The 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 Cavan General Hospital colorectal surgeon over an inquiry into allegations against him.
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 has heard. Later, an allegation was made about prescriptions to him that were allegedly signed by non-consultant hospital doctors reporting to him.
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 those under which 227 consultants are still employed, requires any finding of misconduct or a proposal to remove him to be made by the HSE’s chief executive.
The Court of Appeal last July said it was not appropriate to reach a conclusion on the extent to which it was permissible for the HSE CEO to delegate his fact-finding function in the inquiry to an independent investigator. This should be decided at a full hearing, rather than in an appeal of a pre-trial injunction application.
The HSE argued that the CEO was exercising his statutory discretion by establishing an investigation by an independent person. It claimed it was not practical for the CEO 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” at a full hearing of the case, 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. The full High Court hearing of his claims have not yet been heard or determined.
Refusing the HSE’s application, three Supreme Court judges said there is no reason why the full High Court hearing should not be heard in the near future. The judges said the HSE can fully ventilate its case at that trial, so it is 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, they said.
Mr Justice Peter Charleton, Mr Justice Maurice Collins and Ms Justice Aileen Donnelly said the appeal refusal relates only to the pre-trial judgments. The court will consider afresh any potential appeal application that follows on from the full hearing.
