Alleged breaches of private practice limits by consultants to be raised in court

The Government seems set to raise alleged breaches by hospital consultants of official private practice limits as part of its defence in landmark court challenges over pay being taken by hundreds of senior doctors.

The State is facing High Court actions from about 500 hospital consultants over the failure to pay them agreed levels of salary nearly a decade ago. The HSE has estimated that in a worst case scenario of losing the cases, the gross cost to the State ultimately could be up to €700 million.

Department of Health correspondence reveals the HSE has been giving "detailed examination and consideration" to adherence by doctors with contractual rules on private practice "in the context of preparation of the defence in the cases being taken by consultants seeking payment of increases specified in the consultant contract 2008".

The secretary general of the Department of Health Jim Breslin said in a letter drawn up in July that returns made to the HSE's national human resources director "in the context of the current process raise concerns that consultants may be exceeding their permitted level of private practice with the public hospital where they are employed, exceeding their off-site private practice rights or engaging in off-site private practice through holding a contract that does not permit any off-site private practice".

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Mr Breslin urged the HSE director general Tony O'Brien, in the letter, to take the necessary steps to ensure consultants were reminded of their contractual obligations and procedures were in place to ensure these were fulfilled.

“I also request that appropriate corrective action is taken to ensure that anyone considered to be non-compliant adjusts their practice to ensure they fully meet the requirements of their contracts in this regard.”

‘A farce in practice’

The 2008 agreement stipulated that private patients could make up no more than 20 or 30 per cent of cases treated by doctors in public hospitals. Other restrictions on private practice were also imposed under the deal based on the type of contract the doctor held.

However in an email in 2015 to Leo Varadkar, the then Minister for Health, Mr O'Brien said the percentage rule on private practice had become "a farce in practice" .

In return for major work practice changes and the restriction or elimination of private practice rights, the then government under the 2008 contract offered consultants salaries of between €170,000 and €240,000 per annum.

Pay rises were to be put in place to bring salaries up to the new levels on a phased basis.

The first payment was made, but not the second phase, following the collapse in the public finances. The State later cut consultants’ pay by 15-25 per cent.

Unlawful deduction

Nearly two years ago the Employment Appeals Tribunal found the non-payment of portions of the doctors' salaries amounted to an unlawful deduction under the Payment of Wages Act.

The tribunal awarded Dr Thomas Hogan, a former consultant anaesthetist at a number of Dublin hospitals, just under €100,000. A second consultant, Dr John McDermott, who worked as an endocrinologist at Blanchardstown hospital, was awarded €14,000.

The Government subsequently withdrew a planned appeal against these findings. But it insisted it would “vigorously defend” the various High Court cases being brought by doctors over the failure by the State to pay the agreed salary levels.

It is understood the forthcoming High Court cases centre on broader contractual issues than those addressed at the Employment Appeals Tribunal.