The High Court has ordered a temporary halt to the Health Service Executive’s (HSE’s) disciplinary investigation into allegations made against a colorectal surgeon at Cavan General hospital.
Ms Justice Emily Egan found Dr Pawan Rajpal raised a fair issue to be tried that the HSE’s chief executive unlawfully delegated a “crucial aspect” of his decision-making function in the inquiry to an independent investigator.
If the investigation is allowed to proceed as currently formulated, the potential legal error of the delegation will be “hard-wired into the process and could not be easily rectified”, she said.
The practicalities point to stopping the process for now and saving all concerned from engaging in what would end up being a “fruitless exercise” if Dr Rajpal ends up being correct after a substantive hearing of his court challenge to the process, she said.
Ms Justice Egan noted her order will restrain the investigation as currently convened but not the disciplinary process. Considering the balance of justice, she said the potential damage to the consultant’s reputation and livelihood outweighs the importance of progressing the disciplinary process in this way.
His court challenge to the inquiry should be fully determined before the investigation is allowed to proceed in its current form, she held.
Dr Rajpal has been working at the Cavan hospital for 25 years and also operates from Connolly Hospital in Blanchardstown.
The HSE’s investigation arose from a staff member’s complaint of assault to the hospital’s general manager against Dr Rajpal, said the judge. Later an allegation was made related to prescriptions to him that had allegedly been signed by non-consultant hospital doctors reporting to him and had allegedly inappropriately disclosed CCTV footage, she said.
Dr Rajpal strongly denies any wrongdoing and has objected to an “ongoing enrolling attempt to expand allegations”.
Ms Justice Egan said the HSE’s chief executive formally notified the consultant on October 21st, 2022, of the two allegations and confirmed he was concerned the doctor may have misconducted himself. Emphasising this was a concern only, the chief executive invited a response from Dr Rajpal.
The consultant issued judicial proceedings (separate to this court case) which led to the HSE admitting he was entitled to a declaration that his exclusion from the workplace between September 12th, 2022, and June 19th, 2023, was not per his contractual rights. The judge said that case is ongoing.
Ruling on his application seeking to halt the investigation pending his substantial challenge to the inquiry, Ms Justice Egan said a court should be reluctant to intervene in an incomplete disciplinary process, particularly at a pre-trial stage such as this.
She must determine whether he establishes he has a fair issue to be tried at the substantial hearing of his challenge to the process.
She said Dr Rajpal’s contract, under which 227 consultants are still employed, requires that any finding of misconduct or proposal to remove him can only be made by the CEO.
The HSE argued that in establishing an investigation by an independent person, the CEO is exercising a statutory discretion.
It submitted it is not practical for the CEO to personally inquire into and make findings of fact in every case containing allegations. It is the HSE’s practice instead to retain an appropriately qualified independent third party to investigate and present a report to the CEO who must then decide what, if any, action should be taken, the judge said.
The judge said she believes it is incumbent upon the CEO to make findings in respect of the key facts and to thereafter decide whether the facts as proven amount to misconduct.
This does not mean certain aspects of the allegations cannot be the subject of external examination. He would be entitled in appropriate cases to commission the assistance of independent medical experts or for an external examiner to ascertain certain basic facts, particularly those that are uncontentious or peripheral, she said.
Here, the independent investigator is charged with making findings on disputed issues of fact that are central to the decision of whether misconduct has occurred, she said, adding that Dr Rajpal, “not unreasonably”, submitted there will be nothing left for the CEO to decide.
The judge said a crucial aspect of the CEO’s decision-making function would be delegated to the investigator in this approach. This “potential legal error” is incapable of rectification later in the process, she said.
Naturally, she added, the doctor could not preclude the HSE from taking disciplinary action in compliance with his contract.
