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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> McNamara v. South Western Area Health Board [2001] IEHC 24 (16th February, 2001) URL: http://www.bailii.org/ie/cases/IEHC/2001/24.html Cite as: [2001] IEHC 24 |
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1. The
Applicant is a Consultant Orthodontist attached to St. James Hospital in Dublin
which is under the administrative control of the Respondents.
2. The
Applicants’ function as an officer of the Health Board was to operate and
develop an efficient orthodontic service for public health patients in the
Dublin region. She had previous experience between 1992 and 1996 in developing
such a service on behalf of the Western Health Board.
3. The
genesis of the present difficulties between the parties derives from the huge
waiting lists in the Dublin area for orthodontic services. In 1996 some 18,000
patients were on the waiting list, so that the Applicant and her team were
confronted with a huge clinical load. She initially had a team of some 9
dentists. The Applicants approach to the daunting challenge which the waiting
lists presented was to concentrate a large part of her own energies on
diagnostic aspects of orthodontic work. She would then allocate treatment
functions to the various members of her team. While occasionally she would
treat patients herself, and was available to help in individual cases where
necessary, her functions were mainly supervisory. Of course, in a wider sense,
she had the obligation to develop and foster the service as part of a team
effort.
4. The
Applicant and her team succeeded in reducing the waiting list to 6,600 in 1999
in the Dublin area. This figure had risen to 11,000 by the year 2000,
constituting, in the words of Counsel, an “acute crisis” in the
public orthodontic services in the Dublin region.
5. From
1998 onwards, difficulties arose between the Applicant and the Respondents
because of their differing approaches as to how this case load could best be
handled. In particular, there were poor working relations between the
Applicant and Mr. Seamus O’Brien who took over the management of the
orthodontic service in February 1998.
6. On
the 4th November, 1999 the Applicant was suspended because she refused to work
a system which she considered to be unsafe. The Respondents’ for their
part felt the suspension was justified on the basis the Applicant had withdrawn
consultant cover and refused to provide guidance to dental clinicians regarding
orthodontic procedures.
7. The
letter dated 4th November, 1999 advising the Applicant of her initial
suspension also cited additional reasons, including the alleged refusal of the
Applicant to carry out administrative duties, refusal to co-operate in the
management and development of the orthodontic service and refusal to comply
with the legitimate directions of the programme manager.
8. After
lengthy negotiations, which involved legal advisors on both sides, the
Applicants’ suspension was lifted in January 2000 on the basis that the
Applicant unconditionally accepted and agreed to comply with the specific
duties attaching to her office which were defined in a letter from the
Respondents’ Solicitors dated 1st December, 1999.
9. This
undertaking required the Applicant to comply fully with her conditions of
employment, carry out her administrative duties in accordance with the
conditions of appointment, to report to and comply with all legitimate
directives given by the programme manager and to work closely with those
responsible for the day to day management of the orthodontic service.
10. However,
following the Applicant’s return to work, the same problems and
difficulties represented themselves culminating in a letter dated 24th August,
2000 from Mr. Seamus O’Brien to the Applicant wherein he pointed out that
he would be forced to recommend that the Applicant would again be suspended
unless he received from the Applicant evidence of her commitment and
preparedness to immediately co-operate in the provisions of the orthodontic
service as outlined in the letter.
11. His
letter referred to a plan which had been drawn up and approved by the
Respondent board to deal with the waiting list of patients awaiting assessment
and treatment. The key elements of this plan, which the Applicant had been
notified by letter dated 6th July, 2000, included the immediate employment of
one locum consultant orthodontist, the appointment of 6 community orthodontists
from existing M. Orth. staff, the recruitment of 3 Senior managers and approval
for the recruitment of additional clinicians, nursing and administrative staff.
13. As
far as the Applicant was concerned, Mr. O’Brien’s letter provided
the clearest possible proof that, in referring to details of an elaborate
recruitment campaign in respect of the service, the Applicant was, at that
time, being forced to manage an impossible workload.
14. The
gravity of the situation is apparent from Mr. O’Brien’s statement
in his letter that action was required from the Applicant to progress the
provision of treatment to patients who have been left without treatment for up
to 1 year and that she should co-operate fully with the boards plans. In
addition to the recruitment proposals outline above, Mr. O’Brien’s
letter also required of the Applicant that she personally immediately commence
active treatment of as many as possible of the patients “who have been
left without treatment for up to 1 year”, that the Applicant agree to
accept referrals from the community orthodontists, that she co-operate in the
arrangements to be put in place by the board to have “the interrupted
patients and new patients treated by competent clinicians from outside the
board” and that she co-operate with any other consultant orthodontist
employed by the board in the provision and development of orthodontic treatment
and services. She was also called upon to provide data from February - August
2000 outlining the productivity of all clinicians working in the Regional
Orthodontic Unit, to be submitted to Mr. David Walsh, Senior Executive of the
Respondent, by 6th September, 2000. On the 4th September, the Applicant
furnished a report providing the data sought.
15. By
letter dated 13th September, 2000, Mr. David Walsh requested a detailed report
from the Applicant regarding the provision of orthodontic services by her,
specifically with regard to “how many of the patients started by you
personally during the period (from February 7th, 2000 to September 1st, 2000)
are in fact in active treatment rather than merely reviewed”. His letter
expressed concern that there had been numerous enquiries from patients and
their parents in relation to the provision of orthodontic treatment, some
enquiries suggesting that treatment had been interrupted for periods up to 1
year, with many patients expressing fears that such long delays might cause
damage to their teeth. The letter also sought clarification of a suggestion
that the Applicant was providing no further appointments to patients.
16. On
the 15th September, 2000 the Applicant furnished a 13 page report setting out
the difficulties with the service as she saw them, the nub of which was the
impossible clinical load with which she had been burdened.
17. She
pointed out that she was doing her best to provide a service for over 3,000
orthodontic patients with 2.4 dentists. She pointed out that treating cases
personally restricted her ability to supervise considerably and limited her
ability to ensure the safety of the large number of patients which she needed
to review. In relation to the difficulty with appointments:-
18. On
the same day, Mr. Walsh wrote to Mr. Pat Bennett, Assistant Chief Executive
Officer of the Respondents detailing the difficulty the Respondents' had
experienced with the Applicant since her return to work and referring to Mr.
O’Brien’s letter of 24th August which had demanded specific actions
on the part of the Applicant to resolve the current crisis situation.
19. Mr.
Walsh informed Mr. Bennett that while Dr. McNamara had submitted data to
himself, “no substantive reply has been received to Mr.
O’Brien’s letter of August 24th and the urgent clarification
regarding the patients that Dr. McNamara has seen since her reinstatement has
not been supplied either. In view of this and in the light of the serious
situation outlined above it is now essential that appropriate action be
taken.”
20. This
letter also referred to some incidents where it was suggested the Applicant
would not remove braces from patients who sought their immediate removal. It
was suggested that Dr. McNamara had referred such patients to Mr. Walsh or Mr.
O’Brien, creating the impression that either or both these persons had
clinical functions.
22. On
the same day, Mr. Bennett wrote to Mr. Pat Donnelly, Chief Executive Officer of
the Respondent’s enclosing Mr. Walshe’s letter of the same date.
24. A
decision to suspend the Applicant without pay was taken by the Chief Executive
Officer and communicated to the Applicant by letter dated 19th September, 2000.
27. Rather
than laboriously recite the grounds upon which leave to bring judicial review
proceedings was granted, or the grounds of opposition, it is more expedient to
move immediately to the two critical points which Mr. Hogan submits entitle the
Court to intervene.
28. Firstly,
he argues that the Applicant was denied fair procedures in and about the making
of the decision to suspend.
29. Secondly,
he submits that the decision to suspend was, in the circumstances, irrational,
because the decision did not comply with the essential legal requirements of
such decisions that they be made in good faith, be reasonable and be factually
sustainable.
30. Mr.
Stewart on behalf of the Respondent has pointed out to the Court that the Act
contains a scheme or process to provide for situations such as the current one
and that the instant case is at the initiation point of the procedures provided
for.
31. The
Health (Removal of Officers and Servants) Regulations 1971 (SI no. 110 of 1971)
further provide for Notice to an officer of any intention to remove him and the
reasons for same and for an opportunity for the officer to make representations
which must be considered by the Chief Executive Officer before any proposal to
remove the officer goes further.
32. On
behalf of the Applicant, Mr. Hogan submitted that fair procedures apply in
respect of a decision to suspend a professional person from their position.
33. He
cited the following passage from the judgment of Geoghegan J in
O’Ceallaigh
-v- An Bord Altranais and Attorney General
(unreported judgment delivered on the 17th May, 2000):-
34. While
Mr. O’Brien by letter dated 24th August, 2000 threatened a further
suspension unless he received evidence of commitment and preparedness to
co-operate in the provisions of the orthodontic service, any fair reading of
the Applicant’s own response would suggest she responded fully to the
concerns of management and provided clear evidence of her commitment to the
service. It is simply not good enough for the Respondent to state as had been
argued before the Court, that the responses of the Applicant “did not
address the fundamental issues in question”.
35. If
her reports of the 4th September and 15th September failed to address the
important issues, then it was incumbent upon the Repsondent’s to seek
clarification of those matters from the Applicant before proceeding to a
suspension. In the instant case, there was no indication that the
Applicant’s report of the 15th September, 2000 was ever seen by the Chief
Executive Officer. It was in this unsatisfactory way that the decision was
taken to suspend her with immediate effect. Mr. McMahon letter to the
Applicant does not state in what respects her report or responses did not
address fundamental issues.
36. If
the Respondent’s felt that some critical fact had not been addressed by
the Applicant, it was their obligation to disclose this concern to the
Applicant prior to exercising the drastic step of suspension without pay. Mr.
Hogan cited the observations of Lynch J in
French
Church Properties -v- Wexford County Council
(1992) 2 IR 268 as follows:-
37. Again
on the theme of fair procedures, a significant allegation had been raised that
the Applicant had been fobbing off patients onto non medical staff in a manner
utterly inconsistent with her clinical responsibilities. This was an extremely
serious allegation which the Applicant had been given no opportunity to address
or rebut.
38.
On the second leg of his submissions
Mr.
Hogan further submitted that Section 22 of the 1970 Act vests certain powers in
the CEO if he is “of opinion” that an Officer has misconducted
herself or is otherwise unfit for office. There is no suggestion in the
instant case that the Applicant is otherwise unfit for office. Where such a
discretionary power is vested in the Respondent, he submits that the Respondent
must show that it has exercised such powers
bona
fide
,
reasonably and in a manner which is factually sustainably. These were the
tests indicated in
Kiberd
-v- Hamilton
(1992) 2 IR 257.
39. The
Respondent’s
bona
fides
are
not at issue, he says. The real question, therefore, is whether the Respondent
could reasonably have formed the view that such suspension was necessary
because of misconduct and whether such a finding was factually sustainable. It
is submitted that so far from misconduct, the Applicant was struggling to cope
with the unmanageable demands that had been placed upon her. He submits that
in the light of the lengthy report submitted by the Applicant, no fair minded
person could reasonably have proceeded to suspend her.
40. On
behalf of the Respondent, Mr. Stewart submitted that there was no obligation on
the Respondents to provide an opportunity to the Applicant to make
representations prior to her suspension. The suspension did not involve any
finding or determination, nor did it amount to a sanction. It was but the
first step in a process which might lead either to reinstatement or removal and
the Court should not intervene when a statutory process is provided for where
the evidence clearly indicates that the Respondents were following that
procedure.
42. There
could be no doubt but that she was fully aware of all circumstances surrounding
her previous suspension in 1999 and the circumstances in which she had been
allowed resume her duties and the undertakings which she gave at that time.
43. In
fact, on the 24th of August, 2000 the Respondents did provide the Applicant
with an opportunity to make representations in relation to the matters of
ongoing concern to the Respondents. Her response, however, was a part response
only, in the sense that she submitted data and statistics, but failed to
address the more fundamental concerns.
44. Following
her suspension in September, 2000, the Applicant had attended a meeting with
the Respondents on the 26th October, 2000 as part of the ongoing procedures and
machinery provided for under the Health Act.
45. Mr.
Stewart then referred to the Health (Removal of Officers and Servants)
Regulations 1971 (SI number 110 of 1971).
46. These
regulations provide that prior to any decision to remove an officer, notice
must first be given to the officer, providing reasons for the removal and
affording an opportunity to the officer to make representations. No effect
could be given to any proposal for removal until representations made by or on
behalf of an officer had been considered.
47. This,
according to Mr. Stewart, was the point at which the entitlement of fair
procedures arose and they were adequately provided for under the Statutory
Code.
48. Mr.
Stewart submitted that the Court should not lightly intervene to interfere with
procedures laid down by statute, and cited the following passage from the
judgment of Carroll J. in
Philips
-v- Medical Council
(1992 ILRM 469) at p.p. 474/5:-
49. The
Applicant, Mr. Stewart submitted, had not seen fit to invoke the Courts
intervention in relation to a prior suspension which arose out of similar
problems and difficulties. Her present application to the Court was premature
in view of the machinery provided for in the statute. The Respondents were
entitled to expect from a consultant in the Applicant’s position the
highest level of co-operation and the Applicant simply didn’t provide it.
50. Mr.
Stewart also referred to the judgment of Geoghegan J. in
O’Ceallaigh
-v- An Bord Altranais
and to the general statement of law contained in De Smith’s Judicial
Review of Administrative Action (4th Edition (1980) p. 199) cited by Geoghegan
J. (p.2) which reads as follows:-
51. He
accepted that Geoghegan J., in referring to
Rees
-v- Crane
(1994 2 AC 173) qualified this general statement of the law by quoting Lord
Slynn’s statement:-
52. He
concluded that an exception existed in the case of the initiation by a
professional body of an inquiry into a professional person’s fitness to
practice.
53. That
case could be distinguished from the present one, Mr. Stewart submits, because
the Applicants fitness to practice her profession was the issue, unlike in the
instant case where the issue was confined to the Applicants employment with the
Respondents only.
54. The
Applicant in the instant case was well aware of the matters likely to give rise
to her suspension and would also have been aware that following any suspension
further enquiries and steps would ensue, as indeed had occurred in the instant
case in October, 2000. In essence, therefore, the suspension was nothing more
than a holding operation, pending further enquiries. The Court should view
the suspension as a holding operation rather than a sanction. And given that
the Applicant had been furnished with the reasons for the Respondents decision,
her only entitlement was to make representations at a later stage, a position
which was safeguarded under the 1971 Regulations.
55. Mr.
Stewart referred to
Deegan
-v- Minister for Finance
(2000) ELR 191 and cited the following passage from the judgment of Keane C. J.
at p. 205:-
56. As
the Applicant was well aware of the reasons for the suspension in the instant
case, he submitted this passage was particularly pertinent.
57. It
is difficult not to feel a measure of sympathy for both sides to this dispute,
confronted as they were with the relentless problems created by huge waiting
lists of patients.
58. I
can understand the force of Mr. Stewarts submission that the question of
suspension should not be looked at in total isolation as though there were no
other procedures or avenues available to the Applicant under the Health Act
1970 for the ultimate resolution of the major differences between the Applicant
and her employers.
59. However,
as Mr. Hogan has pointed out, the fact that statutory procedures exist does not
absolve the Respondents from the obligation to discharge those
responsibilities, at any and every stage in the process, in a fair, responsible
and reasonable manner.
60. An
allegation of misconduct against a senior consultant is a serious matter. As
Mr. Hogan points out, nothing in the ongoing dispute between the parties
suggests the Applicant was “unfit” in the performance of her
duties.
61. Whether
a suspension invokes fair procedures or not seems to me to hinge entirely on
the gravity of the reasons for the suspension, the implications for the person
concerned and the likely consequences following suspension. Obviously there
can be decisions with adverse implications for the person affected thereby
which nonetheless fall short of infringing their legal rights. In
Murtagh
-v- Bord of Management of St. Emer’s National School
(1991) 1IRP 482, the Supreme Court found that a three day suspension of a pupil
from a National School was an ordinary application of disciplinary procedures
inherent in the school authorities which did not involve an adjudication or
determination of rights and liabilities and therefore the remedy of certiorari
did not lie. Hederman J stated (at p.488):-
62. That
situation can only be seen as being in total contrast with the situation in the
instant case. Here the suspension was open ended and non-specific in duration.
It seems to me that the suspension of a Senior Consultant without pay must be
seen as something more than the mere “holding operation” contended
for by Mr. Stewart. It is, in my view, a sanction, and a severe one at that,
which can only have damaging implications for any professional person in the
Applicants position. This is even more so the case where the suspension is a
second suspension, suggesting as it must that events are inexorably moving
towards the possible removal of the Applicant.
63. While
the right to make representations is reserved under the 1971 Regulations to the
stage of proposed removal from office, a suggestion of misconduct convinces me
that the Chief Executive Officer should at least have before him some statement
of the Applicants position on the matters in issue before proceeding to
suspend.
64. At
the time of forming his opinion, the Chief Executive Officer did not have
before him the detailed report furnished by the Applicant on the 15th of
September.
65. Much
more significantly, he did not have before him any response of any sort from
the Applicant in relation to the suggestion that she was fobbing off patients
and suggesting they seek appointments from those effectively charged with
administrative duties, the very behaviour which provided the basis for the
finding or charge of misconduct on the part of the Applicant.
66. The
letter furnished by Mr. McMahon on the 19th of September can only, it seems to
me, be construed as containing findings or charges prejudicial to the Applicant
to such a degree that a suspension should only have been made after Mr.
Donnelly had some up to date account of both sides of the case on those issues
before him. While arguably the lengthy correspondence and reports submitted
from time to time by the Applicant may have being known in a general way by Mr.
Donnelly, they did not address all of the issues, notably the third reason
given for suspension. Specifically, he did not have her report of the 15th
September, 2000, which attempted to address the other issues.
67. Mr.
Stewart seeks to meet this difficulty be stating that the Applicants other
reports did not adequately deal with the fundamental issues in respect of which
the Respondents required reassurance. I would have thought that that
constituted an even stronger reason for seeking some clarification from the
Applicant before proceeding to make the determination which was in fact made.
68. I
accordingly find in favour of the Applicant on the grounds that she was
entitled to fair procedures in the particular circumstances of this suspension
but did not receive them. I do not propose to rule on Mr. Hogan’s second
line of argument lest I veer into areas of assessing the merits or otherwise of
the Applicant’s case which can be adequately addressed in the context of
the statutory procedures contained in the Act.