The Applicant in this High Court case was employed by the HSE (Respondent) as a Consultant Gynaecologist and brought these proceedings challenging a number of decisions that were made by the CEO of the Respondent in connection with his investigation of certain events that occurred on 4th and 5th September 2018.

The Applicant challenged a decision that was made by the CEO of the Respondent to place him on administrative leave on the basis that the decision was irrational having regard to the fact that it was made some 10 months after the events of the subject matter of the investigation, during which time there had been no complaint or concern raised in relation to the applicant’s suitability to treat patients.

The Court was satisfied that it should have been abundantly clear to the Applicant and his legal advisers that that process would not conclude within the three-month time period allowed under the rules for challenging the decision made on 6th August 2019 whenever the CEO sought expert opinion on the matter. Accordingly, the court held that the applicant was out of time to challenge the decision made by the CEO of the respondent on 6th August 2019 to place him on administrative leave. However, the court accepted that placing a person on administrative leave is a serious matter which can cause them reputational damage and psychological distress.

The Applicant also challenged a decision made by the CEO on the 23rd of December 2019 which was to make a recommendation that he be dismissed from his position of employment as a Consultant Gynaecologist with the Respondent. The Applicant stated that that decision was fatally flawed. The Applicant submitted that as the CEO was not medically qualified, nor qualified in the area of medical ethics, his decision to ignore the opinion given by the expert, was irrational and therefore ought to be struck down.  Finally, the Applicant alleged that the entire investigatory process had been tainted by bias, due to the fact that he had been an outspoken critic of management at the hospital and of the respondent generally, over a long period of time.

The investigation referred to above took place following the Applicant having performed a feasibility study on five patients without obtaining their express consent. None of the five patients had been informed that the feasibility study was going to be carried out. The applicant had not sought or obtained any clearance from the hospital’s ethics committee to carry out the feasibility study. The matter came to light because some of the nursing staff were concerned that there was an infection control risk with the procedure.

The CEO of the Respondent, with the consent of the Applicant, had obtained an expert report from a Dr. O’Hare on the matter. The CEO informed the Applicant that he would have an opportunity to make submissions on that report.  In compliance with that obligation, the CEO had sent Dr. O’Hare’s report to the Applicant’s solicitor by email on 6th December 2019.  As such, the CEO had acted in an entirely proper fashion.  The O’Hare report was largely in favour of the Applicant in terms of the opinions expressed therein, therefore it was reasonable for the CEO to assume that the absence of any submissions meant that the Applicant did not wish to say anything further about it. Accordingly, it was reasonable in the circumstances for the CEO to proceed to make his decision of 23rd of December 2019 without having received any further submissions from the Applicant.

The CEO of the Respondent clearly set out his reasons why he was not going to follow the opinions given by Dr. O’Hare in his report and set out in very clear terms the basis on which he had reached an initial decision to recommend that the Applicant should be dismissed from his post.

The Court noted that it could not be said that the Applicant had not been given the opportunity to comment on the O’Hare report prior to the initial decision. The court was satisfied that the CEO of the respondent afforded the applicant and his legal advisers all relevant opportunities to make representations as the process evolved.  He kept them informed of the steps that were being taken.  He extended time for them to make representations from time to time.  His correspondence was at all times appropriate and courteous.  His meeting with the applicant in September 2019, appears to have been conducted in a civil and appropriate manner.  There was no suggestion to the contrary in the affidavits sworn by the applicant. The court was satisfied that there was no evidence that in making the decisions that he did, the CEO was activated by bias against the applicant.

Accordingly, the court ruled in favour of the Respondent and refused to grant the reliefs sought by the Applicant.   
https://www.courts.ie/view/judgments/dbb89124-9aa4-4b97-8ce8-c1684bddb2ed/1ee7560f-2c95-47af-96ba-ff323b1e1508/2021_IEHC_282.pdf/pdf