Court of Appeal: Consultant succeeds in reversing HSE’s decision to place him on administrative leave for misconduct

About this case:

• Citation:
  [2022] IECA 74
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice Seamus Noonan

The court held that the HSE’s decision to place the doctor on administrative leave should be reversed. It was stated that, inter alia, the length of time that the suspension had been in place and that there was no evidence which suggested the consultant posed a risk to patient safety. However, the court declined to quash the HSE’s decision to recommend the removal of the consultant from HSE employment.

Background

The applicant was a consultant gynaecologist and obstetrician at St Luke’s Hospital Kilkenny and an associate professor at the Royal College of Surgeons Ireland. He was employed by the HSE since 1992. The consultant had observed that the use of a speculum during examinations was uncomfortable and wished to identify alternative methods to minimise discomfort.

As part of his research, the consultant sought to measure the pressure of the internal vaginal wall by insert a balloon catheter in the vaginas of five women during hysteroscopies. None of the women were informed of the research or gave their consent. Further, ethical consent was not obtained by the consultant, who did not tell his employer of the research.

Subsequently, the hospital found out about the experiments and commissioned a report from independent experts into the conduct of the consultant. In October 2018, the experts determined that the study had not been carried out ethically and in accordance with good practice. However, it was not suggested that the consultant posed a danger to patient safety.

On foot of this, the hospital informed each of the women of what occurred. The content of the information and medical advice was distressing for the women. They each issued personal injuries summons for psychological damage, although none suffered adverse physical damage from the procedures.

The hospital commissioned a further, more in-depth report in relation to the events. The Systems Analysis Review (SAR) Report was considered by three more experts. The SAR Report ran to 93 pages and was produced in May 2019. Again, failings on the part of the consultant were found but it was not determined that he was a risk to patients. It was recommended that the consultant undertake further training on consent and good clinical practice, with which the consultant complied.

On receipt of the SAR Report, the hospital also sought the view of a further doctor (Dr McKenna). This doctor indicated in a letter that he had reservations about the consultant’s continued involvement in practice due to, inter alia, lack of insight and a breakdown of trust.

Eventually, in July 2019, the matter was referred to Mr Paul Reid (CEO of the HSE) on the basis that the consultant potentially posed an immediate and serious risk to patient safety. In August 2019, the consultant was placed on administrative leave by Mr Reid.

Extensive submissions were provided by the consultant to Mr Reid and, following a meeting in September 2019, Mr Reid decided to obtain a further report from an internationally renowned doctor, Dr Michael O’Hare. Dr O’Hare determined that the consultant’s conduct was well-intentioned but wrong. It was said that the consultant’s actions fell below the expected standard of conduct. However, having regard to the definition of professional misconduct, Dr O’Hare said that it did not fall “seriously below” standard conduct to amount to professional misconduct.

Owing to a communication error, the consultant was not aware of Dr O’Hare’s report in December 2019. Notwithstanding Dr O’Hare’s report, Mr Reid decided to recommend the removal of the consultant from his employment. The error was addressed by further submissions in January 2020, but Mr Reid did not change his decision. The matter was referred to a “s.24 Committee” which would advise the CEO on the removal of the consultant.

Judicial review proceedings issued seeking to quash the decision to put the consultant on administrative leave and to refer the matter to the Committee. The consultant failed in the High Court and the matter was appealed.

Court of Appeal

In a 61-page judgment, Mr Justice Seamus Noonan held that the consultant should be taken off administrative leave. It was noted that suspension had significant reputational and financial implications for the consultant (Bank of Ireland v Reilly [2015] IEHC 241; Khan v HSE [2008] IEHC 234).

The disciplinary process was not being completed in a speedy fashion, with the consultant suspended for 31 months. Even allowing for stay in the investigation due to the judicial review proceedings, the consultant was under investigation for 27 months. The Committee hearing was likely to take further time to resolve, the court held.

The court also held that there was no risk to patient safety if the suspension was lifted, having regard to the documents and reports in the case. As a matter of basic fairness, the HSE should have reviewed the suspension as further reports became available showing that the consultant was not a threat to patient health.

The court noted that Mr Reid had implicitly ignored Dr O’Hare’s findings in his report despite the fact that Mr Reid decided he needed expert advice. Mr Reid should have reviewed the suspension on receipt of Dr O’Hare’s report as a matter of law, the court said. As such, the consultant was entitled to an order reinstating him with immediate effect.

On the proposal to the s.24 Committee to remove the consultant, the court noted that the Committee had wide powers to make a recommendation to the CEO. The Committee was not bound by Mr Reid’s decision and could make any recommendation that it saw fit (Rajpal v Robinson [2004] IEHC 149 rejected). The court rejected a submission that the Committee was confined to hearing testimony which amounted to a plea in mitigation.

Finally, the court considered whether to quash Mr Reid’s decisions to remove the consultant from employment. The court held that Mr Reid’s decision in December 2019 was invalid because the consultant did not make submissions due to the communications error. The fact that the consultant did not respond to the O’Hare Report should have raised concerns for Mr Reid, the court said.

Further, the decision was flawed because Mr Reid “entirely disregarded” the opinion of Dr O’Hare, despite the fact that the report was requested because Mr Reid needed expert advice on the issue. While not bound by the O’Hare report, Mr Reid needed to give clear and cogent reasons for departing from it (McManus v The Fitness to Practice Committee of the Medical Council [2012] IEHC 350). He did not do so, the court held.

However, the court noted that the s.24 Committee would be entitled to reach its own view, with an “unrestricted remit” to consider all matters. The court also held that a court should only intervene in a disciplinary process if it is clear that the process was irredeemably flawed (Rowland v An Post [2017] 1 IR 355). The court determined that the consultant had not suffered irredeemable prejudice and declined to quash the decision to seek to remove the consultant.

Conclusion

The court quashed the decision to place the consultant on administrative leave and ordered that he be returned to employment. However, the court determined that it was premature to quash Mr Reid’s referral of the matter to a s.24 Committee and therefore refused that relief.