr. Robinson dated 18^th August 2003, he concluded that appendix IV, par. 4 of the Contract required him to decide whether the complaints/concerns should be dealt with under sub paragraph (a) (b) or (c) of clause 4. He concluded:-

"My examination and consideration has led me to conclude that the complaints/concerns are substantial. In forming my opinions, I have had regard to the totality of the documentation contained in the files set out above and have not sought to establish an opinion on each and every item (clinical or otherwise) contained in each of the individual complaints/concerns and responses.

The complaint of unethical conduct is an extremely serious one. My opinion is that where a consultant or other person has a concern that patient safety may be put at risk it is both legitimate and obligatory to raise such a concern. Therefore I conclude that Mr. Rajpal did not act unethically in raising concerns or in submitting documentation in support of such concerns. I am also of the opinion that the concerns were motivated by a concern for patient safety and not by any malice towards Mr. Joyce. Accordingly I have not taken this matter into account for the purpose of coming to my decision referred to below.

The complaints/concerns of inappropriate behaviour are also extremely serious. In forming an opinion on these complaints/concerns, I have had regard to definitions contained in the Board's Policy on Anti-Bullying. I have also had regard to the RCSI publication "Consultant Surgeons Team Working in Surgical Practice".

I am of the opinion that incidents alleged by Mr. Joyce represent complaints/concerns of substance regarding Mr. Rajpal which cannot be resolved in a summary fashion. I am satisfied that these issues cannot be resolved in accordance with sub paragraph (b) of paragraph 4 of appendix IV of the contract, and fall to be dealt with in accordance with sub paragraph (c) and consequently ss. 22, 23 and 24 of the Health Act, 1970.

Decision

In my opinion, I have reason to believe that Mr. Rajpal has misconducted himself in relation to his office or is otherwise unfit to hold office. Pursuant to s. 22 of the Health Act, 1970, I have consulted with the Chairman of the Board and it is my decision, following that consultation, to suspend Mr. Rajpal from the performance of the duties of his office, while the alleged misconduct or unfitness is being enquired to be taken in regard thereto is being determined.

I shall notify the Minister for Health and Children forthwith of Mr Rajpal's suspension. I shall provide a copy of this document to Mr. Rajpal's and to the Minister. I will request the Minister to establish a committee under s. 24 of the Health Act, 1970 and regulations made thereunder."

Accordingly, while the commencement of this process took place under the provisions of the Common Contract, the decision of Mr. Robinson made on the 18^th August, 2003 moved the process forward from that point in time onwards solely under the provisions of the Health Act, 1970 with all that that entailed.

The relevant sections of the Health Act, 1970 are as follows:-

"S. 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, a 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 enquired into and any disciplinary action to taken in regard thereto is being determined …

S. 23 -(2) a permanent officer shall not be removed under this section because of misconduct or unfitness except –

(a) on a direction by the Minister under subsection (3) or

(b) on the recommendation of a committee under s. 24 or on a direction by the Minister under s. 24(11)

(3) where a permanent officer has misconducted himself by absenting himself from duty without leave or without reasonable cause, the Minister may direct his removal from office

(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 received within a prescribed period shall be considered.

S. 24 -(1) whenever it is proposed to remove a permanent officer of a health board under s. 23 because of misconduct (except as referred to in s. 23(3)) or unfitness, the Minister shall appoint a committee to perform the functions specified in this section relating to the proposal for such removal.

(5) a committee under this section, having inquired into the proposal to remove the officer, shall make such recommendation to the Chief Executive Officer as it thinks fit.

(9) when a committee under this section recommends the removal of an officer, the Chief Executive Officer may remove the officer after the expiration of a period of 21 days unless a request has been made to the Minister under sub-section (10).

(10) an officer in relation to whom a recommendation for removal has been made under sub-section (5), may, in the prescribed manner and subject to the prescribed conditions, request the Minister to issue a direction to the Chief Executive Officer in relation to that recommendation.

(11) where a request is made to the Minister under sub-section (10), the Minister may give to the Chief Executive Officer a direction to remove the officer, a direction not to remove the officer or such other direction as he considers appropriate and the Chief Executive Officer shall comply with the direction."

Having regard to the fact that the statutory procedures were invoked in the case of this applicant, it is also important to have regard to the provisions of the Health (Removal of Officers and Servants) Regulations, 1971 (SI No. 110 of 1971).

Article 4 provides:-

"(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 -

(a) of the intention to remove;

(b) of the reasons for such removal;

(c) that the Chief Executive Officer will consider any representations made by him or on his behalf before the expiration of 7 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 of removal until notice of the intention to remove has been given in accordance with sub-article (1) of this article and until any representation is made by or on behalf of the officer or servant have been considered."

Mr. Robinson's Evidence

Notice to cross-examine Mr. Robinson on his affidavits was given in this case. Because of the importance of the evidence given by Mr. Robinson I propose to now refer to it in somewhat greater detail.

Mr. Robinson agreed with Mr. Noonan B.L., counsel for the applicant, that the investigation into complaints or concerns raised by Mr. Joyce against the applicant took place over a period of six months up to August 2003. Mr. Robinson described how when a complaint was received from Mr. Joyce it was copied to the applicant inviting his response. There were in all five different dates on which Mr. Joyce submitted written concerns or complaints, accompanied by lengthy and voluminous documentation. In total there were ninety nine complaints. He didn't discard or uphold any particular complaint. He told the court that he had taken the totality of the complaints as representing complaints of substance, that is to say, they were not frivolous.

He told Mr. Noonan that he felt and understood that his responsibility in dealing with this matter had to be informed by the decision of the Supreme Court in Traynor v. Ryan [2003] 2 IR 564. Thus he believed his obligation was only to decide if the complaints were matters of substance. If not he could deal with them himself under the Common Contract. However, if they were matters of substance, he felt his obligation was to refer them to a committee set up to investigate the complaints. He accepted, however, that in the Traynor v. Ryan case, Mr. Ryan was acting as an "appropriate person" under the Common Contract, being the Chief Executive of a hospital, and not as he, Mr. Robinson was, a Chief Executive of a Health Board.

Pressed as to the nature of the investigation he undertook into individual complaints, Mr. Robinson stated that it was common knowledge at the time that there were big difficulties in the surgical department in the Cavan Hospital. He was not trying to ascertain if one surgeon's complaints were more reliable than the other's. He took the view that the committee to be appointed by the Minister should determine on that and his function was merely to say that there were sufficiently serious matters for them to inquire into.

While he conducted no interviews of witnesses in the hospital, he had correspondence form both the applicant and Mr. Joyce which had included statements from some of the non-consultant hospital doctors who had worked in the hospital. He also had reports from HRRI Risk Management Consultants who had been brought in by the board in the beginning of 2001 and who carried out a risk assessment of the hospital. They had referred to difficulties in the surgical department. In December 2002, he also engaged a group called St. Paul's Consultancy to carry out a conciliation process across two hospital sites in Cavan and Monaghan. This exercise revealed there was a volatile situation in the department of surgery and indeed he had been approached before the consultants had written their report in relation to what they considered was a dangerous situation in the department.

In further response to Mr. Noonan, Mr. Robinson stated (q. 74) that he had decided in relation to the complaints that they were sufficiently serious to warrant the removal of the applicant from office if proved. He came to that conclusion when he made his decision on 18^th August, 2003. He agreed, however, that he had not included any reference to a proposal to remove the applicant from office either in the order or in the statement he made when making his decision. He had to await a finding of the committee before a removal could take place. He felt Mr. Rajpal could deduce from the procedures invoked that it was Mr. Robinson's intention to propose his removal. He took the course he did because he had been advised that the general principles of the Traynor v. Ryan case had to be applied. It was only in the event of the committee making a recommendation that he would be removing the applicant.

Mr. Robinson agreed that he was familiar with the regulation requirements of the Health (Removal of Officers and Servants) Regulations, 1971. He further agreed that none of the requirements of those regulations had been complied with. He accepted that notice in writing had not been given to the applicant of the intention to remove, the reasons for removal, nor had the applicant been notified that the Chief Executive Officer would consider any representations made.

Mr. Robinson was asked if it was not the case that at the July meeting, Mr. Rajpal had tendered a dossier of documents which Mr. Robinson had declined to accept. Mr. Robinson agreed he had declined to accept the dossier, but had done so on the basis that he had made clear that he was not going to receive any further documentation nor any further complaints. He felt that new issues might arise if he accepted the dossier. He appreciated that there might be some material in the dossier relating to Mr. Rajpal's defence to the allegations that had been made against him, but he noticed also that there was new material in it and he had previously indicated he would not accept new material. He was also giving Mr. Rajpal the opportunity to outline his comments during the hearing.

Submissions of the Parties

On behalf of the applicant it was submitted by Mr. Hanratty SC that as of the 18^th August, 2003, the CEO had not reached any conclusion about the complaints made against Mr. Rajpal, other than that they were not frivolous, nor had he made a decision on whether any disciplinary action might be necessary and if so, what it might be. In particular, he had not made a decision, firstly, that the applicant was guilty of misconduct and, secondly, that such misconduct was sufficiently serious to warrant the removal of the applicant from his office. It was therefore clear, Mr. Hanratty submitted, that the CEO did not on 18^th August 2003, or on any subsequent date propose to remove Mr. Rajpal from office. In fact, what he was saying was that he could not or would not make any decision on the matter other than to suspend Mr. Rajpal without pay while an investigation was being carried out, although he himself was not going to carry it out but rather was going to pass the matter over to a committee for that purpose. Had there been any bona fide intention to remove Mr. Rajpal from office, Mr. Robinson would have had to comply with the requirements of SI No. 110 of 1971 entitled "Health (Removal of Officers and Services) Regulations 1971" which, by common consent, had not occurred in this case.

This being so, Mr. Hanratty submitted, there was never any proposal to remove Mr. Rajpal by the CEO or anybody else.

The statutory procedures, Mr. Hanratty submitted, could not be clearer. Where the CEO received a credible complaint of misconduct against a consultant of sufficient seriousness, he could immediately suspend the consultant while he investigated the complaint and decided what action should follow. If he found the consultant guilty of misconduct of such gravity as to warrant his removal from office he could propose such removal, having first complied with his obligations under SI No. 110 of 1971. The wording of s. 24 itself makes clear that the proposal to remove the consultant must come first and only thereafter may the Minister appoint the committee.

The statute, he argued, lays down a clear sequence of events. Firstly, the CEO must conduct an investigation into any complaint in a manner that complies with the requirements of natural justice. He may suspend the consultant while he does so. He must then reach a conclusion as to whether the consultant has been guilty of misconduct. If he finds that there has been misconduct he must then consider what, if any, sanction should be imposed. If he considers that the misconduct that has been established is sufficiently serious to warrant the imposition of the ultimate sanction, removal from office, he can then propose to remove the consultant from his position. In that event, and only in that event, the CEO may then make a request to the Minister under s. 24 of the Act for the appointment of a committee to consider the proposal to remove. The committee is concerned only with the sanction. He submitted that it is not the function of such a committee to enquire into a complaint of misconduct at first instance in circumstances where there has already been a decision by the CEO to remove the consultant from office for misconduct. In short, Mr. Hanratty submitted, the CEO had entirely misconstrued his functions under the Act.

He submitted that the CEO did not conduct any proper investigation but rather engaged in a paper swapping exercise over a period of months. He never formulated specific allegations of misconduct nor did he attempt to distil the extensive allegations contained in Mr. Joyce's correspondence into a recognisable charge or charges of misconduct that could be communicated to Mr. Rajpal and to which he could then provide a reasoned response. He did not seek or obtain evidence from any independent party who might have been involved in the events alleged by Mr. Joyce and who might have shed light on the veracity of Mr. Joyce's complaints. He conducted a brief interview with the applicant which in the time allotted could not conceivably have covered, and did not in fact, cover all the matters raised by Mr. Joyce. He refused to accept documentary evidence from Mr. Rajpal which Mr. Rajpal believed was crucial to his defence. At the conclusion of this exercise, he felt only able to conclude that the complaint was substantial but that he could not resolve it and insofar as he concluded that he had reason to believe that Mr. Rajpal may have been guilty of misconduct he never specified what the misconduct was. It was submitted that the foundation was never laid for the Minister to appoint a committee.

Similarly, it was argued that the decision to suspend Mr. Rajpal was invalid because what the Act permits is suspension while the CEO carries out his investigation. In fact in this instance, the CEO purported to suspend Mr. Rajpal after he had completed his purported investigation, an investigation which reached no conclusion on the complaint of inappropriate behaviour. Mr. Hanratty submitted that there was no warrant in the Act for such a procedure and that the CEO's purported decision was manifestly ultra vires and invalid accordingly.

It appeared from the evidence, Mr. Hanratty submitted, that the CEO in the instant case had conflated in his mind the procedures under the Common Contract Scheme with those set out in the Health Act, 1970. It was undeniable that, Mr. Robinson had, as he said himself, felt obliged to follow the procedures discussed in Traynor v. Ryan.

This was a case in which a consultant anaesthetist was the subject matter of certain complaints made to the respondent who was the secretary and General Manager of the relevant hospital. The critical difference between that case and the present one is that the respondent in Traynor v. Ryan was not the Chief Executive of a Health Board but was what the Common Contract defines as "an appropriate person". This meant that Mr. Ryan could not in that case act in accordance with the provisions of ss. 22 – 24 of the Health Act, 1970 but rather was obliged to act under the provisions of clause 5 of the Common Contract which permitted him to have complaints investigated in full by a committee appointed by the Minister under the Common Contract. It was clear, Mr. Hanratty submitted, that the respondent had misconstrued his functions in directly the opposite manner to the respondent in Traynor v. Ryan. In Traynor, the respondent had taken it upon himself to investigate fully, rather than simply referring the matter to the committee as he was empowered to do. In the instant case, the CEO had failed to conduct the inquiry he was obliged to conduct under s. 22.

In relation to the suspension of the applicant, Mr. Hanratty further submitted that, Mr. Robinson was guilty of a clear breach of fair procedures. He had made this decision without having before him a dossier of material which Mr. Rajpal had produced at the July meeting for the purpose of defending complaints made against him by Mr. Joyce.

A further want of fair procedures arose in that Mr. Rajpal was given documents from Mr. Joyce which were critical of him, but was never at any time advised by the CEO of the charge or charges of misconduct he was being called upon to answer. It had been emphasised by Geoghegan J. in O'Ceallaigh v. An Bord Altranais (Supreme Court Unreported 17^th May 2000):-

"If a professional body is invested with the power of receiving complaints relating to a member of that profession and deciding whether an inquiry should be put in motion the outcome of which might lead to the person complained about being no longer able to practice his/her profession, that body cannot be said to be exercising its power lawfully and fairly without the person complained about being informed of the complaint and the Bord having sight of any reasonable response to such a complaint."

Mr. O'Neill SC on behalf of the first and second named respondents, accepted that Mr. Robinson had indeed conflated the various procedures as a result of trying to comply with Traynor v. Ryan, but urged the court to take the view that, in the exercise of its discretion, it should not interfere with the workings of a committee which was now charged with the responsibility of resolving an extremely difficult situation which had arisen between the two surgeons.

Mr. O'Neill submitted that there did not have to be a full pre-hearing or determination by the Chief Executive Officer under s. 22 before a committee appointed under s. 24 undertakes its work. The CEO, he submitted, was entitled to interpret ss. 22 – 24 as meaning that if allegations against a consultant were of a sufficiently serious nature so that if substantiated they would, in the mind of the Chief Executive Officer justify dismissal, then the matter should go to a committee under s. 24.

In the instant case there had been no want of fair procedures. There had been a full exchange of documents and a hearing by the CEO before suspensions were imposed. There was an adequate ventilation of the issues sufficient to justify the suspension and the steps thereafter taken.

It was inappropriate, Mr. O'Neill submitted, to talk about a recommendation to remove as being the only function of a committee under s. 24. If there was already a recommendation by the Chief Executive Officer to terminate the contract it would make no sense to have a committee inquiry in those circumstances. Also, it should be borne in mind that a CEO is not a qualified medical person and is thus not in a position to fully investigate particular complaints if they are clinical complaints.

At the end of the day there was no real distinction between a committee hearing under the Common Contract and a committee hearing under the Health Act 1970. There remained a right of appeal to the Minister from any recommendation of such a committee.

Mr. O'Neill submitted that the entirety of the statutory provisions had to be looked at in context. If Mr. Hanratty's contentions were correct, they would in effect have to be multiple hearings, including an initial full hearing before the CEO, a determination, and then, if appropriate, a second similar hearing before a committee, followed by a possible appeal to the Minister before the inquiry could be concluded. This could hardly be the correct interpretation of the statutory provisions. In Traynor v. Ryan [2003] 2 I.R., Fennelly J. had stated as follows at 578:

"I would add that cases such as the present exemplify 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 an agreed procedure. The consequence of such procedural skirmishing is, all too often, to increase costs and delay resolution. In the present case as emphasised by the defendant a committee could have been appointed some seventeen months ago. It may well be that the plaintiff did not bring these proceedings for the purposes of blocking the reference to a committee, as alleged by the defendant, but they in combination with the injunctions obtained against the Minister have certainly had that effect."

Insofar as the suspension was concerned, that had to be seen as a holding operation as distinct from a disciplinary sanction. It was clearly authorised in circumstances where there was reason to believe that there may have been misconduct in the opinion of the Chief Executive Officer.

Mr. O'Neill further submitted that the court should exercise its discretion to refuse relief on the grounds of delay in bringing the application. No attempt had been made on affidavit to deal with the issue of delay. Alternatively, the court should hold the applicant to be estopped from seeking relief having regard to two letters from his solicitor. On 18^th September, 2003, Messrs. Hayes and Co. had written to the third named respondent stating:-

"Our client is anxious that the committee be established expeditiously in order that the very unsatisfactory position in which he finds himself is resolved, and we should be obliged if you would advise whether the committee has now been established and if not when you anticipate that this will be done."

Mr. O'Neill referred to another letter written by the same firm on 15^th December 2003, to Andrew Bradley SC as chairman of the committee expressing their client's anxiety that the matters before the committee be disposed of expeditiously and requesting sight of all documentation furnished to the chairman by the Minister or the Health Board, to include the terms of reference of the committee.

This correspondence clearly established, Mr. O'Neill submitted, that the applicant had engaged with the committee and submitted to its jurisdiction and procedures. He cited in support the decision of the Supreme Court in Corrigan v. Irish Land Commission [1977] I.R. 317 which effectively held that a party to litigation, who has continued the proceedings with knowledge of an irregularity of which they might have availed themselves, is estopped from afterwards setting it up.

On behalf of the third named respondent, Mr. Connolly SC adopted Mr. O'Neill's submissions and pointed out that a particular difficulty which the Minister had in the case arose from the fact that he is the appellate body arising from the committee under s. 24 of the Health Act, 1970. He further submitted that the 1971 regulations only come into play at a later stage after the investigating committee has made its recommendations.

Mr. Connolly submitted that at the stage where he was exercising his jurisdiction under s. 22 of the Act, Mr. Robinson couldn't decide matters but could only form provisional views. A decision to dismiss could only be made after the investigating committee had run its course and made its recommendations. All that was required under s. 22 was that there should be enough substance for Mr. Robinson to be satisfied that the next step be taken.

Mr. Connolly submitted further that there could be no doubt but that a proposed removal was on the cards once the appointment of a committee under s. 24 was sought. It wasn't an inevitable consequence, but the person under investigation could be in no doubt but that it involved a prospect of removal from office in the same way as a person facing trial on indictment faces a prospect of imprisonment. If there was any technical breach of statutory procedures in the instant case, had any real injustice taken place? Could it be said that what was now taking place or about to take place before Mr. Bradley's committee was or could amount to any injustice? If not, the greater interest for all concerned lay in allowing the committee to proceed. In response, Mr. Hanratty pointed out that following the notification of the decision on 18^th August, 2003, Mr. Rajpal immediately challenged the legal validity of the decision. He wrote to the Minister who responded inviting the applicant to take up any points and objections with the committee. The applicant had made it clear at paragraph 6 of his affidavit that when the committee convened on 11^th December, 2003, his counsel had made it clear that his presence at the committee was entirely without prejudice to his contention that the Committee was not properly constituted. This averment appeared in the applicant's affidavit of 20^th April, 2004.

Mr. Hanratty further submitted that the procedures under the Heath Act, 1970 were quite different from those under the Common Contract. A committee acting under clause 5 is not dealing with the situation where a decision had already been made to remove a person from office and is completely at large to inquire into the entire matter at first instance. All a committee appointed under s. 24 can do is to inquire into the proposal to dismiss and recommend removal or not. Mr. Hanratty further submitted that there was a serious question mark as to whether a committee appointed under s. 24 has jurisdiction to do anything else or to actually inquire into the misconduct in question having regard to the terms of s. 24(5).

The essence of the present case was that the Chief Executive Officer made no form of an adjudication, even of a prima facia nature, but instead only came to a conclusion that there were in existence allegations of substance in the sense that they were not frivolous. He did not therefore put himself in a position where he had reasonable grounds to believe that the applicant was guilty of any misconduct. Still less did he formulate any specific complaints in respect of which he could have made any such adjudication. On any interpretation of s. 22, the exercise by Mr. Robinson fell well short of what was required.

Finally, Mr. Brennan, solicitor for Liam Joyce, who had been joined as a notice party to the proceedings, intervened to stress to the court that Mr. Joyce had been absolved of any complaints of a clinical nature and that the matters in respect of which he is presently before the committee were of an interpersonal nature only.

Decision

I have come to the clear conclusion in this case that the committee appointed by the third named respondent to inquire into the proposal to remove the applicant has not been established in accordance with the requirements of ss. 22 - 24 of the Health Act, 1970, nor have the regulations made thereunder, namely, the Health (Removal of Officers and Servants) Regulations 1971 been complied with, so that the committee has no proper jurisdictional basis for its work.

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 have a great deal of sympathy for the position in which Mr. Robinson found himself, confronted as he was by two, if not three, alternative streams of dispute resolution, for a problem of this nature. Firstly there are the procedures under ss. 3 and 5 of the Common Contract, then there are similar procedures under the General Medical Services Scheme which, in a previous case, the CEO had himself applied, and, thirdly, those under the statutory scheme established by the Health Act, 1970. Mr. Robinson apparently believed he had to follow certain procedures laid down or provided for by the decision of the Supreme Court in Traynor v. Ryan [2003] 2 IR 564. In that case, which was one under the Common Contract only, the Supreme Court had held that the defendants sole function was to decide whether the complaints before him were of substance and incapable of being resolved in a summary fashion and if so to refer them to the Minster to appoint a committee. The same case had further held that Mr. Ryan had exceeded his jurisdiction be making positive findings in respect of the complaints in question.

The fatal flaw in Mr. Robinson's reasoning, or in the advice he received, was to think that he had to apply the procedures in Traynor v. Ryan, when applying ss. 22 - 24 of the Health Act 1970. In fact the statutory procedures under the Health Act are totally different and make quite different demands on both the CEO and any committee appointed under the Act.

Firstly, Mr. Robinson, once he had reason to believe that the consultant had misconducted himself, was charged under s. 22 with the obligation to undertake an inquiry. He also was obliged to make findings sufficient to justify a determination as to the form of disciplinary action to be taken. Once he had reason at the outset to believe that a consultant might have misconducted himself, he also had power to suspend the consultant while the misconduct was being inquired into.

By the time of the meeting in July, 2003, when he interviewed and afforded a hearing to both Mr. Joyce and Mr. Rajpal, Mr. Robinson had not been able to formulate specific charges against the applicant. He was aware from third party sources that there was a major interpersonal problem in Cavan Hospital between the two surgeons and had correspondence from the protagonists which included statements from non-consultant doctors so confirming. There had also been complaints against Mr. Joyce from a number of anaesthetists in the hospital some time previously. Furthermore, Mr. Robinson had available to him, information from the risk management consultants and also from St. Paul's Consultancy who, even in advance of their written report, had contacted Mr. Robinson to express their urgent concerns about the dangerous situation which they perceived to exist as a result of the disharmony between the two surgeons at the hospital.

Against this background, Mr. Robinson was certainly entitled at the outset to decide that both men be suspended. He did not however initially take that course. Instead he had the clinical complaints in the matter investigated by Professor Arthur Tanner of the Royal College of Surgeons in Ireland and was able to discount or discard those particular complaints. He was also in a position at the July meeting to discard complaints of unethical behaviour. In effect he was left with an amorphous bundle of complaints of misconduct raised by each surgeon against the other, some 90 or thereabouts of which were raised by Mr. Joyce against the applicant and approximately 20 by Mr. Rajpal against Mr. Joyce.

Having interviewed both Mr. Joyce and Mr. Rajpal, he concluded that these complaints were not frivolous but were complaints of "substance" which should be more fully investigated elsewhere. It was at this point that matters effectively went off the rails. Instead of making findings which would enable him determine the appropriate sanction, Mr. Robinson passed the chalice onwards without making my findings. In so doing, his only 'determination' was to suspend both consultants without pay at the conclusion of his involvement.

It is quite clear from the contradictions in Mr. Robinson's evidence before this court that he felt unsure of his ground. At one point he told the court that there was no intention to remove Mr. Rajpal but rather to refer the entire matter to an investigating committee. At another point, however, he stated in evidence that in fact there was a proposal to remove Mr. Rajpal, which Mr. Rajpal could readily have inferred from the initiation of procedures under s. 24. This procedural quagmire arose entirely because of the conflation in Mr. Robinson's mind of the different procedures to which I have already referred.

Quite clearly, in my view, there was never a proposal in this case to remove Mr. Rajpal from office under the Health Act, 1970 for reasons of misconduct. The clearest indication that that is so is to be found in the fact that the statutory rights afforded to a consultant when a proposal to remove him is made under the Health (Removal of Officers and Servants) Regulations, 1971, were never extended to Mr. Rajpal.

The applicant therefore found himself to be the subject matter of, firstly, a suspension and, secondly, a purported proposal to remove him from office because of misconduct, in circumstances where the alleged misconduct had never been inquired into and where no adverse findings of misconduct had ever been made against him by the Chief Executive Officer.

In my view these are a great deal more than mere procedural shortcomings. It is in my view not merely a failure to comply with the Act, but is the clearest possible breach of constitutional and natural justice to propose the removal of a senior surgeon from office before any finding of misconduct has been made against him. I can only see s. 24 of the Health Act, 1970 as consequentional to s. 22, of the same Act, not merely in chronology, but in intended effect also. A finding of misconduct must be made, it seems to me, by the Chief Executive Officer under s. 22 before he can reasonably raise a proposal to remove a permanent officer of a health board from his post. No such finding was made in this case.

I am quite satisfied that no proper basis in consequence existed for the making by the third named respondent of an order to establish the committee under s. 24 of the Health Act 1970. In my view it was ultra vires the powers of the Minister to so order in the absence of findings of misconduct under s. 22 and in the absence of a proposal to remove Mr. Rajpal under s. 24. Alternatively, if I am mistaken in this view, the failure to afford to Mr. Rajpal the statutory rights to which he was entitled under the 1971 regulations, which arose if a valid proposal to remove had been made, may also be seen as depriving the committee of jurisdiction. In this regard I do not accept Mr. Connolly's submission that the applicants rights under the 1971 Regulations arose only at the conclusion of the committee's investigation.

Even if I could gloss over the statutory irregularities in this case and reach the view that the matter, having now reached a committee, should be allowed to proceed, I cannot ignore the fact that this committee hearing, being one with the limited function and agenda set out in s. 24(5), is not one which starts de novo, but rather is one which only exists to inquire into the proposal to remove the officer concerned. Its statutory function relates to sanction, not to investigation. Accordingly it cannot approach the matter de novo with an open mind in the manner of the committee described by Fennelly J. in Traynor v. Ryan. In describing how a committee carrying out an investigation under the Common Contract would perform its functions, he stated (at p. 577):-

"The matter or matters of concern will be investigated by a committee appointed by the Minister. In that situation, it is of prime importance that the committee be in a position to approach the matter in an entirely independent way, unaffected by the views of any other person".

That is the critical difference between the two cases which makes it impossible to allow the present committee to continue.

I want to turn briefly to the issue of fair procedures in the instant case. Much has been made of the failure of Mr. Robinson to accept documents contained in a dossier brought to the July meeting by Mr. Rajpal. These were relevant in the context of any full inquiry given the contentions of Mr. Rajpal that they contained material which went to his defence to the claims advanced against him by Mr. Joyce. Fair procedures in conducting an inquiry would demand they be considered if findings were to be made against him. However, that does not require me to hold that the suspension of the two consultants was invalid, because it does appear to me that there was ample material available to Mr. Robinson to give him reason to believe that one or other or both consultants may have been misconducting themselves and he had to take urgent action to prevent a dangerous situation in the hospital from getting completely out of hand. He had had oral hearings with both consultants before suspending. It seems to me that nothing in the applicant's dossier could have altered the requirement to suspend pending inquiry and, in the absence of any full or proper inquiry at all, the refusal was nihil ad rem on the inquiry issue. The suspension of both men by the CEO at the end of his involvement was effectively no different from one at the start in such circumstances. In my view the ground was well laid for the suspension of both consultants.

This judicial review application has been brought within time. I am satisfied that as and from the 18^th August, 2003, the applicant intended to challenge the legitimacy of all procedural steps which the respondents had set in train. I am also satisfied that the written responses of the third named respondent provided a reasonable justification for the applicant and his advisors to believe that any such objections could be addressed by the committee once constituted. I am further satisfied that these objections were raised before the committee on 11^th December 2003, and rejected by the chairman of the committee on that date. In all the circumstances, a leave application brought on 29^th January, 2004, does not appear to me to be fatally flawed because of delay. Indeed, the question of delay is a matter which gives rise to more criticism of the respondents than the applicant. Months passed during which no functioning committee was brought into existence. This was the position against a background where the Common Contract, and indeed obvious good common sense, requires that complaints against senior surgeons be resolved expeditiously with the minimum amount of delay. This is even more so the case where the suspensions are, as in the instant case, without pay, albeit that Mr. Rajpal has received some ex gratia payments and has been able to do locum work in Enniskillen during the period of his ongoing suspension.

By the same token, I do not take the applicant to have approbated the workings of the committee. In fact no inquiry of any sort has commenced against him and his sole involvement with the committee to date has been as a witness as part of the committee's inquiry into Mr. Joyce.

For these various reasons I will quash the order of the third named respondent appointing the committee herein. I will discuss with counsel any further or ancillary orders which may require to be made in the light of the findings expressed herein, particularly in relation to the continuing suspension of both consultants.

fg(pawankrajpalv.paulrobinson&ors2004 63 jr)JK