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High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Joyce V Minister for Health and Children & Ors [2004] IEHC 158 (30 July 2004)
URL: http://www.bailii.org/ie/cases/IEHC/2004/158.html
Cite as: [2004] IEHC 158, [2004] 4 IR 293
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HC 290/04
[2004 No. 17442 P]
BETWEEN
PLAINTIFF
DEFENDANTS
JUDGMENT of Mr. Justice O'Neill delivered the 30th day of July, 2004.
The plaintiff is a consultant surgeon employed at Cavan General Hospital but currently suspended pursuant to s. 22 of the Health Act, 1970. The second, third, fourth, fifth and sixth named defendants are members of a committee established under s. 24 of the Health Act 1970 to inquire into a proposal to remove from office the plaintiff and to make recommendations to the Chief Executive of the North Eastern Health Board. The second named defendant is the chairman of this committee.
The committee began its hearings on the 17th February, 2004 between that date and the 30th June, 2004 sat on 41 days.
In these proceedings by his notice of motion the plaintiff seeks inter alia an injunction or order restraining the second to sixth named defendants from resuming its hearings on the 11th August, 2004, and if necessary an order restraining the second named defendant from continuing to act as the chairman of the said committee appointed by the first named defendant pursuant to s. 24 of the Health Act 1970 and also for an injunction or order directing the first named defendant to terminate the suspension of the plaintiff pursuant to s. 22 (3) of the Health Act 1970.
The plaintiff's complaint is, as set out in his affidavit, to the effect that from an early stage of the hearings of the committee and on many occasions throughout the hearings the plaintiff who sat directly opposite the chairman beside his counsel, got a strong smell of alcohol from the chairman.
He complaints further that on three occasions namely Wednesday 28th April, 2004, and on Thursday and Friday the 24th and 25th June, 2004 the chairman without any notification failed to appear to conduct scheduled hearings of the committee, and no explanation for such non attendance was subsequently given. On a further occasion on the 26th April, 2004 a scheduled hearing of the committee due to commence at 1.30 pm did not take place. At 12.00 midday on that day the plaintiff was informed by Mr. Duncan Inverarity the solicitor for the North Eastern Health Board, that he had been contacted by one of the committee members (not the chairman) and informed that the committee had to address "certain matters" and that accordingly there would be no committee hearings for that afternoon. The plaintiff had formed the view that the chairman was not looking well on that date.
The plaintiff further complains that on 23rd June, 2004 at 10.30 in the morning while he was in the restaurant at 158/159 Church St. at approximately 10.30 am he was approached by the second named defendant who placed his arm on his shoulder and engaged in a conversation during which he detected a strong smell of alcohol from him. The plaintiff was disturbed by the fact that he was approached in this way, in the absence of his legal advisors.
These complaints are made against the background fact that on the 9th March, 2004 the second named defendant looked extremely unwell and collapsed in the presence of the committee and all those attending and was transferred to the Mater Hospital where he was treated. The hearings of the committee were adjourned until 22nd March, 2004 because of the indisposition of the second named defendant from 9th March, 2004.
The case made by the plaintiff through the submissions of his counsel, Mr. Peter Finlay S.C., is that the cumulative effect of the foregoing has left the plaintiff with a complete loss of confidence in the capacity of the second named defendants to discharge his statutory function as chairman of the foregoing committee and as a result that he has been and is being and will continue to be denied a fair hearing into issues which are of the gravest importance to him having regard to his livelihood and his personal and professional reputation and as a consequence of this there has been a breach of his constitutional right to fair procedures. He makes the case that the accumulative effect of these matters is to erode his belief that he is getting a competent or fair hearing and that he is entitled to vindication from a tribunal after a hearing conducted in a competent and fair manner, and he, as a lay person is entitled not only to have justice done but to see that justice is done, and in the light of the foregoing complaints he wholly lacks confidence in the capacity of the second named defendant to do justice by a proper discharge of his function as chairman of the committee.
The plaintiff placed reliance upon the following passage in the judgment of Keane C.J. in the case of Orange Communications Limited v. The Director of Telecommunications Regulator and Meteor Mobile Communications Limited [2000] 4 I.R.159:
"…a judge may conduct a case in such a manner as to violate the requirements of natural justice or fair procedures: if he does so his decision will be set aside on that ground whether the failure was due to fatigue in the hearing of a case at the end of a long and crowded list, an innate and sometimes regrettably irreversible tendency to rudeness or bad manners, or hostility, overt or covert, to one of the party's based on race, religion or gender or simply because the judge did not like the appearance of the litigant in question. No doubt, the last two examples will readily attract the description of "bias". But in any such instance the decision is set aside not on the ground of objective or even actual bias, but because, under our Constitution and law, natural justice and fair procedures must at all times be observed in the administration of justice and in proceedings before quasi- judicial tribunals and the Superior Courts will not tolerate breaches of these canons, whatever the motive or whether indeed any particular motive on the part of the adjudicating tribunal which has fallen into error has been established."
For the defendants it was submitted by Mr. Connelly that the relief which is sought in these proceedings was of the nature of a public law relief, and ought to be pursued by way of the judicial review procedure which required that leave of the court would first be obtained; the essential relief being sought being in the nature of an order of prohibition.
He submitted that a continuance or otherwise of the suspension of the plaintiff involves the exercise by the first named defendant of a discretion given to him in s. 22(3) of the Health Act 1970. The plaintiffs demand for a lifting of the suspension can be addressed by the first named defendant and this court should not displace the discretion given to the first named defendant by substituting its decision on that question. He submitted that before this court could intervene it would have to find that the suspension ought to be quashed for being invalid, and there was no evidence that the suspension imposed upon the plaintiff was invalid.
He submitted that nowhere does the plaintiff point to any wrong perpetrated by the second named defendant or any error made in the conduct of the hearings of the committee or to any adversity suffered by the plaintiff as a result of any such error. In this regard it was submitted by Mr. Connelly that the case of Dineen v. District Judge Sean Delap v. The Director of Public Prosecutions [1994] 2 I.R. 288 was to be distinguished. He submitted that the Orange case was also to be distinguished as that concerned prejudgment which was not in issue in this case. Mr. Connelly further submitted that not only does the plaintiff not point to any evidence of error on the part of the second named defendant from which he suffered disadvantage but that on the contrary at paragraphs 28 and 37 of his affidavit he indicates that it was his belief that he was being vindicated in the course of the hearings of the committee. He further submitted that the plaintiffs apprehension of incapacity or incompetence on the part of the second named defendant, if it were to attract relief at all could only do so after a determination had been reached by the committee and then through the process of Judicial Review wherein he could apply to quash the decision of the committee if it was adverse to him.
Thus he submitted, that now 41 days into the hearing and with approximately two weeks of hearing still to go, that it was premature for this court to intervene as it was impossible to determine the effect which the matters complained of by the defendant could or would have on the outcome of the proceedings. In this regard he points to the fact that fellow members of the committee on 30th June, 2004 declared their confidence in the second named defendant. He further submitted that the evidence fell significantly short of justifying the plaintiffs apprehension of a lack of capacity or competence on the part of the second named defendant, particularly as the plaintiff had not pointed to any error in the conduct of the proceedings of the committee on the part of the second named defendant and hence on that ground alone the relief sought should be refused.
Mr. Connelly further submitted that the failure by the second named defendant to turn up offended against courtesy and at most caused inconvenience but did not prejudice the plaintiff in the conduct of his case as the evidence which he proposed to adduce on the 24th and 25th June could be heard on another occasion.
He further submitted that where reliance was placed upon the principle that justice had to be seen to be done as distinct from an established injustice consequent on the breach of a right, that the threshold for intervention by this court would have to be set very high in order to protect tribunals from groundless allegations for the purposes of halting proceedings which might be perceived by the party to be progressing badly for them. In this regard the presumption of regularity would have to be rigorously applied.
It was submitted that the absence of any affidavit from members of the committee should not lead to any adverse conclusion as it was inappropriate for members of the tribunal to swear affidavits and render themselves liable to cross-examination and thereby involve themselves directly in conflict with the plaintiff in these proceedings. In this context he drew the analogy between the position of a circuit judge or district judge in Judicial Review proceedings.
He further submitted that there was no evidence that the second named defendant had not been paying attention or listening or that he had not given proper rulings.
Relevant to these proceedings are the following parts of ss. 22, 23 and 24 of the Health Act, 1970 which read as follows:
Suspension of other officer of Health Boards
"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.
(2) The Chief Executive Officer shall notify the Minister forthwith of any suspension under this section, and shall state the cause of the suspension to the officer and to the Minister.
(3) Every suspension under this section shall continue until terminated by the Chief Executive Officer or, in the case of a suspension which has continued for longer than one month, the Minister.
(4) …
(5) An officer suspended under this section shall not be paid any remuneration (other than remuneration for a period prior to his suspension) in respect of his office during the continuance of his suspension and, on the termination of his suspension, the remuneration which he would, had he not been suspended, have been paid during the period of suspension shall be wholly or partly forfeited or paid to him or otherwise disposed of as may be directed by-
(a) in the case of a suspension of not more than one month's duration, the Chief Executive Officer, and
(b) in any other case, the Minister.
(6) Whenever an officer of a health board is suspended under this section, the chief executive officer may, if he thinks fit, make, with the consent of the Minister an ex gratia payment to the suspended officers.
Removal of officers and servants.
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.
(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 subs. (3) or
(b) on the recommendation of a committee under s. 24 or on a direction by the Minister under section 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.
(4) A permanent officer shall not be removed under this section for a reason other than misconduct or unfitness except with the approval of the board.
(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.
Committees for certain removals
24-(1) Whenever it is proposed to remove a permanent office of the Health board under section 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.
(2) Membership of a committee appointed under this section shall consist of –
(a) one person being the chairman of the committee who shall be selected by the minister at his discretion,
(b) an even number of other persons of whom –
(i) half shall have be selected by the Minister from a panel of persons nominated by such organisation (or organisations) as is (or are) in the opinion of the Minister representative of the class of officers to which the person belongs or where, in the opinion of the Minister, there is no such organisation or where nominations under this subparagraph have not been made, from such persons as he considers appropriate and
(ii) half shall be selected by the Minister from a panel of persons nominated by the Chief Executive Officer of the Health Board…
(5) a committee under this section, having inquired into the proposal to remove the officer, shall make such recommendations to the chief executive officer ass it thinks fit,
(6) any question arising before a committee under this section shall be decided by the majority of the members of the committee who are present and vote and, in the case of an equality of any votes on any question, the chairman shall have a second or casting vote.
(7) a committee under this section may act notwithstanding any vacancy amongst its members…."
The following provision of the Health and (Removal of Officers and Servants) Regulation 1971 S.I. No. 110 of 1971 has some relevance and is as follows:
"(9) Where, before a committee has made a recommendation, the chairman of the committee for any reason becomes unable to continue to act as such, the Minister may at the request of the officer concerned, or if he considers it desirable to do so, appoint another committee."
Decision
I am satisfied that the evidence on affidavit proves on the balance of probabilities that the complaints made by the plaintiff as set out above are proven. I reach that conclusion bearing in mind the contents of paragraph 10 of the affidavit of Duncan Inverarity and also accepting as I do the reasons advanced by Mr. Connelly for the fact that no affidavit has been filed on behalf of the members of the committee.
From this evidence I am satisfied of the following:-
1. That there was any smell of alcohol detectable by the plaintiff from the second named defendant on many occasions during the hearings of the committee.
2. That the second named defendant failed to turn up without any notice given on three occasions and no explanation was ever offered in relation to these absences.
3. That on the morning of the 23rd June, 2004 in the restaurant at 158/159 Church St. that the second named respondent made an inappropriate approach to the plaintiff during which the plaintiff got a strong smell of alcohol from the second named defendant.
4. That there is no evidence of the second named defendant failing to listen to the proceeding or failing to pay adequate attention during the hearings.
5. That there is no evidence of any errors on the part of the second named defendant in his rulings during the hearings.
6. That there is no evidence of any actual disadvantage or prejudice suffered thus, far in the proceedings of the committee apart from the very obvious inconvenience or having to cancel and reassemble witnesses as a result of the non attendance of the second named defendant on the 24th and 25th June, 2004.
I am satisfied on the evidence that the plaintiff has not demonstrated that thus far in the proceedings he has suffered any prejudice as a result of any error on the part of the second named defendant or of the committee in general.
However I have no doubt whatsoever that the matters of which he complains have given rise to a very real apprehension on his part, that the second named defendants has throughout the hearings and continues, to lack the capacity or competence to discharge his function as chairman of the committee both in the hearings and in arriving at a recommendation. I am satisfied that there has, justifiably, been a complete erosion of his confidence in the capacity of the chairman to bring the proceedings of the committee to a competent and thus a fair conclusion.
In my view the plaintiff having regard to the seriousness of the issues which are involved, from the point of view of his livelihood and his professional and personnel reputation is entitled to have the matters under consideration by the committee, heard and determined by a tribunal, all of whose members had the capacity at all times during the course of the hearings and in reaching a conclusion or recommendation, to properly discharge their function.
Little could be more detrimental to the capacity of someone in the position of the second named defendant to discharge his functions, than the matters to which the plaintiff has drawn attention. Even if the second named defendant retained a capacity to properly discharge his function in spite of the matters complained of, a person in the position of the plaintiff could not be expected to accept that, or to have any confidence in the fairness of the proceedings and its conclusions.
What has happened here is that even though the second named defendant or the committee in general had not so far, fallen into demonstrable error, nevertheless by reason of the matters to which the plaintiff has drawn attention, it can be said that the plaintiff has had to endure a hearing before a committee, the chairman of which has lacked the capacity to discharge his function and hence in my view the plaintiff's constitutional right to fair procedures has been breached and if this committee were to be permitted to continue its hearings there would be an ongoing breach of his constitutional right to fair procedures.
I am satisfied that even though no error has been demonstrated on the part of the second named defendant in the conduct of the hearings, that nonetheless the matters of which the plaintiff complains, which I accept as having occurred, in themselves demonstrate an actual lack of capacity on the part of the second named defendant to discharge his function and additionally would inevitably and unavoidable lead, on the part of any ordinary reasonable person to a loss of confident in the capacity of the second named defendant to discharge his function in a fair and competent manner.
In addition to the actual breach of the plaintiffs constitutional right to fair procedures there is also in issue the principle that not only must justice be done but it must be seen to be done. I would accept as has been urged upon me by Mr. Connelly that for that principle to be invoked, requires a very high threshold of proof, in order to protect the proceedings of the many and varied tribunals that sit on a daily basis in this jurisdiction, from unmeritorious allegations designed to frustrate their proceedings. In this case however I am quite satisfied that the matters of which the plaintiff complains are of such a serious nature as to cross that threshold and justify the granting of a relief on that ground alone.
This brings me to the question of what is the appropriate relief to be granted. Mr. Connelly submits that the issue raised is a public law matter and should have been pursued by way of application for a judicial review with initially an application for leave to apply for judicial review and indeed he invited me to treat this application as an application for leave.
There may indeed be some merit in this submission but were I to treat this application as an application for leave to apply for judicial review I would have no hesitation in concluding that the plaintiff had demonstrated arguable grounds and was entitled to leave to apply for judicial review and in which case the question of an injunction or a stay under order 84 rule 20 (7) of the Rules of the Superior Courts would arise and I would be disposed in the circumstances of this case to grant such relief.
I am satisfied that regardless of the merit of, or appropriateness of an alternative procedural approach, it is right in this case to grant relief on foot of the plaintiff's notice of notion.
That brings me then to the appropriate relief. In his notice of motion the plaintiff claims an injunction restraining the second to sixth named defendants from resuming hearings on the 11th August, 2004. Also an injunction is claimed restraining the second named defendant from continuing to act as the chairman of the committee. In addition an injunction in the nature of a mandatory injunction is claimed directing the first named defendant to terminate the suspension of the plaintiff.
The complaints which the plaintiff in these proceedings are directed exclusively against the second named defendant. Hence it could be said that an injunction restraining the second named defendant from continuing to act as chairman would suffice enabling the committee to continue its proceedings as it would appear to be empowered to do under s. 24 (7) of the Health Act 1970. A problem of course arises when one considers Article 4 (9) of S.I. No. 110 of 1971, insofar as that article seems to provide that where a chairman is no longer able to act the Minister may if he considers it desirable or indeed in the circumstances where he is requested by the officer in question, he may appoint another committee.
I am informed by Mr. Connelly that this is the first occasion on which these provisions have had to be considered in a judicial context and as he points out, there are obvious difficulties of interpretation. It would seem to me that in the circumstances of this case it would be wholly undesirable to plunge the parties into the difficult legal issues that might arise if I were merely to restrain the second named defendant from continuing to act as chairman of this committee. It would seem to me manifestly clear that the balance of convenience would be better served by the granting of an injunction restraining the entire committee from resuming its hearings on 11th August, as is proposed and I will grant that injunction.
That brings me to the final issue which is raised in this application and that is the claim by the plaintiff for an injunction of a mandatory nature directing the first named respondent to terminate the suspension which remains imposed upon the plaintiff under s. 22 (3) of the Health Act 1970.
I agree with Mr. Connelly's submission that the first named defendant has a discretion as to whether or not continue the suspension or to terminate it and that is a matter which he has not yet addressed and hence this court should not interfere before the minister has had an opportunity to exercise his discretion under s. 22 (3) of the Health Act, 1970.
Because the first named defendant has not yet exercised his discretion under the section, I will not grant an injunction directing him to exercise that discretion one way or the other. It would be wrong for this court to interfere with the exercise of such a discretion in advance of it being exercised at all, and indeed in the absence of any evidence of an improper exercise of that discretion.
I do however feel it appropriate to observe, an observation indeed, which is perhaps no more than a statement of the obvious, that this suspension has now been in existence for almost one year during which the plaintiff has been kept out of his office without pay and that this must be having a grossly detrimental effect on his livelihood and on his professional and personal reputation and must be a source of the utmost hardship to him and his family. I do not think that it was ever conceived that suspensions for the purpose for which this one was imposed would continue for that kind of length.
Approved 30/07/04
Iarfhlaith O'Neill