Khan vs HSE
HIGH COURT
Judgment was delivered by Mr Justice McMahon on July 7th, 2008.
JUDGMENT
The HSE did not abide by fair procedures in placing a locum consultant psychiatrist on administrative leave while an inquiry was being carried out about his practice. Accordingly, that decision, and the decision that he not engage in clinical practice, are without legal effect until further order.
BACKGROUND
Dr Shafiq Khan, a native of Pakistan and an Irish citizen, is a member of the Royal College of Psychiatrists and has been working as a temporary locum consultant psychiatrist with the North Eastern area of the HSE since August 2005.
As such he was covered by the Consultants' Common Contract, which provides for a procedure for placing a consultant on administrative leave by the chief executive officer of the health board, where the conduct of the consultant poses "an immediate and serious" risk to the safety, health or welfare of patients or staff.
On January 4th, 2008, Dr Khan was placed on administrative leave, though no specific clause of the Consultants' Common Contract was invoked. The previous September an informal meeting had taken place between Dr Khan and the clinical director of the mental health services for the area, Dr Jackson, at which Dr Jackson expressed concern about aspects of his clinical practice. A further meeting took place in December in which the cases of four specific patients were discussed.
On December 11th Dr Jackson wrote a letter of complaint to the local area manager of the HSE, Anne-Marie Hoey. She wrote to Dr Khan advising him not to take up his clinical duties, but the letter did not reach him as he had left for holidays in Pakistan, and it was sent to the wrong address.
A meeting was arranged for January 4th, shortly after his return, which was attended by the plaintiff, Dr Khan, Donal Moore, a representative of the Irish Medical Organisation, Ms Hoey, her secretary Mr Tevlin, employee relations manager for the local area of the HSE and Dr Jackson, the complainant.
When Dr Khan and Mr Moore entered the meeting Ms Hoey, Mr Tevlin and Dr Jackson were seated on one side of the table with the secretary and they sat on the other. While Ms Hoey was the chairperson of the meeting, Dr Jackson led the meeting and it was her questions relating to six patients that controlled the dialogue. During an interval when Dr Khan and Mr Moore left the meeting the others, including Dr Jackson, remained.
Dr Khan complained that there was a clear breach of fair procedure in that the complainant, Dr Jackson, participated in the decisionmaking process, or at the very least would give a reasonable person the impression that she had done so. This complaint was never explicitly denied in the four affidavits sworn by Ms Hoey, who stated merely that she had made the decision.
"It was improper and a tainting of the process to allow Dr Jackson who was making the complaints to participate in the decision whether or not I should be placed on administrative leave. Dr Jackson was carrying out the role of witness, complainant, prosecutor and decisionmaker," Dr Khan said in his affidavit.
In March he asked the court for a declaration that the decision to place him on administrative leave was ultra vires, along with injunctions restraining the HSE from interfering with his position as locum consultant psychiatrist. These latter issues are to be tried later.
DECISION
Mr Justice McMahon first addressed the issue of fair procedures. "Whatever the HSE decides to do, it must comply with rules which adhere to fair procedure/standards . . . the battle between fair procedures and efficiency has long since been fought and fair procedures have won out.
"At the very minimum it means that the person at whom a charge is levelled has proper notice of the charge, that he has proper opportunity to take legal advice and prepare for hearing, that no one is to be a judge in their own cause, that both parties are given a full opportunity to be heard and that the judge is free from bias."
Applying this to the facts of this case, Mr Justice McMahon said: "The plaintiff has made a strong case to suggest that it is highly unlikely that some short discussion, however brief, did not take place between Dr Jackson, Mr Tevlin and the chairperson after the plaintiff had left the room."
Even if he were not prepared to reach that conclusion, he said the high standard set by Finlay CJ in O'Neill vs Beaumont Hospital Boardhad not been met in that a reasonable person in the plaintiff's position would reasonably think that some such discussion had taken place. Ms Hoey should have insisted that both sides leave the room at the same time, he said.
He considered that damages were not an appropriate remedy in this instance, as Dr Khan was still being paid. However, being placed on administrative leave was damaging to his reputation and standing in his profession.
Mr Justice McMahon considered whether he would be putting patients at risk by ruling that the administrative leave decision was ultra vires.
"This is not a case where, if reinstated, the plaintiff will immediately be in charge of ongoing surgical lists or will be exposed to the risk of the delivery room," he said.
"Moreover, in view of the concern now expressed over his prescription record, I expect the plaintiff will be much more careful and more conservative until the full investigation is complete.
"In these circumstances it is possible that the plaintiff might agree to alternative precautions being put in place on a voluntary basis, to give comfort to the defendant in the interim."
He also said that he expected Dr Jackson to approach the situation in a professional manner and with professional courtesies while the investigation, if there is one, proceeds.
He made orders that the decisions placing Dr Khan on administrative leave and directing him not to engage in clinical practice were without legal effect until further orders, and stressed the necessity for the case to proceed as quickly as possible.
The full text of this judgment is on www.courts.ie
Gerard Hogan SC and Patrick McCann BL, instructed by Michael Ryan, for the applicant; Martin Hayden SC and Marguerite Bolger BL, instructed by BCM Hanby Wallace, for the respondent.