IESC 39 · Supreme Court

[2005] IESC 39

THE SUPREME COURT

286 & 291/04

Murray C.J

Denham J.

Hardiman J.

Between:

PAWAN RAJPAL

Applicant

and

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

Respondents

JUDGMENT of Mr. Justice Hardiman delivered the 9th day of June, 2005.

1. The factual background of this appeal, and the contractual, statutory and regulatory provisions affecting it, have been so fully set

out in the judgment of the High Court (Kearns J.) delivered the 7th May, 2004, that it is unnecessary for me to repeat them. I

gratefully adopt them as the essential background to this judgment.

2. It is clear that the dispute between Mr. Rajpal and his employers arises from the very difficult relationship which has developed

between him and another consultant surgeon working in the same hospital, Mr. Joyce. This led, in the period from January to May,

2003, to each consultant making multiple allegations of a personal and professional nature against the other. The language and tone

of these complaints clearly indicate that there has been a collapse of normal personal and professional relations between the two

gentlemen and that, to put it mildly, each is extremely wary and defensive in his dealings with the other. That state of affairs clearly

represents a great difficulty for the surgeons themselves and for the management of the hospital involved.

3. The Court’s concern, however, is not with the merits of this dispute. Neither is it the Court’s function to become directly involved

in the human and managerial problems of the former North Eastern Health Board, acute though these may be. This is a matter in the

first instance for the first and second-named respondents, and they have elected to address these issues in terms of particular

statutory, regulatory and contractual provisions which involve the characterisation of the applicant’s actions as amounting to, or

possibly amounting to, misconduct or unfitness.

Mr. Robinson’s letter of the 18th August, 2003.

4. The content of this letter is the initial focus of the Applicant’s complaint. The substance of it is contained in the third paragraph:

“In the case of the complaints/concerns of inappropriate behaviour against you I have concluded that these represent

complaints/concerns of substance, which cannot be resolved in a summary fashion. In my opinion I have reason to believe

that you have misconducted yourself in relation to your office, or that you are otherwise unfit to hold office. After

consultation with the Chairman of the Board it is my decision to suspend you from the performance of the duties of your

office while the alleged misconduct or unfitness is being enquired into, and any disciplinary action to be taken in regard

thereto is being determined. My decision is taken in accordance with section 22 of the Health Act, 1970.”

5. The next paragraph contained the information that

“I shall request the Minister for Health and Children to establish a committee under s.24 of the Health Act, 1970, and

regulations made thereunder”.

6. A process of correspondence and meetings, notably a meeting of the 21st July, 2003, in which Mr. Robinson had engaged in prior to

the 18th August, 2003, was seen by him as “The procedure specified in Appendix IV, paragraph 4 of the contract”. (Mr. Robinson’s

report of the 18th August, 2003). The term “contract” means the Consultants Common Contract.

7. Paragraph 4(c) entitled Mr. Robinson, since he was the Chief Executive Officer of the Health Board, to “decide to act in accordance

with the provisions of sections 22, 23 and 24 of the Health Act, 1970, and the Regulations made thereunder”. If he had not been the

Chief Executive Officer of the Health Board, paragraph 4(d) would have applied to him, enabling him to “act by way of the following

analogous provisions”.

8. The learned High Court judge held that “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 believe that this conclusion is fully justified, based on a perusal of

transcript of Mr. Robinson’s evidence. It was accepted on behalf of the first and second-named respondents that Mr. Robinson “had

indeed conflated the various procedures”. Like the learned trial judge, I have a great deal of sympathy for the position in which Mr.

Robinson found himself by reason of the (as it seems to me) quite unnecessary complexity and confusion inherent in the existence of

two separate but, according to the Common Contract, “analogous” procedures. These are the statutory one contained in sections 22

– 24 of the 1970 Act and the contractual procedure contained in paragraph 5 of Appendix IV of the contract. Which of these

procedures is to be adopted depends, not on the nature of the case or the gravity of the allegations but on the rank of the person

making the decision to refer particular complaints to a committee.

9. Specifically, s.24 (1) of the Act provides that:

“Whenever it is proposed to remove a permanent officer of the Health Board under s.23 because of misconduct… or

unfitness, the Minister shall appoint a committee to perform the functions specified in this section relating to the proposal

for such removal”.

10. By contrast to this, an “appropriate person” who is entitled to proceed under paragraph 4 of Appendix IV 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”.

11. The distinction between the two procedures is self evident. The statutory committee under s.24 is to perform functions “relating

to the proposal for removal”. The Minister must appoint such a committee “whenever it is proposed to remove a permanent officer”.

The appointment of a statutory committee, accordingly, is triggered by a “proposal” to remove. But a committee established under

the appendix to the contract does not require any such proposal in order to be called into being and its functions are much more

general: to “enquire into the matter”. The contractual committee, may, in addition to recommending termination of the consultant’s

appointment may recommend a period of unpaid suspension, the deduction of a sum from the consultant’s pay or an admonition. A

statutory committee “having inquired into the proposal to remove the officer, shall make such recommendations to the Chief Executive

Officer as it shall think fit.”

12. It is quite clear from Mr. Robinson’s letter of the 18th of August and from the report of the same date which accompanied it that

Mr. Robinson requested the appointment of the statutory committee, and no other. When, subsequently, the applicant complained

that he had been suspended without pay even though the contract provided in certain circumstances for paid “administrative leave”

Mr. Robinson rejoined that:

“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.” (Emphasis added)

13. The Committee was then appointed on the 24th September, 2003, and the formal appointment recited the powers which were

exercised:

“In accordance with and in exercise of the power conferred upon me by s.24 of the Health Act, 1970, and in accordance

with the Health (Removal of Officers and Servants) Regulation 1971 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 Act that Mr.

Pawan Rajpal, a permanent officer employed by the North Eastern Health Board, be removed from office.”

Proposal for removal.

14. The learned trial judge held that there had not been, at any time, a proposal to remove the applicant from office. In his evidence,

Mr. Robinson at one point agreed with this proposition. At another stage, however, he said that Mr. Rajpal could and should have

deduced from the fact that an application for a s.24 committee was made that it was proposed to remove him (transcript 2 pp77-

78). It was subsequently put to him that he had never decided to propose to remove Mr. Rajpal and he answered:

“No, I did decided to refer it to a committee to investigate” (sic) (ibid p80)

15. He agreed that he had never told anybody about an intention or proposal to remove Mr. Rajpal. Asked about these inconsistencies

he said:

“There isn’t a proposal to remove Mr. Rajpal in my order because, as I explained, the advice I was given was that the

decision that was made in the Ryan v. Traynor was actually based on the, I forget which Act it was because it was back

along but, it was a Health Board case that decided it.”

The Regulations.

16. From the foregoing it appears that no proposal, expressly at least, was made by Mr. Robinson, or communicated by him to any

person, for the removal of the applicant. This conclusion is in my view, and in the view of the learned trial judge, strengthened by the

entire omission to comply with Regulation 4 of the Health (Removal of Officers and Servants) Regulations 1971. This, it will be

remembered, was one of the powers recited by the Minister in the appointment of the Committee. Regulation 4 thereof 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 representation made by him or on his behalf before the expiration of

seven days after the giving of such notice…”

17. It was contended on behalf of the first and second-named respondents that this provision was only to be acted upon after a

committee had recommend removal. Like the learned trial judge I do not believe that this is so. The opening words of Article 4 reflect

the opening words of s.24 and clearly refer to the same point in time. Moreover, the subsequent subsections of s.24 provide a form of

appeal or reference to the Minister by an officer in relation to whom a recommendation for removal has been made. The Chief

Executive Officer has no power at this stage to accept or reject the recommendation of the Committee: that is a matter for the

Minister if a request is made to him under the relevant subsection. Accordingly, the Chief Executive Officer’s consideration of any

representation can only refer to a representation in relation to the proposal to remove. Mr. Robinson expressly conceded (page 81)

that he did not give Mr. Rajpal any notice of the intention to remove, or of the reasons for such a removal.

Ryan v. Traynor.

18. The learned trial judge held that “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” This finding is in my view amply supported by Mr.

Robinson’s reference to that case in evidence, quoted above. This was a case of a consultant anaesthetist where the person seeking

the appointment of the Committee was not the Chief Executive Officer of the Health Board but the Secretary Manager of a hospital.

He was an “appropriate person” within the meaning of Appendix IV of the Consultants Common Contract. In other words, the case

was not one relating to the operation of Sections 22, 23 or 24 of the Health Act 1970, but was exclusively a Common Contract case.

I agree with the learned trial judge when he says:

“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 s.22 – 24 of the Health Act, 1970. In fact the statutory procedures under the Health

Act are totally different and make quite different demands both on the CEO and any committee appointed under the Act”.

19. Amongst the distinctions between the two procedures, elaborated in the judgment of Fennelly J. in Traynor, is that under the

contract “The management may conduct an investigation without a complaint. It may pursue ‘concerns’ where the management of a

hospital is “concerned” about the behaviour or competence of a consultant, based on observation or general information, it is clearly

entitled to initiate the procedure”. This is in sharp distinction to the circumstances in which the Minister is obliged to appoint a

statutory committee: “Whenever it is proposed to remove a permanent officer from a Health Board under s.23 because of misconduct

or unfitness”.

Deduced or inferred proposal.

20. I would not be willing to deduce or infer the existence of a proposal on the part of the Chief Executive to remove Mr. Rajpal from

the fact that the Minister was asked to appoint a committee under s.24. To do so would fly in the face of the Chief Executive’s own

evidence. It is not the case, as a matter of fact, that he proposed the removal of the consultant: on the contrary, he thought that

he did not have to do so in order to have a committee appointed. He reached this conclusion on the erroneous basis that the decision

in Traynor v. Ryan governed the case. At Book 2 page 78, asked how he could propose to remove someone into whom he had made

no enquiry, and no finding of misconduct against, he said:

“All I can say on this one is that I was advised to the general principles of the Ryan v. Traynor one would have to have

apply [imply?] that it was appropriate for me to decide that there were matters of substance and that is why the way

that the order is actually worded is that I said I had reason to believe that Mr. Rajpal may have misconducted himself and

seek for the Committee to investigate.”

21. On the following page he said “I made a decision to refer it to the Minister to set up a committee to carry out the investigation”.

Asked “Did you or did you not decide to propose to remove Mr. Rajpal?” he said:

“No I did not decide to remove Mr. Rajpal at that point and I haven’t decided since.”

22. In those circumstances I believe that to deduce the existence of a proposal on the part of the Chief Executive (and no other

proposer has been suggested) would be to fly in the face of his own evidence as to his own state of mind. It would also be to ignore

his plain and very honestly given evidence that he acted on the basis that the decision in Traynor v. Ryan governed the situation, as

indeed it would have had a committee under the contract, as opposed to a statutory committee, been sought by an “appropriate

person”.

Conclusion on appointment of the Committee.

23. I believe that the appointment of the Committee was invalid by reason of the absence of any proposal to remove Mr. Rajpal from

office. It was submitted on the part of the first and second-named respondent that even if this were so the Court should refrain from

quashing the Committee’s appointment as a matter of discretion. These parties pointed to the prolonged course the case had taken,

the great difficulties posed by it for Health Service Management and indeed for the public in the relevant area, and the desirability of

allowing the matter to be resolved by committee at this late stage. But to do this would be to ignore the clear statutory protection

afforded to an officer of a Health Board, under which that officer took up his position and to which he appears to me to be entitled. It

would also be to ignore the distinction drawn in the Common Contract (for whatever reason) between the powers of the Chief

Executive Officer and the sort of committee which he may request and the powers of another sort of “appropriate person”. Moreover,

objection was taken by Mr. Rajpal within a short time of the appointment of the Committee (on grounds not so elaborate as those

presently advanced) in substance raising the issue of the ignoring of his rights under the Statute and the Regulations. These were

rejected by the Committee and apparently by the Minister. Now that they have been found to have substance, the delay caused by

that rejection cannot be relied on as a ground for an exercise of discretion against Mr. Rajpal. Furthermore, I could not acquiesce in

an exercise of the discretion which permitted a committee to exercise jurisdiction in so serious a matter when, for the reasons given

above, I believe it has none. Finally, for the precise reasons given by the learned trial judge which I need not repeat, I would reject

any suggestion that Mr. Rajpal has acquiesced in the jurisdiction of the Committee or estopped himself from attacking that

jurisdiction.

24. Like the learned trial judge I cannot regard the deficiencies described above as mere procedural shortcomings. The Chief

Executive Officer did not merely omit to use the formula “propose to remove”: he declined to conduct the enquiry and to arrive at the

conclusions which alone could justify such a proposal. He “passed the chalice onwards” in the learned trial judge’s expressive phrase.

By doing so he deprived the applicant of a protection to which he was entitled: a precise statement of the reasons underlying a

proposal to remove him, which he could hope to rebut before the statutory committee.

Suspension.

25. We have already seen that, in addition to requesting the Minister to appoint a committee under s.24, the first-named respondent

purported to suspend the applicant, without pay, and relied in this behalf on s.22(1) of the Health Act, 1970. This provides that:

“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 taken in regard thereto is being determined”.

26. The suspension is challenged on a number of grounds including that there could be no entitlement to suspend pending an

investigation, when the body envisaged as conducting this investigation is found to have no jurisdiction to do so. Furthermore, it was

urged, no suspension could take place other than pending a statutory enquiry. Moreover, it was contended that the suspension was

in any event flawed because the first-named respondent refused, at the meeting of the 23rd July, to accept a large dossier of

documents prepared by the applicant in his own defence.

27. Though the learned trial judge held that no committee pursuant to s.24 had been validly convened, he upheld the suspension of

the applicant. He further held that the refusal of Mr. Robinson to accept the applicant’s defence document did not vitiate the decision

to suspend. He found that, having regard to the background to the case and certain reports which the Chief Executive Officer had in

his possession:

“Mr. Robinson was certainly entitled at the outset to decide that both men be suspended. He did not however initially

take that course 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 to determine the appropriate sanction,

Mr. Robinson passed the chalice onwards without making any findings. In doing so his only determination was to suspend

both consultants without pay at the conclusion of his involvement.”

28. Having made findings, summarised above, in relation to the purported committee under s.24, the learned trial judge continued:

“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 enquiry 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 enquiry 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 oral

hearings with both consultants before suspending. It seems to me that nothing in the applicant’s dossier could have

altered the requirements to suspend pending enquiry and, in the absence of any full or proper enquiry at all, the refusal

was nihil ad rem on the enquiry 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”.

29. On this issue, I have respectfully to differ from the learned trial judge on two separate grounds.

30. The first relates to the nature of the suspension. It is not an open-ended suspension but one designed to last only “while the

alleged misconduct or unfitness is being enquired into”. The mechanism adopted for this enquiry, the Committee under s.24, was

invalidly constituted because a condition precedent to its constitution, a proposal to remove Mr. Rajpal from office, was never made

by the Chief Executive. That gentleman had himself abstained from making any finding or conducting any enquiry into the allegations

to a conclusion. There is, accordingly, no enquiry in being and indeed no “alleged misconduct or unfitness”, because the Chief

Executive has not complied with Regulation 4 by specifying such. It appears to me that the terms of s.22 (1) require that any

suspension, in order to be valid, must be subtended by an enquiry into misconduct or unfitness which has been alleged against the

suspended person. Since there is no enquiry, and no specific misconduct or unfitness has been alleged by the Chief Executive, the

only person whose allegation can trigger an enquiry, I believe the suspension to be invalid.

31. I would also point out that, if the Chief Executive felt that a dangerous situation existed in the hospital, there was a course of

action open to him which did not involve the drastic consequence of suspension without pay for the applicant. Appendix IV paragraph

3 allows the Chief Executive Officer in certain circumstance to require a consultant to “take immediate administrative leave with pay

for such time as may reasonably be necessary for the completion of any investigation into the conduct of the consultant in

accordance with the provisions hereof.” The power to do this arises if it appears to the Chief Executive Officer that 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.” I am not

saying that such a situation existed in the present case. Indeed, I note that the clinical allegations were all dismissed by the Chief

Executive following a report by Professor Arthur Tanner of the Royal College of Surgeons in Ireland. But if and insofar as he considered

that, for non-clinical reasons, a situation of danger existed (as the learned trial judge thought) this much less drastic option existed.

32. The second point of difference with the learned trial judge, indeed, relates to the drastic nature of the decision to suspend

without pay. Although the Health Board stoutly contended for the proposition that the suspension “had to be seen as a holding

operation as distinct from a disciplinary sanction”, it is quite clearly punitive in its effect on the surgeon suspended. It is calculated to

place him in a position of humiliation and disadvantage. On the one hand it compromises his ability to pay his ordinary liabilities and to

support himself and those for whom he is responsible in the standard to which they are accustomed. It undermines his

creditworthiness. It radically and dramatically transforms his position as a self supporting member of the community. It can be of long

and indefinite duration. It stigmatises him in the eyes of medical colleagues, patients and such members of the wider community as

become aware of it. In a rural area this is probably a substantial group. It puts a major obstacle in the way of his obtaining alternative

employment or developing a private practice. It constitutes a financial disaster, a grave blow, possibly irrecoverable, to reputation

and a gross professional humiliation. Even if the Chief Executive Officer were correct in his view that there was no alternative to

suspension without pay, the consequences of such suspension are so drastic that the person bringing it about would require to be

satisfied of the necessity to do so after a consideration of the statutory powers and of every reasonable representation advanced by

the person whose suspension he was considering.

33. In those circumstances, I cannot hold that the Chief Executive Officer was correct in rejecting the document proffered by Mr.

Rajpal at the meeting of the 23rd July, 2003. Voluminous it may have been, but it was the response to ninety complaints made

against him by Mr. Joyce. Many of these were of a detailed nature, and required detailed rebuttal, if the rebuttal was to be effective.

Many of them refer to other persons as being present at particular events or being able to give evidence about them: the

construction of a refutation would obviously involve addressing this point as well. Although Mr. Robinson had decided that he would

not personally resolve the complaints, this did not absolve him from giving full and detailed consideration to the question of whether

suspension was necessary. I do not believe that refusing even to consider the applicant’s principal written defence was justifiable in

those circumstances.

Conclusion.

34. I would affirm the order of certiorari made by the High Court in respect of the order made by the third-named respondent

purporting to establish a committee to enquire into an alleged proposal to remove the applicant from office. I would further grant an

order of certiorari in respect of the decision and order made by the first and second-named respondents on the 18th August, 2003. I

would not exclude from this order the decision to suspend the applicant pending the conducting of an enquiry and to that extent

would vary the order of the learned trial judge.