The Health Service Executive (HSE) has been denied a Supreme Court appeal in a case it claims raises “significant issues” for its ability to commence disciplinary action against consultant doctors employed under an old contract.
Seeking the appeal, the HSE contended that 227 consultants are still employed under the contract affected by proceedings brought by a colorectal surgeon based at Cavan General Hospital over an inquiry into allegations against him.
The Supreme Court refused to hear the appeal as it said it concerned pre-trial decisions and the main case brought by the doctor should be heard soon by the High Court. The court can consider afresh any potential application for an appeal of whatever conclusive decision is made in the full High Court case.
The HSE’s investigation arose from a staff member’s internal complaint of assault against Dr Pawan Rajpal, who has worked in Cavan for more than 20 years, the court heard. Later, an allegation was made about prescriptions to him that were allegedly signed by non-consultant hospital doctors reporting to him.
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Dr Rajpal, who is on administrative leave from the hospital, strongly denies any wrongdoing.
In being granted a pre-trial order restraining the inquiry, Dr Rajpal was found to have raised a “fair issue to be tried” at a full hearing of his court case.
The issue is whether Dr Rajpal’s 1998 contract, which is similar to contracts under which 227 consultants are still employed, requires any finding of misconduct or a proposal to remove him to be made only by the HSE’s chief executive.
The Court of Appeal last July said it was not appropriate to reach a conclusion, at this pre-trial stage, on the extent to which it was permissible for the HSE chief executive to delegate his fact-finding function in the inquiry to an independent investigator. This should be decided at a full hearing, it held.
The HSE argues the chief executive was exercising his statutory discretion by establishing an investigation by an independent person. It claims it was not practical for the chief executive to personally inquire into and make findings of fact in every case containing allegations.
Shortly after the High Court’s judgment of last February, the HSE placed Dr Rajpal on administrative leave. The consultant then issued separate High Court proceedings seeking another pre-trial injunction to facilitate his return to work at the hospital, but this was refused.
In asking the Supreme Court to hear an appeal against the Court of Appeal decision, the HSE contended the judgment causes issues for its management and has implications for disciplinary procedures across a wide range of employment.
It submitted that the court was wrong to find that the issue of the chief executive’s delegation of his functions amounts to a “fair issue to be tried”, which is the threshold for granting the injunction Dr Rajpal secured.
Dr Rajpal opposed the application for an appeal. He argued an appeal would be premature, given the lower courts’ judgments relate to a pre-trial injunction.
Refusing the HSE’s application, three Supreme Court judges said there was no reason why the full High Court hearing should not be heard in the near future. The judges said the HSE could fully ventilate its case at that trial, so it was not necessary to allow an appeal of the pre-trial judgments to the top court.
An appeal of a pre-trial order may not lead to a definitive answer on the construction of relevant laws and the contract, said Mr Justice Peter Charleton, Mr Justice Maurice Collins and Ms Justice Aileen Donnelly.
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