Decision to hold inquiry on surgeon's removal overturned

The High Court has overturned a decision of the Minister for Health and Children in August 2003 to appoint a committee to inquire into the proposed removal of a consultant surgeon, Dr Pawan Rajpal, at Cavan General Hospital.

Mr Justice Kearns held that the chief executive of the North Eastern Health Board, Mr Paul Robinson, had not adhered to fair procedures when seeking the establishment of the committee. Mr Robinson had also misconstrued his functions under the Health Act 1970.

However, while finding that a decision to suspend Dr Rajpal at the same time in August 2003 was valid at that time, Mr Justice Kearns expressed concern that the suspension was continuing and there was no indication when the dispute between Dr Rajpal and another consultant surgeon at the Cavan hospital, Dr William Joyce, would be resolved.

The judge repeated his call to all sides to try and resolve matters without resorting to further litigation. Lawyers for all sides said they would make every effort possible and the judge adjourned the matter until May 17th. Mr Roddy Horan, for the hospital, also indicated the hospital still had the option of "going back to the drawing board" in relation to investigating complaints against Dr Rajpal.

Mr Justice Kearns yesterday delivered his reserved judgment on a challenge by Dr Rajpal to his suspension of August 2003 and to the procedures adopted by Mr Robinson when dealing with complaints by Dr Joyce against Dr Rajpal. Those procedures led to Mr Robinson asking the Minister to set up a committee to inquire into the proposed removal of Dr Rajpal.

The committee has not yet met to discuss Dr Rajpal's position. However, it is presently conducting a separate inquiry into the position of Dr Joyce, against whom complaints have been made by Dr Rajpal and others.

Both Dr Joyce and Dr Rajpal were suspended without pay by Mr Robinson last August arising from what the judge described as a "major interpersonal problem" between the two surgeons which had led, Mr Robinson told the High Court, to a firm of consultants stating there was a "dangerous situation" at the hospital.

Yesterday Mr Justice Kearns said the committee had not been established in accordance with the requirements of the Health Act. Nor had Mr Robinson complied with regulations dealing with the removal of doctors and other health board officers. In those circumstances, the committee had no proper jurisdictional basis for its work.

These were more than mere procedural shortcomings, he said.

There was not just a failure to comply with the Act but "the clearest possible breach of constitutional and natural justice" to propose the removal of a senior surgeon from office before any finding of misconduct has been made against him. A finding of misconduct must be made by a CEO before he could reasonably propose to remove a permanent officer of a health board. No such finding was made in the case.

The judge said he had "a great deal of sympathy" for Mr Robinson who was confronted with "two, if not three" different streams of dispute resolution.

Although Mr Robinson was certainly entitled at the outset to decide both doctors should be suspended, he had not initially taken that course. He had had the clinical complaints investigated and was able to discard those and was also able to discard complaints of unethical behaviour.

This left him with an amorphous bundle of complaints of misconduct raised by each doctor against the other. Having interviewed both, he had concluded the complaints were of "substance" and should be more fully investigated elsewhere.

It was at this point matters "effectively went off the rails", the judge said. Instead of making findings which would have enabled him to determine the appropriate sanction, Mr Robinson had "passed the chalice onward" - to a committee - without making any findings himself.

The fatal flaw in Mr Robinson's reasoning, or in the advice he received, was to think he had to apply in this case procedures laid down by the Supreme Court in another case, Traynor v Ryan, which was under the Common Contract only. However, the Rajpal case was under the Health Act 1970 and the statutory procedures were different.