McNamara v. South Western Area Health Board [2001] IEHC 24 (16th February, 2001)

JUDGMENT of Mr. Justice Kearns delivered this 16th day of February 2001. 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 The Respondents’ for their part felt the suspension was justified on the basis the Applicant had withdrawn consultant cover and refused to provide guidance to dental clinicians regarding orthodontic procedures. 7.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. 12. The letter also stated:- “Any careful and reasonable examination of your actions since your return to duty from suspension in February of this year would indicate an unwillingness on your part, not only to comply with the terms and conditions of your employment, but also with the terms and conditions, the basis on which the Chief Executive Officer of the Eastern Health Board recommended to the Minister for Health that the suspension which commenced on the 4th February, 1999 be terminated.” 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:- “Regarding your comment about further appointments, I and my staff of 2.4 dentists are unable to cope with everybody. I have lost 6 clinicians, all the radiographers, all the experienced clerical staff and 6 nurses. I refer to my report of September 4th, 2000. The current clinical load of over 3,000 patients is an enormous patient load. It is not possible to deal with this patient load safely with a staff of 2.4 dentists.” 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. 21. Mr. Walsh stated:- “This is an unacceptable position for the senior clinician in the Department to take and would appear to be a clear example that Dr. McNamara is mis-conducting herself in relation to her office.” 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. 23. Mr. Bennett in his letter to Mr. Donnelly wrote:- “As we can no longer sustain the unsatisfactory position in relation to the delivery of an orthodontic service I am recommending that Dr. McNamara be suspended without pay in accordance with Section 22 of the Health Act, 1970 for the following reasons:- Active treatment of patients were being left without treatment Failure to comply with the terms of a reinstatement agreement Conduct which compromised the interests and reputation of the service.” 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. 25. The letter states:- “Dear Dr. McNamara, I wish to advise you that the Chief Executive has suspended you without pay in accordance with Section 22 of the Health Act, 1970 from the performance of the duties of your office of consultant orthodontist with effect from 19th September, 2000 because he has reason to believe that you have misconducted yourself in relation to your office for the following reasons:- Failure to commence active treatment of patients who were being left without treatment Failure to comply with the terms of your reinstatement agreement Conduct which compromised the interests and reputation of the service The Chief Executive has formed this belief following consideration of a report submitted to him by the Assistant Chief Executive (copy enclosed). Your suspension will continue while any further action to be taken is determined. Please hand over all keys, deeds, mobile phones, office diaries, books or other documents in your possession to Mr. David Walsh, Senior Executive Officer. Yours sincerely,” 26. This suspension is the subject matter of the present judicial review proceedings. 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. THE HEALTH ACT, 1970. Section (1) of the Health Act, 1970 provides:- “Whenever, in respect of an officer of the 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 enquired into and any disciplinary action to be taken in regard thereto is being determined” By virtue of Section 22 (5) and Officer so suspended must be suspended without pay. 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. Section of the Act provides:- “(1) Subject to subsection (2) (4), and officer or servant of the Health Board appointed under Section 14 may be removed from being such officer or servant by the Chief Executive Officer or the Board. (2) A permanent Officer shall not be removed under this Section because of misconduct or unfitness except - On a direction by the Minister under subsection (3) or subparagraph B on the recommendation of a committee under Section 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 refusal of the Board.” Section provides for the setting up of a committee to consider any proposal for the removal of a permanent officer of a Health Board under Section 23 because of misconduct or unfitness. 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. SUBMISSIONS OF THE PARTIES . 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):- “If a professional body is invested with the power of receiving complaints relating to a member of that profession and deciding whether an enquiry 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 about the complaint and the board having sight of any response to such complaint.” 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:- “A planning authority is not obliged to enter into a dialogue with an Applicant or to indicate in advance to an Applicant the planning authority’s thinking or views before deciding on the application. Nor is the planning authority bound to conduct any sort of adversarial hearing of an application before deciding the matter. In the ordinary course of events the planning authority will receive an application, consider it, and decide on it without giving any advance reasons. If the planning authority refuses the application it must give reasons for such refusal at that stage but not earlier. If an applicant bona fide and reasonably and not vexatiously or capriciously requests to make submissions to the planning authority, he should be given an opportunity of doing so. Then if there is a point on which the planning authority knows that the applicant relies to a significant extent and which the planning authority (unknown to the Applicant) thinks is invalid the planning authority should draw the Applicants attention to this point to give the Applicant an opportunity of trying to persuade the planning authority that he is right and they are wrong. This does not mean any obligation to conduct any sort of formal hearing or debate; simply an indication that such and such a point in which the Applicant appears to rely to a significant extent seems to the planing authority to be invalid and what has the Applicant got to say about that?” 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. 41. Full and adequate reasons had been provided by the Respondent to the Applicant. 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:- “ The Fitness to Practice Committee will hold a joint enquiry into the allegations of professional misconduct against Mr. O’Laoire and Dr. Georgopolus and Mr. Philips. It is for them alone to make findings on the evidence before them and report to the Medical Council. The committee has a duty to act judicially and employ fair procedures in the enquiry. It would be totally contrary to the scheme of the Act to interfere with the procedures laid down which envisage the presentation of sworn oral testimony and the finding by the committee. A Judicial Review does not exist to direct procedure in advance but to make sure bodies which have made decisions susceptible of review have carried out their duties in accordance with the law and in conformity with natural and constitutional justice.” 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:- “Where an act or proposal is only the first step in a sequence of measures which may culminate in a decision detrimental to a persons interests, the Courts will generally decline to accede to that persons submission that he is entitled to be heard in opposition to this initial act, particularly if he is entitled to be heard at a later stage.” 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:- “In considering whether this general practice should be followed the Court should not be bound by rigid rules. It is necessary ............. to have regard to all the circumstances of the case.” 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:- “I am, accordingly, satisfied that each of the Applicants in this case was aware of the nature of the irregularities being alleged against them which, in view of the suspending authority, warranted their suspension so that disciplinary action could be considered and an appropriate investigation undertaken. They were not in any way precluded from making such representations as they thought fit to the suspending authority in order that the suspension might be terminated and I am, accordingly, satisfied that the conclusion reached by the learned High Court Judge that they were not in a position to make such representations and that this was a violation of the principles of natural justice and a fair procedures was not justified by the uncontested evidence in the case.” 56. As the Applicant was well aware of the reasons for the suspension in the instant case, he submitted this passage was particularly pertinent. CONCLUSIONS 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 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):- “A three day suspension from a National School either by the Principal or by the Board of Management of that school is not a matter for judicial review. It is not an adjudication on or determination of any rights, or the imposing of any liability. It is simply the application of ordinary disciplinary procedures inherent in the school authorities and granted to them by the parents who have entrusted the pupil to the school.” 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 . armcnamaraswhb(jkearns) © 2001 Irish High Court BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII