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You are here: BAILII >> Databases >> Irish Court of Appeal >> A.B. v The Health Service Executive (Approved) [2025] IECA 48 (28 February 2025) URL: https://www.bailii.org/ie/cases/IECA/2025/2025IECA48.html Cite as: [2025] IECA 48 |
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THE COURT OF APPEAL - APPROVED
Court of Appeal Record No.: 2024/168
High Court Record No.: 2024/615P
Neutral Citation No.: [2025] IECA 48
Whelan J.
Binchy J.
Burns J.
BETWEEN/
A.B.
PLAINTIFF/
RESPONDENT
- AND -
THE HEALTH SERVICE EXECUTIVE
APPELLANT/
DEFENDANT
JUDGMENT of Mr. Justice Binchy delivered on the 28th day of February 2025
1. The plaintiff in these proceedings, who is the respondent (and cross-appellant) (hereafter the respondent) to this appeal, is a highly experienced consultant surgeon. Pursuant to a contract entered into with the North Eastern Health Board on 1st December 1998, the respondent was appointed to the position of Consultant General Surgeon working mainly at Hospital X, but with three sessions per week at Hospital Y, with effect from 1st March 1999 (the "Contract"). At Appendix IV of the Contract there is set out a disciplinary procedure, Clause 3 of which lies at the centre of these proceedings. It provides: -
"Where it appears to the Chief Executive Officer of a Health Board, the Chief Executive Officer, Secretary/Manager of a hospital or other health agency or his authorised representative, that by reason of the conduct of a consultant there may be an immediate and serious risk to the safety, health or welfare of patients or staff the consultant may apply for or may be required and shall, if so required, take immediate administrative leave with pay for such time as may reasonably be necessary for the completion of any investigation into the conduct of the consultant in accordance with the provisions hereof. This investigation should take place with all practicable speed. In taking such action the Chief Executive Officer of a Health Board, the Chief Executive Officer, Secretary/Manager of a hospital or other health agency or his authorised representative shall consult with the Chairman or Secretary of the Medical Board or equivalent structure."
2. The appellant was established by the Health Act, 2004 with effect from 1st January 2005, and it is accepted by the parties that the position of CEO of the appellant corresponds to that of Chief Executive of a Health Board, for present purposes at least. On 3rd January 2024, following an extensive engagement with the respondent, the current Chief Executive of the appellant namely Mr. Bernard Gloster, wrote to the respondent informing him of his (Mr. Gloster's) decision to place the respondent on administrative leave in accordance with the provisions of the Contract, pending an investigation (referred to in the proceedings as the "Mills 2" investigation) into certain matters that had been the subject of extensive correspondence and communications between Mr. Gloster and the respondent between 17th October 2023 and 3rd January 2024.
3. On 8th February 2024, the respondent issued these proceedings claiming, inter alia, declarations to the effect that the appellant had failed to observe the requirements of the Contract in respect of the decision to place the respondent on administrative leave, and that in doing so the appellant had acted irrationally and contrary to fair procedures. The respondent sought orders directing the appellant to restore the respondent to his full work duties, damages for breach of contract, negligence and misfeasance of public office as well as injunctive relief prohibiting the appellant from placing the respondent on administrative leave and requiring the appellant to take immediate steps so that the respondent does not become deskilled or subject to deskilling and to put in place a robust programme to ensure same.
4. Simultaneously, the respondent issued an ex parte docket and motion seeking liberty to issue a motion, returnable for 15th February 2024 (and if necessary an order abridging the time required for service) seeking orders by way of interim/interlocutory injunction prohibiting the appellant from placing or continuing to place the respondent on administrative leave and restoring him to his employment, as well as a further order by way of injunction restraining the appellant from taking any further steps in the Mills 2 investigation.
5. Following a hearing that took place over five days between 16th April 2024 and 29th April 2024, the High Court (Nolan J.) on 5th July 2024 ordered:
(1) That the appellant be prohibited from placing or continuing the place the respondent on administrative leave;
(2) That the appellant do restore the respondent to his employment save for any employment at Hospital X; and
(3) That the respondent recover his costs of the interlocutory motion from the appellant.
6. The High Court judge refused an application made by the appellant for a stay upon his orders. By notice of motion dated 9th July 2024, the appellant sought an order from this Court staying the orders made by Nolan J. pending the determination of the within appeal. Following a hearing before Costello J. (as she then was) the application for a stay was granted on 12th July 2024. This appeal came on for hearing on 9th October 2024.
Background
7. The background to these proceedings stretches back to May 2022. In his affidavit grounding his application for interlocutory relief, the respondent avers that up until early 2022 he had a very good working relationship with the RCSI Hospitals Group management, which is responsible for the management of the HSE hospitals in the locations of Hospitals X and Y.
8. The respondent avers that he was directed to attend a meeting on 20th May 2022 with Mr. Ian Carter (Chief Executive of the RCSI Hospital Group) and Professor Patrick Broe, Group Clinical Director of the RCSI Hospitals Group. At this meeting, the appellant avers, he was accused of mismanaging cases involving certain patients, and in particular two patients who have been referred to in these proceedings as A.D. and A.W. It is on account of the management and treatment accorded to these patients that Mr. Gloster ultimately placed the respondent on administrative leave for the purpose of further investigating and assessing his role in their care and treatment. Since those cases lie at the core of these proceedings, it is appropriate at this point to summarise them very briefly, while emphasising from the outset that the respondent vehemently denies any shortcomings in his treatment of these patients, for which he maintains others are responsible.
9. The case of A.W. involves a gentleman, then in his 60s, who came under the care of the respondent in December 2018, who performed a particular diagnostic procedure on the patient due to a family history of a particular type of cancer. The procedure revealed early signs of a particular condition but no gross pathology. A further diagnostic procedure was performed by the respondent in December 2020, following referral from the patient's GP, because the patient had been complaining of particular symptoms including constipation and diarrhoea. This procedure revealed certain conditions nut nothing especially serious. Random biopsies were obtained and A.W. was diagnosed with non-life threatening conditions, and was given prescriptions and referred back to his GP.
10. In 2021, A.W. continued to be symptomatic and having regard to his symptoms and his family history of cancer his GP sent four letters seeking urgent further assessment between April and June 2021. Eventually, in November 2021, a further procedure was performed, revealing that the patient had an invasive moderately differentiated adenocarcinoma, i.e. a cancerous tumour, as a result of which the patient was required to undergo a liver resection and to have chemotherapy. The principal issue of concern as regards the care afforded to this patient was the failure to identify the cancerous tumour in December 2020 and the consequences that this had for this patient. However, there were also significant concerns around the patient's treatment following diagnosis, which it is unnecessary to discuss here.
11. The case of A.D. involved a 73-year-old lady who was admitted to the emergency department of Hospital X at 19.48hrs on 18th April 2022. She was very unwell, and there was evidence of internal bleeding. An initial diagnosis, later confirmed, was of a perforated ulcer. The respondent was on call, but not in the hospital. However, a surgical registrar spoke with the respondent on the telephone at 22.30hrs approximately. Exactly what was said during this call is in dispute. The surgical registrar maintains that he spoke to the respondent who advised that in his opinion the patient had sepsis, and was therefore a medical and not a surgical admission, and therefore the attendance of the respondent was unnecessary. The respondent denies this and claims that he spoke with the registrar about other matters and was not made aware of the patient's presence in the emergency department until the following morning at 08.00hrs. Several members of staff reported trying, later on the night of the patient's' admission, but without success, to contact the respondent about A.D. The respondent denies receiving any missed calls or messages. There is further disagreement as to exactly what happened when the respondent attended the hospital the following day. Wherever the responsibility lay, the patient did not receive timely intervention, and by the time her condition was definitively diagnosed, following a CT scan, she was too unwell for surgery, and she died shortly thereafter.
12. The relevant background includes matters unrelated to the respondent's practice as a consultant surgeon. In August of 2022, the appellant received a complaint from a female staff member at Hospital X, who worked in the surgical department to which the respondent is attached, that she had been sexually assaulted by the respondent. The appellant was made aware that the complainant had also made a complaint to An Garda Síochána about the matter. The appellant denies the allegation, which subsequently resulted in a criminal charge, which is an issue of considerable relevance to the interlocutory application made by the appellant in these proceedings, and to which I shall return in due course.
13. Soon afterwards the appellant was made aware by Mr. Carter of another allegation regarding the conduct of the respondent. This was that the respondent had required non-consultant hospital doctors in the hospital to sign blank prescriptions in his name with the intent that the respondent would fill in the blanks, i.e. prescribe the relevant drugs for himself, but under the signature of another doctor. It was claimed that the respondent had prescribed 56 items for himself. If so, this would be contrary to the Guide to Professional Conduct and Ethics for Registered Medical Practitioners which states that doctors should not prescribe for themselves. The respondent has acknowledged that he asked for the assistance of the registrars in procuring prescription drugs for his parents, who live in another country and whom he alleges might otherwise have had difficulty in sourcing these drugs which they needed owing to health issues of their own.
14. A third allegation against the respondent, which is related to the sexual assault allegation followed several months later. This involved an allegation that the respondent had procured CCTV footage which he had shown to hospital staff in order to demonstrate his innocence of the sexual assault allegation.
15. In September of 2022, the General Manager of Hospital X, requested the then CEO of the appellant, Mr. Paul Reid to consider placing the respondent on administrative leave pending an internal investigation of the sexual assault allegation, but Mr. Reid declined to do so until such time as the respondent had been provided with details of the allegations against him, and afforded an opportunity to respond to them. However, the respondent was certified as being unfit for work by his GP for two weeks between 28th August 2022 and 11th September 2022. He claims that, following his return to work the General Manager refused to roster him for clinical duties, placing him, in effect on "unilateral enforced sick leave". As a result, in December 2022, the respondent issued judicial review proceedings, challenging (as the High Court judge in the judgment under appeal describes it) "the unlawful actions of [the appellant] in... imposing de facto administrative leave on him". These proceedings were compromised in June of the following year with the appellant conceding, by letter of 12th June 2023, that the respondent should be permitted to return to work "at the earliest opportunity". For a variety of reasons which it is unnecessary to explore here, but which the respondent would contend are as a result of the unlawful actions of the appellant, the respondent did not then return to work, and it was only following the issue of a motion to elaborate on the reliefs sought in the judicial review proceedings that the appellant agreed to permit the respondent to recommence work on 11th November 2023. However, in order to maintain his surgical skills the respondent had, in the meantime, obtained locum work at Hospital Z. This work continued until January 2024, save for a brief period between 12th December 2022 and 2nd February 2023 during which the respondent agreed not to perform clinical duties while matters were under discussion with the newly appointed CEO of the appellant, Mr. Stephen Mulvany.
16. At the end of January 2023, Mr. Mulvany wrote to the respondent informing him that he was of the view that an investigation into the sexual assault allegation and what he described as the "prescription issues" was warranted. He said that the issues were potentially serious and that he could not resolve them on the basis of the information that he had received from the complainants and the respondent's responses thereto. He informed the respondent of his intention to appoint a suitably qualified investigator to undertake the investigation, and said that he would be in further contact about this with the respondent very shortly. Ultimately, following further correspondence, by letter dated 2nd March 2023, Mr. Mulvany informed the respondent that he had instructed Mr. Simon Mills S.C. to conduct this investigation, and enclosed a copy of the terms of reference to Mr. Mills (this investigation is referred to in the proceedings as the "Mills 1 investigation" and for convenience I will also adopt that term).
17. On 23rd May 2023, the respondent issued further proceedings against the appellant seeking a wide range of reliefs including a declaration that the appointment of Mr. Mills for the purpose of conducting the Mills 1 investigation was unlawful, in breach of contract and in breach of the principles of natural and constitutional justice. He sought interlocutory relief restraining the progression of the Mills 1 investigation. Within the same proceedings, the respondent claimed that inquiries that had been commissioned by the appellant into the treatment provided to patients A.D. and A.W. had been conducted in breach of his contractual rights and in breach of his entitlement to natural and constitutional justice. These inquiries are known as systems analysis reviews, and are referred to by the acronym 'SAR' or SARs in the plural. As will become apparent, the SARs commissioned by the appellant into the care and treatment afforded to A.W. and A.D. feature prominently in these proceedings.
18. The appellant's application for an interlocutory injunction restraining the Mills 1 inquiry came on for hearing before Egan J., who delivered judgment on 1st February 2024, holding amongst other things that the respondent had established a fair issue to be tried as to whether or not the CEO of the appellant was entitled to delegate the matters that he did to Mr. Mills. Egan J. was also satisfied that the balance of justice favoured the grant of the interlocutory relief sought. The appellant appealed that decision to this Court, but that appeal was dismissed in a judgment handed down by Butler J. on 22nd July 2024. The appellant then sought leave to appeal that decision to the Supreme Court, but leave to do so was refused in a determination of the Supreme Court of 21st October 2024.
19. Following his appointment as Chief Executive of the appellant on 6th March 2023, these matters came to be addressed by Mr. Gloster in the following circumstances. On 25th August 2023, a Ms. Ledwidge Dunne, Group Director of Human Resources at RCSI Group, informed Mr. Gloster that the SAR reports concerning A.W. and A.D. had been concluded and would be made available to Mr. Gloster if he required. These reports had in fact been completed sometime previously, on 19th May 2023 in the case of A.D. and 29th June 2023 in the case of A.W., but it was not until 25th August 2023 that they were brought to Mr. Gloster's attention. Ms. Ledwidge Dunne also informed Mr. Gloster that Prof. Broe had referred the SAR reports to the Medical Council.
20. Having been so informed, Mr. Gloster requested and was provided with copies of the SAR reports. In his first affidavit sworn in these proceedings in reply to the grounding affidavit of the respondent, Mr. Gloster avers that he was concerned by the outcomes for patients A.D. and A.W., and that these concerns were heightened by the additional matters of concern which had been raised between August 2022 and February 2023, i.e. the matters the subject of the Mills 1 investigation. Mr. Gloster further avers that while he was still considering the SAR reports, he received, on 13th October 2023, an email from Mr. Carter, in which Mr. Carter informed Mr. Gloster that he was concerned about the findings in the SAR reports so far as concerned the conduct of the respondent. He also informed Mr. Gloster that two anonymous complaints had been received in relation to the professional conduct of the respondent generally, and that these had been sent to other personnel within the HSE. He provided Mr. Gloster with copies of the letters.
21. When Mr. Gloster had concluded his review of the SAR reports, and the anonymous letters, he wrote on 17th October 2023 to the solicitors acting on behalf of the respondent enclosing copies of both the reports and the anonymous letters. In this letter, Mr. Gloster expressed his concern in relation to both the SAR reports and the allegations set forth in the anonymous letters, and in doing so he invoked the wording of Clause 3 of Appendix IV of the Contract stating that: "By reason of [the respondent's] conduct there may be an immediate and serious risk to the safety, health or welfare of patients or staff", and he further stated that he would have to consider whether or not to invoke the contractual disciplinary procedure by placing the respondent on administrative leave. The letter continued as follows: -
"Before any decision is made on whether or not I should require you to take paid administrative leave:
(i) I will consider any representations that you wish to make.
(ii) The disciplinary procedure provides that I shall consult with the 'Chairman or the Secretary of the Medical Board or equivalent structure'. As you are aware, when the HSE was established in 2005 the roles of the Chairman and Secretary of the Medical Board became defunct. Therefore, if a decision in relation to administrative leave is required from me, I will consult with an individual in a role of equivalent structure, namely, [C.D.], Clinical Director of [Hospital X], before coming to a decision on whether or not to place you on paid administrative leave."
22. In the months that followed, the respondent and Mr. Gloster engaged in correspondence and meetings during the course of which Mr. Gloster afforded the respondent the opportunity to make representations in relation to all of Mr. Gloster's concerns. I should say at this point that the respondent repeatedly asserted throughout this correspondence that he did not know what these specific concerns were, and he repeatedly asked for particulars of the same, and he was repeatedly referred to the contents of the SAR reports. On 6th November 2023, the respondent provided the appellant with three large folders of documents in which he addressed Mr. Gloster's concerns. There then followed a meeting between the respondent and Mr. Gloster on 9th November 2023. A further meeting took place on 22nd November 2023 during the course of which the respondent made further submissions and provided further materials to Mr. Gloster. At these meetings the respondent was accompanied by Mr. Donal Duffy, retired assistant Secretary General of the Irish Hospital Consultants Association, who also made representations on behalf of the respondent.
23. In the course of his submissions, the respondent provided a detailed response to the matters raised by the SAR reports. It should be noted that the respondent did not co-operate with the A.D. review for a period of four months because, he maintains, it was not until then that he was provided with sufficient details of the matters of concern. The respondent refused to co-operate at any time with the A.W. review. In his submissions to Mr. Gloster, the respondent maintained that the SAR report concerning A.D. was inconsistent with a letter he had received from Mr. Kevin O'Malley, which the respondent maintained had vindicated his conduct in the treatment afforded to A.D. As regards the A.W. SAR report, the respondent was highly critical of it and submitted it was flawed in several respects. As a result of these submissions, Mr. Gloster conferred with the chairpersons of both the A.D. SAR group and the A.W. SAR group, namely Mr. O'Malley and Professor Deborah McNamara respectively, each of whom stood over the contents and conclusions of the SAR reports.
24. At the meeting of 22nd November 2023, there was also a discussion as to whom Mr. Gloster should consult with (as required by Clause 3, Appendix IV of the Contract) before taking any decision whether nor not to place the respondent on administrative leave. The respondent objected to Mr. Gloster consulting with both Prof. Broe and Dr. C.D. on the basis that they were both complainants against him. Mr. Gloster asked whether there was anyone with whom the respondent considered Mr. Gloster should consult, and the respondent said he would not tell Mr. Gloster how to do his job. Mr. Duffy said that the provision for consultation with the Chairman or Secretary of the Medical Board was a safeguard for consultants which could not be ignored. Those positions, he said are independent of the appellant, whereas clinical directors who are paid by the appellant are not independent, and are therefore unsuitable for consultation with the CEO of the appellant under Clause 3, Appendix IV of the Contract.
25. The respondent made further submissions by letter of 29th November 2023, which were considered by Mr. Gloster, and to which he replied by letter of 7th December 2023. Before that, on 4th December 2023, Mr. Gloster had had a 'virtual' meeting with Prof. Broe. This was by way of consultation for the purposes of Clause 3 of Appendix IV of the Contract, even though Mr. Gloster had previously indicated an intention to consult with Dr. C.D. for this purpose. Mr. Gloster sent minutes of this meeting to the respondent for his observations with his letter to the respondent of 7th December 2023. The respondent wrote further letters to Mr. Gloster on 8th December 2023 and 14th December 2023. In his letter of 8th December, the respondent again requested Mr. Gloster to set out his specific concerns regarding the care the respondent had provided to patients A.D. and A.W. In his letter of 14th December 2023, the respondent queried how, at the remove of several years from the events the subject of the SAR reports, he could be considered to be a serious risk to the safety, health and welfare of patients. He also expressed concern about the overlap with the s. 60 application brought by the Medical Council, and he replied in detail to the issues raised by the minute of Mr. Gloster's meeting with Prof. Broe.
26. On 11th December 2023, Mr. Gloster wrote to the respondent through his solicitors (as requested by the respondent) informing them, amongst other things, that the findings of the SAR reports and the details contained in the SAR reports constituted the concerns that he, Mr. Gloster had, regarding the conduct of the respondent as a consultant. He stated: -
"The concerns in both systems analysis reports combined include, but are not limited to, concerns in relation to your conduct in relation to the issue of acceptance of patients, diagnosis, responsiveness on call, responsiveness to emerging critical information, recording accuracy of procedures, lack of attention, lack of reasonable care and failure to comply with hospital policy."
27. Mr. Gloster went on to say in this letter that he was concerned at the nature of the respondent's engagement with the systems analysis process, which he said: "may be an attempt to frustrate reasonable examination of patient safety matters essential to the safe and effective governance of the health service". He made it clear that what was underway at that point in time was not an investigation into the matters of concern, and that an investigation would have to take place into those matters. He expressed his intention to appoint an investigator into all matters of concern within a matter of days.
28. Mr. Gloster also said in this letter that his predecessor, Mr. Mulvany, had made a decision regarding the respondent's status at work (i.e., not to place the respondent on administrative leave), pending the Mills 1 investigation, that was based on the respondent's "assertion" that he was not "patient facing" at the time. While noting that the respondent disputed this understanding, Mr. Gloster expressed concern as to the risk to the public and staff pending the outcome of those investigations. He noted that at their second meeting, on 22nd November 2023, the respondent had refused to accept a copy of a letter previously sent by Mr. Mulvany to the respondent, when he (Mr. Gloster) advised the respondent that he was taking "these matters" into account.
29. A third (and final) meeting occurred on 18th December 2023. The respondent was again accompanied by Mr. Duffy who made detailed submissions on behalf of the respondent and expressed the view that there was no basis upon which the respondent should be placed on administrative leave. It appears there were no further meetings or communications of any significance prior to Mr. Gloster taking the decision to place the appellant on administrative leave on 3rd January 2024.
30. There was, however, one further development of significance prior to Mr. Gloster's decision. That is that on the 2nd January 2024 the respondent was charged with the offence of sexual assault of a staff member at Hospital X. The respondent appeared before the District Court on that day, when he indicated his intention to plead not guilty and bail conditions were fixed by that Court. Those conditions were that the respondent: -
(1) Shall have no contact in any way whatsoever, directly or indirectly, with the alleged injured party or any witnesses to the subject matter of the proceedings; and
(2) Should surrender his passport and undertake not to apply for a new or duplicate passport or for any other travel documentation.
31. These matters have a particular relevance to the interlocutory reliefs sought by the respondent, because he did not inform the appellant about them at the time and nor did he mention them in his affidavit, sworn five weeks later, grounding his application for interlocutory reliefs. The appellant was only made aware of these matters following inquiries being made by the appellant's solicitors in correspondence exchanged between 20th February and 11th March 2024. The failure to disclose these developments in his grounding affidavit was relied upon (together with another matter which I mention below) in the High Court to resist the application for injunctive reliefs on the ground that the respondent had not come to the Court with clean hands.
32. On 3rd January 2024, in a long and detailed letter, Mr. Gloster wrote to the respondent informing him that he was placing him on administrative leave. He referred to all of the correspondence he had exchanged with the respondent, to all of their meetings, to all of the submissions and information provided by the respondent and to the respondent's engagements with Mr. Mulvany in 2022 and 2023. He said that he had carefully considered all of the submissions made by the respondent, including those made on his behalf, presumably referring to submissions made by Mr. Duffy.
33. Mr. Gloster referred to his letter of 17th October 2023 to the respondent whereby he had enclosed both SAR reports, and the anonymous letters, and whereby he had invited the submissions of the respondent to the same. He referred to the discussions that he had had with Prof. Broe, Mr. O'Malley and Prof. McNamara. Having referred to these and other matters, Mr. Gloster then set out his decision regarding the establishment of an investigation in the following terms: -
"I have not taken account of the two anonymous letters referred to in my letter of the 17th October 2023 in reaching this decision. I am writing to inform you that I have decided that the matters of concern arising from your treatment of patients AD and AW warrant further investigation in accordance with the provisions of your contract. Following my consideration of the SAR reports in relation to AD and AW, the information which I have gathered, as well as your responses and submissions, I have decided that an investigation of all matters should be carried out in accordance with the terms of your contract. I am satisfied you are in possession of the material relevant to my considerations.
I enclose herewith a copy of the proposed terms of reference for that investigation which I will provide to the investigator and I propose that Mr. Simon Mills SC shall act as the investigator of these complaints - in addition to the matters referred to him for investigation as notified to you by the letter of the 24th February 2023.
I must inform you that having considered all of the information presented to me in respect of the SAR Reports in relating patients AD and AW and the matters referred to Mr. Simon Mills SC for investigation and notified to you by letter from Stephen Mulvany, interim CEO, of the 2nd March 2023 (together with enclosures) that it appears to me by reason of your alleged conduct there may be an immediate and serious risk to the safety, health or welfare of patients or staff such that I believe it is appropriate that you are placed on immediate administrative leave with pay until these concerns are investigated."
34. Mr. Gloster then proceeded to provide specific details of his concerns about the respondent's alleged conduct in the treatment and care of patients A.D. and A.W. There are 20 specific matters of concern referred to relating to patient A.W., and eight specific matters relating to patient A.D.
35. In the course of the letter, Mr. Gloster rejected a submission that had been made by the respondent that it was not open to Mr. Gloster to place the respondent on administrative leave because Mr. Mulvany had decided not to do so in respect of the same matters. Mr. Gloster said he did not accept that submission because it was clear to him, from a letter sent by Mr. Mulvany to the respondent on 24th February 2023, that Mr. Mulvany had decided not to place the respondent on administrative leave at the time because the respondent had given a commitment to continue, on a voluntary basis, not to engage in clinical duties.
36. On 8th February 2024, the respondent moved an application for short service of proceedings before the High Court (Mulcahy J.) without having made any reference in his grounding affidavit sworn on 6th February 2024 to the fact that a criminal charge had been advanced against him on 2nd January 2024. Needless to say it followed that the appellant also made no reference to the bail conditions that been fixed by the District Court. In any case, proceedings were issued and served on 8th February 2024. I have already summarised above, at para. two, the reliefs claimed by the respondent in the proceedings.
Judgment of the High Court
37. At para. 18 of his judgment of 18th June 2024, the High Court judge stated: -
"It is fair to say that a significant part of the hearing was spent trying to ascertain what was meant by 'the chairman or secretary of the medical board or equivalent structure', and whether that person should be in some way 'representative' of the Plaintiff, similar to a trade union representative or not. Alternatively, whether that person should act in an independent unbiased manner. Again, there was no agreement on this crucial issue and it will be a matter for this court to decide. It seems to me that in a nutshell that is what this case is about."
38. At para. 44, the High Court judge noted that the since the parties have agreed to adjourn that part of the case relating to the delegation of functions to Mr. Mills (having regard to the fact that at that time, the decision of Egan J. was still under appeal to this Court) the issues remaining before the High Court related to the interpretation of Appendix IV, the steps taken by Mr. Gloster prior to coming to a decision to invoke para. three of Appendix IV, and "crucially" the engagement of Mr. Gloster with Prof. Broe.
39. Additionally, the judge said, the court had to consider the implications of the bail conditions imposed upon the respondent. The judge said that the bail conditions are important for two reasons: firstly, the respondent made the case that the nature of the order directing administrative leave meant that he could not practice outside the jurisdiction. However, given the bail conditions (in particular the condition requiring the respondent to surrender his passport) that was not possible anyway. The second reason, which the judge said is in many ways more important, is that the respondent was obliged to come to court with clean hands, and that in failing to do so by not disclosing matters which were not in his favour, the appellant contended that the respondent should not be granted the reliefs which he seeks.
Threshold Applicable to the Application of a Strong Case
40. Having summarised the background to the proceedings, and the issues raised by the proceedings, the judge proceeded to consider authorities relevant to disciplinary processes. He noted that in Minnock v. Irish Casing Company Ltd and Stewart [2007] 18 ELR 229, it was held that the court will not intervene in a disciplinary process unless a clear case has been made out that there is a serious risk that the process is sufficiently flawed and incapable of being cured, and that it might cause irreparable harm to the plaintiff if the process is permitted to continue.
41. The judge cited the following passage from Rowland v. An Post [2017] 1 I.R. 355 in which Clarke J. (as he then was) held: -
"However, the practical consideration which leans against a court interfering with an ongoing process may point in the opposite direction in a limited number of cases where the conduct of the process, up to the point when the court is asked to review it, is such that it is clear that the process has gone irremediably wrong."
42. The judge noted that the respondent seeks a form of mandatory order prohibiting the appellant from continuing him on administrative leave and restoring him to his employment, and that the respondent acknowledged that in order to obtain such an order he must make out a strong case.
Objective Bias, Breach of Contract and the taking Account of "Extraneous Matters"
43. The judge noted, at para. 53 that, while it is accepted that Prof. Broe was not the decision-maker, he played a vital part in the decision-making process, and the respondent had argued that by consulting with Prof. Broe, Mr. Gloster had acted in breach of contract. This was so, it was said, because he was "objectively biased". Here the judge recites the dicta of Fennelly J. in O'Callaghan v. Mahon [2008] 2 IR 514, where he stated: -
"objective bias is established if a reasonable and fair-minded objective observer, who is not unduly sensitive, but who is in possession of all the relevant facts, reasonably apprehends that there is a risk that the decision maker will not be fair and impartial".
44. The judge considered the decision of the UK Supreme Court (Lady Hale) in Braganza v. BP Shipping Limited [2015] UKSC 17 and the more recent decision of the Supreme Court in the case of O'Sullivan v. HSE [2023] IESC 11, which approved and adopted the principles and criteria enunciated by Lady Hale in Braganza. In O'Sullivan, the Supreme Court was called upon to consider the same contractual provisions as arise for consideration in these proceedings. At para. 60 of his judgment, the High Court judge cited the following passage from the decision of Dunne J. in O'Sullivan, in considering the obligations of an employer to act lawfully in placing an employee on administrative leave: -
"Here there is no dispute but that, in general, an employer contemplating a step such as placing someone on administrative leave should inform the employee of the reason for that decision and give them an opportunity to respond. Nevertheless, as mentioned previously, placing someone on administrative leave, as in this case, may be for the purpose of conducting an investigation, and not for the purpose of making a final decision as to wrongdoing or culpability. Thus, where it is clear that a decision to place someone on administrative leave is being contemplated, that person should be so informed and should be afforded the opportunity to make representations as to why that should not occur. That is no more than fairness requires. That does not mean that the "full panoply" of fair procedures, as Noonan J. said in Bank of Ireland v. Reilly, but it is a basic level of fairness that is required."
45. The judge also cited the following passage from the decision of O'Donnell C.J. in O'Sullivan in which the Chief Justice gave consideration to the implications of placing individuals on administrative leave: -
"Nevertheless, it is the case that it is a decision which has an impact on an individual, may affect their reputation and where that person is engaged in a highly skilled occupation, may have the effect of making it more difficult for them to resume their occupation, even if the disciplinary proceedings do not result in their dismissal if the length of time is such that a person becomes deskilled. It is clear, therefore, that the suspension decision does require fair procedures."
46. The High Court judge then further quoted from the judgment of Dunne J. who held at para. 87 of her judgment: -
"Thus, one can see that in considering the decision of the CEO in a case such as this where a discretion is to be exercised, that discretion should be exercised in a manner that first of all is carried out in good faith, the decision should also be one which is neither arbitrary, capricious, or irrational, and further, as was stated in Braganza, it follows that such a decision could be impugned, not only where it was one that no reasonable decision-maker could have reached, but also where the decision-making process had failed to exclude extraneous considerations, or to take an account of all obviously relevant ones."
47. The High Court judge had regard to the concerns expressed by the respondent that his ability to earn a livelihood could be significantly affected by being placed on administrative leave, because of the impact that this would have on his skill set. The judge stated that while the respondent had raised these concerns with the appellant in correspondence, no appropriate response was received.
48. The judge also considered and rejected an argument that Mr. Gloster should not have reviewed the two cases of A.W. and A.D. because they had previously been considered by Mr. Mulvaney and, to an extent, Mr. Reid, principally because the SAR reports had only become available following Mr. Gloster's appointment.
49. The judge then considered whether or not it was appropriate for Mr. Gloster to consult with Prof. Broe for the purpose of compliance Clause 3 of Appendix IV of the Contract, since the position of Chairman of the Medical Board no longer exists. In this regard, the judge noted that the parties were not agreed as to what it meant by the term "representative" as used in Appendix IV. In this context, the judge had regard to a decision of Costello J. (as she then was) in the High Court in Buckley v. HSE (Unreported, High Court, Costello J., 5th November, 2018). In Buckley, Mr. O'Brien, a former CEO of the appellant, had started the consultation process afresh upon becoming aware that the Chairman of the Medical Board with whom he had already consulted was also a complainant. The judge expressed the view that for this reason Buckley gives credence to an argument put forward by the respondent that the person to be consulted under Clause 3 of Appendix IV should have "some form of independence" and who is, in the sense of the Braganza test, acting honestly and in good faith and who would, as Dunne J. said in O'Sullivan "exclude extraneous considerations, [and] ...take account of all obviously relevant ones". The judge concluded that a person who is to be a "representative" for the purposes of Clause 3, part IV of the Contract, should: -
"...be somebody who has the requisite technical skills, and is an independent (sic) to the extent that any reasonable person looking from the outside would consider suitable, knowing what they should know. Someone who does not have an interest in the decision...."
50. The judge noted that when he consulted with Prof. Broe, Mr. Gloster was aware that Prof. Broe had made two complaints about the conduct of the respondent to the Medical Council. He also knew that Prof. Broe had made these complaints within a matter of days of the appellant conceding the judicial review proceedings. The judge noted that the respondent had, at their second meeting on 22nd November 2023, expressed a concern that Mr. Gloster should not consult with either Prof. Broe, or Dr. C.D. Furthermore, the judge observed that Prof. Broe brought to the attention of Mr. Gloster other matters which were extraneous. The judge instanced examples of these matters at para. 38 of the judgment as follows: -
"Prof. Broe did not hold back. He said he was very familiar with the SAR reports, and believed the Plaintiff presented an immediate and serious risk to patient safety and that he had concerns which were allied to other episodes of patient care about which he had further concerns. He had reviewed notes of the case in respect of a protected disclosure. He said that the culture of surgical practice in [Hospital X] led by the Plaintiff was not to accept any cases under surgery unless there was an absolute clear need for emergency surgery but rather to have them categorised or admitted as medical case (sic). He supported the views of Registrar B, who he described as having a very good reputation, notwithstanding he had been suspended from practicing medicine since July of 2023 and had fled the country after a road traffic accident when he was found to have had cocaine in his system. In fact, what information was passed on turned out not to be correct. He criticised the Plaintiff for alleging that the registrar was addicted to cannabis. He further criticized the Plaintiff saying that performing [procedures]at speed carried risks of missing issues of concern and that the Plaintiff's attention to detail had lapsed. His focus was on numbers not on empathy for patients. He denied that a breakdown in their professional relationship had led to the selection of cases for audit. He said that a serious incident management forum in [Hospital X] identified the cases of concern and he became aware of these and other cases including a private patient of the Plaintiff on whom he performed a [procedure]. He believed he was increasingly careless and more arrogant. Prof. Broe openly stated that he had reported the matter to the Medical Council. Finally, he said that during the nine-month period where the Plaintiff was not working the atmosphere at the hospital completely transformed. Much of this information was extraneous to the matters at issue."
51. The judge reached his conclusion on this issue at paras. 85-86 as follows: -
"85. Bearing in mind that the decision maker becomes the court itself, as noted in Braganza, it seems to me that any independent person with knowledge viewing the circumstances of this case would conclude that Prof. Broe was objectively biased. On that basis, his bias has tainted the decision making of Mr. Gloster.
86. While I appreciate Mr. Gloster attempted to act in good faith, and indeed at times went out of his way to ensure that fair procedures were adopted, but the moment he engaged with Prof Broe, he made a fatal mistake. That fatal mistake cannot be remedied. It is, to use the phraseology of the case law, "irredeemably" tainted (Minnock and Rowland). I am fully aware that a final decision has not been made, and that the CEO will await the outcome of the investigation, but the case law is clear that putting somebody on administrative leave is in itself a sanction and therefore fair procedures apply. This does not mean that the full panoply of legal procedures requires to be undertaken, as referred to in O'Sullivan, but simply that basic procedures of fairness are taken into consideration. It was unfair of Mr. Gloster to contact Prof. Broe. He knew precisely what his views were and he must have known that he was only going to get one side, and that is what he got. In my view there has been a breach of the equitable maxim of Audi alteram partem."
52. For these reasons, the High Court judge concluded that the respondent had made out a serious case to be heard, and he further concluded that the procedure was incapable of being remedied by further steps. The damage, he said, has already been done.
Balance of Convenience
53. Having regard to the judgment of the Supreme Court in Merck Sharp and Dohme Corporation v. Clonmel Healthcare Limited [2019] IESC 65, [2019] 2 IR 1, the judge then proceeded to consider the balance of convenience/balance of justice, noting that the adequacy of damages is an important but not necessarily a determinative element in the consideration of this issue.
54. The judge observed that this case is complicated by the fact that part of the original action has been put on hold pending the determination of this Court in the appeal from the decision of Egan J. As a result, he observed, that part of that case remains subject to a stay.
55. The High Court judge concluded that the balance of justice rested with the respondent for the following reason: -
"If he is deprived of his ability to ensure his skills sets are not lost, then in the event of him being successful at a hearing, it is perfectly possible and indeed probable, given the animosity between the parties, that the Defendant would say his skills are not of the requisite standard to continue to act as a surgeon. The Defendant was given the opportunity to give assurances on this point but declined to do so. Therefore, the court can infer that this is a likely prospect."
56. That is as much as the High Court judge had to say about the balance of convenience. There is no corresponding analysis as to the interests of the appellant or, in particular, members of the public whose interests in this context are represented by the appellant.
57. The judge proceeded to consider the question as to whether damages could be an adequate remedy, and held that since the respondent's reputation as a consultant surgeon is at stake, if an injunction is not granted, and the matter proceeds to a full hearing, it would be impossible to calculate damages in the event that the respondent is successful. The judge agreed with an opinion expressed by Mr. Duffy that the imposition of administrative leave would be the end of the respondent's professional life as a surgeon.
Clean Hands
58. The judge then proceeded to consider the argument advanced by the appellant that the respondent had not come to court with clean hands, firstly in failing to disclose that he had been charged with a criminal offence and in failing to state openly his bail conditions, and secondly that, in his affidavit of 6th March 2024 (sworn in reply to Mr. Gloster's replying affidavit, and also in reply to a replying affidavit of Mr. Brian Murphy, the appellant's head of Corporate Affairs) he had misleadingly omitted text when quoting an extract of the transcript of his meeting with Mr. Gloster of 22nd November 2023. In addressing this issue, the judge referred to the judgment of Murray J. in this Court in Egan and Barron v. Heatley [2020] IECA 354 and specifically para. 74 therefor wherein Murray J. held: -
"The application of the principle [that he who comes to equity must come with clean hands] to any particular case is, clearly, highly fact sensitive. The maxim will not apply where the irregularity alleged to give rise to its application is trivial. Nor will it operate unless there is an immediate and necessary relationship between the conduct in question, and the equity sued for."
59. At para. 69, the judge expressed the view that, while there is an element of truth in "this" (he did not distinguish between the two bases upon which the appellant advanced this argument), he was not certain that there was an immediate and necessary relationship between the conduct in question and the equity sued for, as per the dicta of Murray J.in Egan and Barron v. Heatley. However, he expressed the view that there was a way of ensuring justice between the parties on the issue, to which he returned at the concluding section of his judgment, at paras. 97-100.
60. The judge noted, at para. 99 that the respondent seeks a mandatory order, entitling him to go back to work to Hospital X. He further noted that, if granted, this would involve the hospital in having to engage in "some form of musical chairs" so as to ensure that the respondent was not rostered at the same time as the complainant in the sexual assault allegation, resulting in a breach of the respondent's bail conditions. The judge concluded on this issue that such an order could have very serious detrimental impact upon the criminal trial and, to show his "unhappiness" with the respondent's lack of candour, he declined to make that order.
61. However, the High Court judge noted, in the last paragraph of his judgment, the respondent has worked in other hospitals. He therefore thought that the appropriate order to make was one that would allow the respondent to continue the type of work that he had been doing in Hospital Z, or in other hospitals, if such work is available. This, the judge said, would ensure that the respondent's skills sets are maintained pending the trial of the action, and in order to facilitate this, the judge said that he would make an order allowing the respondent access to the [State's] Clinical Indemnity Scheme. The judge said that in making orders of this kind, he would ensure that the respondent could return to work, but without interfering in any way with the criminal trial, or imposing an impermissible burden upon the appellant. He stated: -
"The Plaintiff will be able to work but not in any of the hospitals of the Defendant".
That is the extent of the judge's treatment of the appellant's objection under this heading. Having mentioned the appellant's claim that the respondent had selectively quoted an extract from the transcript of the meeting of 22nd November 2023, he did not return to the issue.
Supplement Judgment of High Court of 5th July 2024
62. The last-mentioned order, entitling the respondent to work, but "not in any of the hospitals of the [appellant]" gave rise to differences of interpretation by the parties, and they returned to the High Court, on 5th July 2024, before the order was drawn up and perfected, in order to clarify precisely what it was the High Court judge intended in making this order. This arose in circumstances in which there had been significant publicity following the publication of the judgment of the High Court, as a result of which, the respondent maintained, he was having difficulty in getting any form of employment in private practice following the judgment of the High Court.
63. Having heard submissions from the parties, the judge held that it was clear from his judgment, and specifically the last paragraph thereof, that he was declining to make an order requiring the appellant to allow the respondent to resume work at Hospital X but not in any other hospitals of the appellant. Insofar as the appellant had interpreted that as meaning that the respondent could not work other than in private practice, the judge clarified that that was not his intention, and the judge held that the justice of the case would be met by making an order that the respondent be allowed to return to work in any other hospital operated by the appellant other than Hospital X.
64. The judge then proceeded to address a submission that had been made on behalf of the appellant that this might cause difficulties because the appellant could not direct the admission of the respondent to the Clinical Indemnity Scheme. The judge expressed surprise at this because, he said, Mr. Gloster had no difficulty in removing the respondent from the Scheme. In conclusion, therefore, the judge said that he would made an order directing that the respondent be returned to work with the appellant in any other hospital in its control other than Hospital X. That order is reflected in the order as perfected on 9th July 2024.
65. The judge also ordered that the respondent should recover from the appellant his costs incurred in his application for interlocutory relief, and refused an application for a stay on the interlocutory orders, including his order as to costs. However, as previously mentioned, the orders made by the High Court judge were stayed following a hearing before Costello J. (as she then was) on 12th July 2024.
Notice of Appeal
66. In his notice of appeal of 9th July 2024, the appellant sets out no less than 37 grounds of appeal. However, in its submissions to this Court, the appellant focuses on what it describes as four significant errors of principle on the part of the High Court judge, those being:
(1) That the High Court judge erred in his approach to an application for an interlocutory injunction seeking to restrain the appellant's decision to place the respondent on administrative leave, having regard to the principles established in the decision of the Supreme Court in O'Sullivan v. HSE [2023] IESC 11. Under the umbrella of this argument the appellant also addressed an argument that the High Court judge erred in holding that Prof. Broe was not an appropriate person to consult with having regard to the provisions of the Contract and because he was objectively biased;
(2) That the High Court judge erred in holding that the respondent had established a strong case that the appellant had acted unlawfully and was bound to succeed at trial;
(3) That the High Court judge erred in his assessment of the balance of convenience in failing to have regard to the central issue of patient safety;
(4) That the High Court judge erred in granting the respondent the reliefs he sought notwithstanding that he did not come to the court with clean hands.
Respondent's Cross-Appeal
67. The respondent cross-appeals from the decision of the High Court judge on five grounds which may be summarised as follows:
(2) The High Court judge erred in failing to find that insofar as Mr. Gloster relied on matters previously considered by Mr. Mulvany, he failed to provide adequate notification of this to the respondent and failed to afford him an adequate opportunity to provide submissions in regard to the same;
(4) The High Court judge erred in failing to find that the reasons provided by Mr. Gloster were inadequate and lacking in specificity;
(5) The High Court judge erred in failing to find that the SAR reports did not provide a reasonable basis for the view taken by Mr. Gloster that the respondent posed a risk to patient or staff safety, health or welfare.
68. There was not a great deal of attention paid to these grounds of cross-appeal at the appeal hearing. In any case however, I will address them immediately following my conclusions on the appellant's grounds of appeal.
Submissions
Failure to comply with principles laid down in O'Sullivan v. HSE
The judge erred in his approach to bias and to contractual obligations
Submissions of Appellant
69. The appellant argued that the High Court judge erred in concluding that the moment that Mr. Gloster engaged with Prof. Broe, he made a fatal mistake and in further concluding that that fatal mistake cannot be remedied. The appellant submits that the question that the High Court judge should have addressed his mind to is whether or not the decision to place the respondent on administrative leave was one that no reasonable CEO could make, as per the test in Braganza, as approved and adopted by the Supreme Court in O'Sullivan v. HSE. While the judge did, at para. 63, correctly identify the question to be addressed, he thereafter erred by focusing on the appropriateness of Mr. Gloster's decision to consult with Prof. Broe.
70. The appellant further submits that the High Court judge failed to apply, to the decision of Mr. Gloster, the test of "honesty, good faith, and genuineness, and the need for the absence of arbitrariness, capriciousness, perversity and irrationality". Instead, the trial judge had asked himself whether or not Prof. Broe was an appropriate person for Mr. Gloster to consult, and whether or not Prof. Broe was biased. This, the appellant submits, is contrary to the guidance given by the Supreme Court in O'Sullivan v. HSE. In O'Sullivan, allegations had been made of unfairness in opinions provided to the CEO by third parties, and in this regard O'Donnell C.J. said, at para. 37 of his judgment: -
"...this appears to involve engaging with the detail of the case, and coming to conclusions on the merits, on the basis moreover, of untested affidavit evidence, which approach is not mandated, or arguably even permitted by the applicable test."
71. The appellant submitted that it is apparent from the judgment of the Chief Justice in O'Sullivan that the Braganza test is to be applied to the decision of the decision-maker i.e., in this case Mr. Gloster. In O'Sullivan, the CEO had consulted, not just with the Chairman of the Medical Board (a position that did exist in that case) but also with a range of other medical professionals and the Chief Justice had the following to say in this regard: -
"If accordingly, the CEO having received the views of Professor Day, Dr McKenna and Dr Henry, had real concerns about the approach of Professor O'Sullivan to his work as it is clear he did, then in my view, he was entitled to consider that this posed a risk to the health, safety and welfare of patients, having regard to the detail of the incident, the findings of the reports and the applicant's response and behaviour and such a conclusion could not be considered irrational, arbitrary or capricious."
72. The appellant also relies upon para. 114 of the judgment of Dunne J. in O'Sullivan wherein she stated: -
"The key test is whether or not it "appears" to the CEO that there "may" be an immediate and serious risk to the safety, health or welfare of patients. At the time of the letter to Professor O'Sullivan on the 6th August, 2019, there was a wealth of information available to the CEO from which it was possible for him to reach the conclusion that there may have been an immediate and serious risk to the safety, health and welfare of patients at that time."
73. In this case, the appellant submits that there was also a wealth of information available to Mr. Gloster at the time that he made the decision to place the respondent on administrative leave. He had the benefit, not only of the SAR reports, but also of having consulted with the Chairs of the SARs, as well as the representations and information provided by the respondent himself.
74. As to the argument that Mr. Gloster should have consulted with somebody other than Prof. Broe, as a matter of contract, the appellant submits that Prof. Broe, as the Clinical Director of the RCSI Hospital Group was an appropriate person with whom to consult, in the absence of there being any Medical Board or Chairman or Secretary of same with whom to consult. The appellant submits that the provision for consultation in Clause 3 of Appendix IV clearly envisages that the consultation should be with somebody who knows the doctor whom the complaint concerned. While it is acknowledged that Mr. Gloster initially indicated that he would consult with Dr. C.D., the appellant points out that the respondent had also objected to consultation with Dr. C.D.
75. The appellant submitted that the fact that Prof. Broe had made complaints to the Medical Council about the respondent does not mean that it was inappropriate for Mr. Gloster to consult with Prof. Broe. Furthermore, the very fact that the Medical Council then proceeded to open an inquiry and make an application to the High Court under s. 60 of the Medical Practitioners Act, 2007 indicates the seriousness of the issues under consideration.
76. The appellant submits that the High Court judge erred in entering into a consideration of whether or not Prof. Broe was biased, and further erred in arriving at a conclusion on this issue at the interlocutory stage. The appellant relies upon the decision of O'Donnell J. (as he then was) in Kelly v. Minister for Agriculture and ors [2021] 2 I.R. 624, [2021] IESC 23. The facts in Kelly were most unusual, involving, as they did, a decision taken by the Government to dismiss a Harbour Master in Killybegs from his employment, after a five-year investigation. The investigation related to a complaint about a conflict of interest on the part of the applicant, Mr. Kelly in the discharge of his functions as Harbour Master. A member of the Cabinet that made the decision to dismiss Mr. Kelly, had, five years previously, made a complaint about Mr. Kelly's conduct in a separate matter to the official conducting the investigation. The appellant relies upon the following passage from the decision of O'Donnell J. (as he then was), to be found at para. 14 of the reported judgment: -
"14. In any event, the bias alleged here is extraneous to the investigation and the decision. What is alleged is that a reasonable bystander might perceive that the conclusions to which Mr. Fitzpatrick came on the facts were influenced not by the merits themselves or the facts established, but rather by the desire (extraneous to the proper investigatory process) to satisfy the Minister. Accordingly, I do not think that the concerns arising from the meeting of October 2004 can be discounted on this basis. However, as set out above, I consider that the reasonable bystander apprised of the exhaustive process in this case would consider that the events in 2004 were unusual and unsatisfactory, but would probably conclude, perhaps after some anxious reflection, that it would be implausible to suggest that when, after an investigation lasting years, Mr. Fitzpatrick produced a report, which was not challenged as to its factual findings by the applicant, on foot of which it was recommended that the applicant be dismissed, a conclusion carefully reviewed by the appeal panel and only partially upheld, that the recommendation which went to Government and was accepted was not merely a product of the investigation which had produced the report, but was somehow influenced by a single meeting nearly five years earlier."
77. The appellant submits that it is apparent from the passage just cited that what needs to be considered is what would a reasonable bystander consider to have been the influences on the actual decision-maker, Mr. Gloster. The appellant also relies on the judgment of Dunne J. in the same case in which she stated (at para. 159, p. 686): -
"In considering this issue overall, it seems to me that the approach taken by Costello J., in the Court of Appeal, is a useful one. At para. 95, she outlined a list of the facts that would be known to the hypothetical reasonable independent observer".
78. The reference to the approach taken by Costello J. (as she then was) in this Court is self-explanatory. Giving the judgement of this Court, Costello J. identified 26 facts that the independent observer would have been aware of when considering whether or not that same reasonable observer could have had a reasonable apprehension of bias on the part of the decision-maker. The appellant submits that an equivalent analysis was not conducted by the High Court judge in this case, and that in failing to do so the judge fell into error.
79. The appellant submits that, before coming to any conclusion that the respondent had established a strong case that the decision of Mr. Gloster to place him on administrative leave should be struck down on grounds of bias, the High Court judge should have considered not just the information imparted by Prof. Broe to Mr. Gloster, but all of other matters that would be known to the hypothetical reasonable and independent observer. The appellant submits that such a list would include a number of key factors the first of which is that the respondent levels no accusation of hostility or animus against Mr. Gloster (although during the hearing of this appeal counsel expressly did say the respondent was asserting bad faith on the part of Mr. Gloster). Secondly, the independent observer would be aware of the two SAR reports and the very serious concerns raised by those reviews. Thirdly, the reasonable observer would be aware that the Medical Council considered those cases, and had considered them to be of sufficient gravity to make an application to the High Court under s. 60 of the Medical Practitioners Act, 2007.
80. The same reasonable observer would, it is submitted, take account of the efforts of Mr. Gloster to investigate personally the cases of A.W. and A.D., to obtain responses of the respondent to the concerns raised, to consider all of the very many documents submitted by the respondent, running to in excess of 900 pages, to confer with the Chairs of both SARs (in order to investigate the respondent's complaints and submissions about them) and that both Mr. O'Malley and Prof. McNamara had stood over their reports. The independent observer would also be aware that the respondent had declined to cooperate with the A.D. review for a period of four months, and that he did not co-operate at all with the A.W. review. These and other matters, it is submitted, would have been weighed in the balance by the independent observer in considering the impact of Prof. Broe's views upon the decision ultimately taken by Mr. Gloster. In failing to conduct any such analysis, the appellant submits that the High Court judge fell into error, leading to an erroneous conclusion.
Submissions of Respondent
81. In response to all of this, the respondent makes three arguments. First and foremost, it is the respondent's contention that in the absence of a Medical Board (and therefore a Chairman or Secretary thereof) it was incumbent upon the appellant to consult with an appropriate person within an "equivalent structure" as referred to in Clause 3 of Appendix IV of the Contract. As to exactly what this might mean, the respondent refers to Clause 7.6 of the Contract which provides as follows: -
"Under the traditional representative model, consultants organise themselves in groupings which reflect the characteristics of individual hospitals/hospital groupings in order to deal with collegiate/non-executive matters. This representative system provides a mechanism to complement and inform the work of the Executive Management Board. Where these representative structures for consultants do not exist, employing authorities will encourage and support their establishment. Employing authorities will, with the agreement of consultants, encourage the development of collaborative working arrangements through their representative structures and by so doing, encourage the fullest participation by all consultants in the arrangements. The appropriate representative head (Chairman or Honorary Secretary) of such a structure, e.g. Medical Board, Medical Advisory Board, Medical Committee or Medical Council, will be accorded a consultative status within the hospital, commensurate with his important representative function, on matters of significance impinging on the medical aspects of the hospital's services."
82. Thus, the respondent submits, it is apparent that, in the absence of a Medical Board, the person with whom the CEO of the HSE is to consult for the purposes of Clause 3 of Appendix IV of the Contract is a person working in the same hospital as the consultant under investigation, acting in a representative capacity, independent of the management of the relevant hospital and the HSE executive staff. Prof. Broe, it is submitted, is manifestly not such a person and it is the respondent's contention that in choosing to consult with Prof. Broe the appellant acted in breach of contract.
83. Secondly, the respondent contends that it was wholly inappropriate for Mr. Gloster to consult with somebody (i.e., Prof. Broe) who he was already aware had complained the respondent to the Medical Council about the very matters Mr. Gloster wished to investigate and in respect of which investigation he was contemplating placing the respondent on administrative leave. Moreover, before the meeting between Mr. Gloster and Prof. Broe on 4th December 2023, the respondent had, at a meeting between the respondent and Mr. Gloster on 22nd November 2023, specifically objected to Mr. Gloster consulting with Prof. Broe because of the respondent's concerns that Prof. Broe would be biased against him. While the respondent acknowledges that Prof. Broe was not the decision-maker, nonetheless it is the respondent's case that he should have had no involvement in the process by reason of pre-judgment, and that by reason of Mr. Gloster's consultation with him, the disciplinary process has been irredeemably contaminated.
84. Thirdly, the respondent submits that in the course of the consultation between Mr. Gloster and Prof. Broe, the latter revealed information to Mr. Gloster that was extraneous to the subject matter of the consultation, which information, apart altogether from its veracity or accuracy, was prejudicial to the respondent and would have, from the respondent's point of view, adversely influenced the decision that Mr. Gloster was contemplating. The High Court judge, in accepting this argument, provided a useful summary of these matters at para. 38 of his judgment, which I have quoted in full at para. 50 above. The respondent argues that, in failing to exclude such information, Mr. Gloster failed to comply with the Braganza test. While the appellant, in its grounds of appeal, formally appeals from this conclusion of the High Court judge, it did not address the issue in its submissions.
Standard of Review
85. Before proceeding to consider the analysis and conclusions of the High Court judge in respect of each matter, it is appropriate to recall the jurisdiction of this Court when reviewing the conclusions of a High Court judge in interlocutory matters. This jurisdiction was subjected to some detailed scrutiny by Collins J. sitting in this court in the relatively recent case of Betty Martin Financial Services Limited v. EBS DAC [2019] IECA 327, a case which also concerned an appeal from the grant of an interlocutory injunction by the High Court, in that instance restraining the termination by the defendant of the plaintiff's agency (previously granted to it by the plaintiff) although the threshold applicable to the application in that case was the lower threshold of a serious issue to be tried. Collins J. noted that this same issue had been previously considered by Irvine J. (as she then was) in this court in Lawless v. Aer Lingus [2016] IECA 235 in the context of an order for discovery made in the High Court. He cited the following passage from the judgment of Irvine J., wherein she in turn had referred to her own judgment (for the Court) in Collins v. Minister for Justice, Equality and Law Reform [2015] IECA 27, citing the following passage: -
"79. For all of these reasons, therefore, we consider that the true position is that set out by MacMenamin J. in Lismore Homes, namely, that while the Court of Appeal (or, as the case may be, the Supreme Court) will pay a great weight to the views of the trial judge, the ultimate decision is one for the appellate court, untrammelled by any a priori rule that would restrict the scope of that appeal by permitting that court to interfere with the decision of the High Court only in those cases where an error of principle was disclosed."
86. In Lawless, Collins J. noted that Irvine J. added the following qualification to that statement: -
"23. However, it seems to me that all too often parties who are somewhat dissatisfied by interlocutory orders made in the High Court seek to use this Court as a venue to re-argue their application de novo in the hope of persuading this court to exercise its discretion in a somewhat different fashion from that which was adopted by the High Court judge at the original hearing. That is a practice which I believe is not to be encouraged. In order for this Court to displace the order of the High Court in a discovery matter the appellant should be in a position to establish that a real injustice will be done unless the High Court order is set aside. It should not be sufficient for an appellant simply to establish that there was a better or more suitable order that might have been made by the trial judge in the exercise of their discretion."
87. Collins J. then summed up these principles at para. 39 of his judgment in Betty Martin Financial Services: -
"Accordingly, while as a matter of principle, 'great weight' is to be given to the views of the High Court Judge, the ultimate decision on this appeal is for this Court. It is also clear that the EBS is not required to establish any error of principle as a pre-requisite to this Court coming to a different conclusion to the Judge."
88. Collins J. also observed that where the High Court does not explain its basis for taking a particular view on a contested issue and/or fails to engage appropriately with the arguments made to the court by one or other party on that issue, that will necessarily affect the weight to be attached to the court's view on appeal. Separately, he said, it is clear that a judge must give sufficient reasons for his or her decision such that the parties can understand the basis for that decision.
Discussion of Grounds of Appeal related to (1) The Application of the Principles settled in O'Sullivan v. HSE and (2) Breach of Contract
Application of the Test in O'Sullivan v. HSE
89. The High Court judge formed three crucial conclusions, two of which may be said to be findings of a failure on the part of Mr. Gloster to make his decision to place the respondent on administrative leave in accordance with the principles adopted by the Supreme Court in O'Sullivan v. HSE and the third of which is a finding of breach of contract.
90. The first conclusion, decisively expressed is that "the moment [Mr. Gloster] engaged with Prof. Broe, he made a fatal mistake." This conclusion was clearly predicated upon the view that Prof. Broe held views prejudicial to the respondent, most clearly demonstrated by the fact that he had reported the respondent to the Medical Council in respect of the very same cases that Mr. Gloster now wishes to have investigated, and Mr. Gloster was aware of this. At first glance this conclusion appears irresistible, but it overlooks the crucial fact that Prof. Broe was not the decision-maker.
91. In his submissions, the respondent acknowledges that this is so, and further acknowledges that the full panoply of fair procedures do not apply to a proposal to place the respondent on administrative leave, as per the dicta of Dunne J. in O'Sullivan. However, it is the respondent's contention that the High Court judge was correct in his conclusion because, it is said, the bias of Prof. Broe in turn tainted the views of Mr. Gloster such as to invalidate the consultation process by reason of objective bias. The approach of Mr. Gloster, it is submitted, is in contrast to the approach taken by his predecessor, Mr O'Brien, in Buckley, who, it will be recalled, re-commenced the consultation process upon becoming aware that the person consulted was in fact one and the same person as the complainant. Insofar as the appellant contends that the High Court judge erred in reaching conclusions at the interlocutory stage, by holding, for example, that Mr. Gloster made a "fatal error", the respondent submits that, even if the language employed by the judge is inappropriate, it is clear that the respondent has met the appropriate test of establishing a strong case on this issue for the purposes of securing injunctive relief.
92. While the respondent's arguments appear persuasive, in my view they do not withstand scrutiny. It appears to me that even though the High Court judge was alert to the fact that Prof. Broe was not the decision-maker, nonetheless, in arriving at the conclusions that he did, the judge appears to have conflated the role of the decision-maker i.e., Mr. Gloster, with that of the person being consulted for the purposes of Clause 3, Appendix IV, of the Contract. As the judge correctly stated, the test applicable to the exercise being undertaken by Mr. Gloster, and the decision that he was contemplating, is the test in Braganza, as approved and adopted by the Supreme Court in O'Sullivan. To recap, that test is that the exercise of a discretion conferred under the terms of a contract - in this case being to decide whether or not to place the respondent on administrative leave - is to be: -
"...carried out in good faith, [and] the decision should also be one which is neither arbitrary, capricious, or irrational, and further, as was stated in Braganza, it follows that such a decision could be impugned, not only where it was one that no reasonable decision-maker could have reached, but also where the decision-making process had failed to exclude extraneous considerations, or to take account of all obviously relevant ones."
93. At para. 77 of the judgment under appeal, the judge stated: -
"I would have thought, however, that it would be appropriate for the CEO to consider somebody who is, in the sense of the Braganza test, acting honestly, in good faith and is independent, or as Dunne J. said in O'Sullivan someone who would "exclude extraneous considerations, or take an account of all obviously relevant ones".
94. This passage suggests that the judge was of the view that the Braganza test applied not just to the to the actions of Mr. Gloster, as decision-maker, but also to Prof. Broe, because the actions and obligations referred to in this passage are clearly intended to refer to the person consulted. Here, I respectfully consider that the judge fell into error. The Braganza test applies only to the decision-maker and not to any person with whom he consults in the course of his deliberations.
95. The whole point of the consultation process is to get the views of the person consulted as to whether or not the circumstances merit placing the consultant on administrative leave, while an investigation takes place. The procedure clearly contemplates that the person consulted - the Chairperson/Secretary of the Medical Board or equivalent structure - will know the consultant concerned, and may well already be familiar with the circumstances giving rise to the consultation. In any case, the CEO will discuss those circumstances with the person consulted with a view to obtaining an opinion from that person as regards the course of action the CEO is contemplating. The person consulted may have an opinion to offer the CEO, which may be favourable to or adverse to the interests of the consultant. If the full panoply of fair procedures were to apply to this stage of the process.it would arguably be necessary to obtain the views of the Chairperson/Secretary of the Medical Board (or whomever may be consulted) by means of a hearing or some equivalent process by which the views of that person would be subject to scrutiny or challenge, and a process that is designed to be swift, would be at risk of becoming bogged down and possibly thereby placing patients at risk. In O'Sullivan, O'Donnell C.J. had the following to say about the possibility of expanding the application of fair procedures in this process (at para. 37): -
"If, however, a decision of the CEO to place the applicant on administrative leave was to be found to fall foul of the Braganza test and to be irrational, arbitrary and capricious, because for example, the expression of an opinion by Professor McKenna was somehow 'unfair', and itself arrived in breach of a requirement of fair procedures and that this infected the opinion of Professor Day and therefore rendered the CEO's decision irrational, then that would add a layer of legal complexity and unpredictability to the process which would make it even more protracted and prone to being derailed by challenge than it already is."
96. As made clear in Braganza, none of this is intended to suggest that fair procedures are not in any way engaged at this stage of the process, they are, but as has been said, to a limited extent and not the full panoply. In this case it can hardly be said that the respondent has not been accorded fair procedures. He has been consulted by Mr. Gloster at every step along the way. He was afforded all documentation relevant to Mr. Gloster's deliberations, he was invited to make submissions (and he made comprehensive submissions) and he had three meetings with Mr. Gloster (at which he was accompanied by a colleague acting in a representative capacity).
97. Of course, if it had been suggested that in consulting with Prof. Broe rather than somebody else Mr. Gloster was acting in bad faith, then the trial judge would have had to consider that argument. While at the hearing of this appeal it was submitted that the appellant might be acting in bad faith in one particular respect (this related to the concerns the respondent had expressed as regards the potential for de-skilling) it was not clear to me that any specific allegation of bad faith was being levelled at Mr. Gloster himself, or, more pertinently, that that case had been made in the court below. Even if such a case had been made, however, the High Court judge made an express finding as to Mr. Gloster's good faith, at para. 86 where he found that: -
"Mr Gloster attempted to act in good faith, and indeed at times went out of his way to ensure that fair procedures were adopted, but the moment he engaged with Prof. Broe, he made a fatal mistake. That fatal mistake cannot be remedied."
98. In finding, as he did, that Mr. Gloster acted in good faith and went to great lengths to ensure that fair procedures were adopted (findings from which the respondent has not cross-appealed) the judge unequivocally concluded that those elements of the Braganza test relating to the good faith of the decision-maker, and the absence of arbitrariness or capriciousness were satisfied. Importantly, there is no cross-appeal from the High Court judge's conclusion that Mr. Gloster was endeavouring to act in good faith. However, it was also argued on behalf of the respondent, and accepted by the High Court judge, that Mr. Gloster had failed to exclude extraneous considerations in arriving at his decision to place the appellant on administrative leave, and I turn now to address that argument.
The "Extraneous Considerations" Argument
99. The High Court judge concluded at para. 89 of his judgment that "By engaging with Prof. Broe, any independent person would consider that extraneous considerations were not excluded." i.e., were not excluded by Mr. Gloster in deciding to place the respondent on administrative leave. The first observation I would make about this conclusion is that it has the appearance of being a final determination of an issue on an interlocutory application. What fell to be determined by the judge was whether or not the respondent had made out a strong case that Mr. Gloster had failed to exclude extraneous information from his deliberations in arriving at his conclusion to place the respondent on administrative leave.
100. The extraneous considerations relied upon were extrapolated from the minute of the consultation between Mr. Gloster and Prof. Broe on 4th December 2023. Importantly, and although not obliged to do so, Mr. Gloster made that minute available to the respondent and invited him to make any observations that he wished to make in regard to the views expressed by Prof. Broe, and the respondent availed of that opportunity.
101. It is undoubtedly the case that in the course of his consultation with Mr. Gloster, Prof. Broe made observations of a prejudicial character that were not directly related to the treatment afforded to patients A.W. and A.D. The High Court judge identified several such observations in the course of his judgment (see para. 50 above). However, it does not follow that these matters were extraneous to the wider issue under consideration i.e., whether or not there may be an immediate risk to the safety and welfare of patients and staff if the respondent were to continue at work for the duration of the investigation the CEO wishes to undertake. Unfortunately, there was very little discussion about this at the hearing of this appeal, and the extent of any discussion about the issue in the Court below is unclear.
102. In any case, there is, in my view, a fundamental difference between receiving extraneous information and failing to exclude it from consideration, per the Branganza test. In a case such as this, while I would not go so far as to say that it is inevitable that in the course of his deliberations at this stage of the process the CEO will receive information - favourable to or adverse to the consultant which is not related to the matters to be investigated - neither is it improbable that this will occur from time to time. However, it does not and could not follow from the mere fact of receipt of irrelevant or extraneous information volunteered by the person consulted that it will inevitably feed into the decision to place the consultant on administrative leave, or that it automatically follows that, in Braganza parlance, the decision maker "failed to exclude extraneous considerations". If that were so, the entire process could easily and repeatedly be frustrated for reasons beyond the control of the CEO. While ideally the CEO should endeavour to ensure that the person consulted focuses only on the matters of concern to the CEO and says no more than is necessary for the purposes of enabling the CEO to address the matters at hand, this is not entirely within the control of the CEO. The consultation process is not a hearing and nor is it a process attracting fair procedures such as might operate to prevent or minimise the disclosure of extraneous information. Where extraneous prejudicial information is disclosed, what is important is that it is not taken into account or weighed in the balance by the CEO in deciding whether or not to place the consultant on administrative leave.
103. In considering this issue, therefore, it is necessary to examine the impugned decision, and the reasons given for that decision. If the reasons given are objectively rational, and sustain a basis for the decision without any reliance on the information that is said to be extraneous, then a court considering the issue at interlocutory stage should be slow to conclude that a strong case has been made out that the decision-maker failed to exclude extraneous information in arriving at the impugned decision. If, on the other hand, it is apparent from the face of the decision that extraneous considerations have not been excluded, or have in some way influenced that decision, then injunctive relief is likely to be warranted.
104. While I would accept that the argument put forward by the respondent on this issue reaches the threshold of a fair issue to be tried, I am not satisfied that it reaches the higher threshold of a strong case. A fair issue is established by the disclosure of prejudicial information outside the four corners of cases A.D. and A.W., but there the argument grinds to a halt. It is far from clear whether or not that information could be said to be extraneous to the more general consideration by the CEO of the risk posed by the respondent to the safety and welfare of patients and staff if he continues to work while the investigation is ongoing. Moreover, there is no express reference to this information in the letter of 3rd January 2024, and in arriving at his decision Mr. Gloster clearly placed great weight on the SAR reports. These provided the CEO with a rational basis for his decision without the need for any reliance upon the information that the respondent claims is extraneous. Moreover, the respondent was afforded and availed of the opportunity to respond to all of the information recorded in the minute of the meeting of 4th December 2023. For all of these reasons, I do not consider that the respondent has established that he has a strong case that Mr. Gloster failed to exclude extraneous information in arriving at the decision to place the respondent on administrative leave.
105. It follows from this conclusion and from what I have said earlier about the conclusions of the trial judge regarding bias, that the High Court judge fell into error in his application of the principles in O'Sullivan v. HSE, and his resulting conclusion that the respondent had established a strong case under this heading must be set aside.
The Breach of Contract Argument
106. In this case, the respondent argues, by reference to Clause 7.6 of the Contract, that in the absence of a Medical Board (and therefore any Chairman or Secretary thereof with whom to consult) the person to be consulted by the CEO of the appellant should be a person who is sourced from the relevant hospital, who is not a member of the hospital or HSE Executive staff, who is independent and who is capable of performing a representative function on behalf of the consultant body. He has argued that Prof. Broe did not meet any of these criteria and accordingly by consulting with Prof. Broe, Mr. Gloster acted in breach of the Contract. Of course, this is not an issue for determination at this stage, but the respondent contends that he has established a strong case that the above mentioned criteria are those that apply where there is no Chair or Secretary of a Medical Board or equivalent structure. It is apparent that this is a stand-alone argument, and does not require the respondent to prove any breach of the principles approved by the Supreme Court in O'Sullivan v. HSE.
107. While the Contract clearly envisages that there might not be a Medical Board, the fallback position as provided for in the Contract is that the CEO must consult with the Chairperson of an "equivalent structure". Neither party has suggested that there is such an equivalent structure, and it seems to be apparent that there is none. In an effort to plug this gap, the respondent has looked for inspiration to other provisions of the Contract and has articulated a persuasive argument that whomever may be consulted, that person should meet the criteria referred to above.
108. But even if this is persuasive (and I do not find it so), it can hardly be said that it rises above the threshold of a fair issue to be tried. At the full trial of the proceedings, it will be necessary for the parties to address the Court on the principles of contract applicable to circumstances where the specific provisions of a contract are incapable of performance, and how those principles are to be applied to the facts of this case. Indeed, the facts of this case illustrate the difficulties involved. Mr. Gloster had originally proposed consulting with Dr. C.D., who would have fulfilled one of the criteria proposed by the respondent i.e., he was a member of the staff at Hospital X. While Mr. Gloster has not explained why he subsequently decided not to proceed to consult with Dr. C.D., it is not in dispute that the respondent in any case also objected to Mr. Gloster consulting with Dr. C.D. At para. 36 of his judgment, the High Court judge mentions that when it became apparent that neither Prof. Broe nor Dr. C.D. were acceptable to the respondent, the parties discussed who else might be appropriate, but it was not possible to reach agreement. The minute of the meeting of 22nd November 2023 records the respondent as saying, in answer to a question as to whom the respondent would consider acceptable, that he did not wish to tell the respondent how to do his job.
109. All of this illustrates very clearly the difficulties in identifying what is required of the CEO in circumstances where the specific positions from which the persons to be consulted under the Contract do not exist. In those circumstances, and leaving aside the question of bias, which I address below, Mr. Gloster took the view that Prof. Broe, as the Group Clinical Director of the RCSI was an appropriate person to consult, while the respondent maintains that he must find another person meeting criteria extrapolated by reference to other provisions in the Contract. In my judgment, while I would readily accept that the point is arguable, I would respectfully differ from the conclusion of the trial judge that it meets the strong case test per Maha Lingam v. HSE [2005] IESC 89, [2006] E.L.R. 137. This then brings me to the question of bias.
Balance of Convenience and Clean Hands
110. I turn now to address to address the two other grounds of appeal of the appellant, those being that the High Court judge erred in his conclusion that the balance of convenience favoured the respondent and also erred in failing to conclude that the respondent had not come to equity with clean hands.
Balance of Convenience
111. The High Court judge dealt with this issue very briefly. He noted that the issue is complicated somewhat in this case by reason of the fact that part of the original action (i.e., the relief sought relating to the Mills 2 investigation) was put on hold pending the decision of this Court in the appeal from the decision of Egan J., and also pending the determination of any possible appeal to the Supreme Court. Those matters have since been finalised in the respondent's favour. However, the fact that that is so does not offer very much guidance as to how long the investigative process is likely to continue, and for how long the respondent would continue to be on administrative leave, if the decision of the High Court were to be set aside. The only safe assumption is that it will continue for some time - as Butler J. observed in her judgment in this Court it is not at all improbable that these matters will not be resolved before the respondent reaches retirement age (the respondent turns 64 this year).
112. In any case, having made that observation, the judge then proceeded to address the issue of the balance of justice in the following terms, at para. 94: -
"Nonetheless, I am of the opinion the balance of justice rests with the Plaintiff. If he is deprived of his ability to ensure his skills sets are not lost, then in the event of him being successful at a hearing, [then] it is perfectly possible and indeed probable, given the animosity between the parties, that the Defendant would say his skills are not of the requisite standard to continue to act . The Defendant was given the opportunity to give assurances on this point but declined to do so. Therefore, the court can infer that this is a likely prospect."
113. That is the extent of the exploration of the balance of justice. There is no analysis of the implications for the appellant, or more particularly, any consideration of the public interest and the vitally important issue of risks to the interests and welfare of hospital patients, in the event that the relief sought is granted. In simple terms, it is the appellant's position that issues of patient safety in which the respondent may have played a part were identified in the SAR reports, that these concerns were endorsed by Prof. Broe and that until such time as they have been resolved, the balance of justice must weigh in favour of the appellant not the respondent.
114. While the respondent argued, forcefully, that, by the time these proceedings are concluded he may be deemed by the appellant to have become de-skilled and may not then be permitted to return to work, the appellant's position is that it is not unusual for consultants to be off work for periods of months, and that hospital groups respond to these challenges as appropriate depending upon the facts of each case. This may be done through continuous professional development and/or supervision for such period as is necessary or appropriate. The appellant strenuously denies the suggestion made by the respondent that it might deliberately manipulate concerns around de-skilling such as to prevent the return of the respondent to the workplace. In effect, the appellant submits that this is an accusation of bad faith against Mr. Gloster, whose bona fides have not in fact been impugned by the respondent, and whose good faith was acknowledged by the High Court judge, notwithstanding the observation made by the judge about "the animosity between the parties" in the passage quoted above.
115. In reply to all of this, the respondent submits that there is no evidence of any serious or immediate patient safety concerns. It is submitted that while Mr. Gloster said, in his letter of 3rd February 2024, that he had "a patient safety concern", he doesn't identify precisely what it is, and the SAR reports themselves do not state that there is an immediate and serious risk to the safety, health or welfare of patients. This is so notwithstanding that there is an express request in the terms of reference commissioning the SAR reports inviting the reviewers to notify the HSE if they have such concerns, and the reports did not identify any. As already indicated, the respondent also relies on the fact that the events giving rise to the reports occurred, in the case of A.W. over the course of 12 months between December 2020 and December 2021, and in the case of A.D., the events occurred in April 2022. It was submitted that the antiquity of these events is such that they cannot be relied on to demonstrate an immediate risk to the safety, health or welfare of patients or staff.
116. The point was also made that the respondent had provided references from colleagues, also consultants who are also concerned with patient safety, and who wrote in support of the respondent. By contrast, it was submitted, the appellant is relying only upon the consultation with Prof. Broe, and there is no independent medical evidence to support the proposition that the respondent represents a risk to the health or welfare of patients or staff. This is, it is submitted, unlike what occurred in Buckley or O'Sullivan, in which cases the Chief Executive or the local hospital administrator obtained independent medical opinions before coming to the decisions to suspend Surgeon Buckley and Prof. O'Sullivan.
117. While these arguments are not without merit, the difficulty from the point of view of the respondent is that clear risks to patient safety have been identified in the SAR reports. While the respondent vigorously disputes any shortcomings on his part in the care and treatment afforded to those patients, nonetheless, in the case of A.W., there can be no dispute but that the respondent had a central role in his care and treatment, while in the case of A.D., he was the consultant surgeon on call on the night on which A.D. was admitted to hospital, but could not be contacted. While there are significant disputes on the facts of these matters, what is not in doubt is that both A.D. and A.W. received inadequate care and that is acknowledged by the SAR reports. Indeed, it was acknowledged by counsel on behalf of the respondent in the course of the stay hearing, while making it very clear that responsibility for these shortcomings lay elsewhere. On any view of it, however, the respondent, in his capacity as a Senior Consultant at Hospital X, to one degree or another had an involvement in the care and treatment afforded to each of those patients. While he denies any shortcomings at all in his role, that is a matter to be determined following upon the investigation that Mr. Gloster wishes to undertake.
118. The extent of any risk to patients if the respondent continues to work in the meantime, pending the conclusion of the investigation is difficult to assess, but it is not necessary for the Court, in assessing the balance of justice, to be satisfied that there is an immediate and serious risk to patients of the respondent. That was a matter for Mr. Gloster in taking the decision to place the respondent on administrative leave. In fact, as Dunne J. observed in O'Sullivan, the clause in the Contract requires only that the CEO is satisfied that there may be an immediate and serious risk, not that there actually is such a risk. In any case, at this juncture the assessment to be made by the Court is where lies the least risk of injustice in the granting or refusal of the relief sought.
119. In this regard it should be noted that, surprisingly, neither party made submissions as regards the adequacy of damages. Perhaps this implicitly reflects an acceptance by each party that damages is not an adequate remedy to the other. But whether or not that is so, and while I acknowledge that damages may not fully compensate for de-skilling or loss of reputation, nonetheless in the scheme of things I would have thought that damages would go a long way to compensating the respondent if he remains on administrative leave and is vindicated after the full hearing, whereas damages for adverse consequences to any patient who might suffer harm or injury cannot be countenanced in any circumstances as being capable of assessment under the rubric of "adequacy" in this context. In the balancing exercise, the existential risks of uncompensatable harm to members of the public far outweighs the issues identified by the respondent.
120. As mentioned already, in resisting this element of the appeal, the respondent relied significantly on the risk of his becoming de-skilled in the event of his remaining on leave, and the lack of any assurance from the appellant that this will not be relied upon if the respondent is vindicated. However, Mr. Gloster has averred that it is not unusual for consultants to be out for extended periods for a multiplicity of reasons, and there are several paths available to them to re-establish their skillset. This is all the more so in the case of a person such as the respondent, who has accumulated so many years of experience in his chosen field. On any reasonable view of it, the respondent would surely have the capacity to re-establish himself in practice, whereas adverse consequences for patients may not be capable of remedy, and in any case they simply should not have to run the risk of exposure to the same.
121. For these reasons, I am satisfied that there can be no doubt at all that the balance of justice favoured the refusal of the relief sought by the respondent, even if he had established a breach of the Braganza principles or otherwise established a strong case for the granting of the relief sought.
Clean Hands
122. On 8th February 2024, the respondent moved an application, which was granted, for short service of the within proceedings. This application was grounded upon the same affidavit of the respondent of 6th February 2024 upon which he grounded his application for interlocutory relief. More than a month previously, on 2nd January 2024, the sexual assault charge to which I have referred earlier, was proffered against the respondent in the District Court. The respondent was granted bail. The respondent made no reference either to the charge itself or to the conditions on which he was admitted to bail in his grounding affidavit sworn five weeks later. Nor did he separately inform the appellant of these matters at the time. Likewise, no reference is made to the charges or the bail conditions in a twelve-page letter sent by the solicitors for the respondent to Mr. Gloster on 16th January 2024, in response to Mr. Gloster's letter of 3rd January 2024, in which the respondent's solicitor undertakes a comprehensive review of relations between the parties between October 2021 and Mr. Gloster's letter of 3rd January 2024, notwithstanding several references in the letter to the complaint made by the staff member and the appellant's concerns regarding that complaint.
123. On 23rd January 2024, the solicitors for the appellant replied to the letter of the respondent's solicitors of 16th January. In this letter, the solicitors for the appellant requested to be put on notice of any ex parte application the respondent might be contemplating, having regard to the history of the matter. However, the respondent proceeded to make the application for short service, ex parte, on 8th February 2024, and in doing so made no reference to the criminal charge or the bail conditions. I should emphasise that in moving this application, counsel for the respondent was at the time unaware of these developments.
124. On 20th February 2024, the solicitors for the appellant wrote to the solicitors for the respondent specifically (and only) about the allegation of sexual misconduct inquiring, inter alia, whether or not the respondent had been charged with a criminal offence, and if so, asking the solicitors for the respondent to identify the offence. They also inquired whether or not the respondent had entered a plea, whether he had been remanded on bail, and if so, they requested particulars of the bail conditions.
125. By reply of 23rd February 2024, the solicitors for the respondent confirmed that he had been charged with one count of sexual assault at a Garda Station on 2nd January 2024, where he had attended voluntarily and by appointment. They stated that he was then brought before the District Court on the same date when he was admitted to bail. They stated that, to the writer's surprise, the prosecution sought a bail condition that the respondent should not attend at Hospital X. The solicitor attending for the respondent opposed that application on the basis that it would prevent the respondent from attending his place of work and earning a living. The letter also stated that the prosecuting Garda informed the court that he had been informed that the respondent was already the subject matter of a suspension from work. The letter further stated that the District Court judge declined to impose the condition sought as one of the conditions of bail, and that the matter was adjourned to 30th April when the respondent intended to enter a plea of "not guilty".
126. The solicitors for the appellant replied by letter dated 6th March 2024, expressing their great surprise that the respondent had not previously informed the appellant that he had been charged with sexual assault on 2nd January 2024, having regard to the fact that the charge related to the alleged assault of a fellow employee of the appellant and also having regard to the respondent's position as a consultant surgeon. The letter stated that it was the appellant's position that the respondent had a duty to inform the appellant of this development. The solicitors for the appellant again requested particulars of the precise bail conditions, "by return". They expressed great surprise that in his grounding affidavit running to 32 pages and 94 paragraphs, the respondent had made no mention that he had been charged with the criminal offence of sexual assault of a fellow employee. They asked for an explanation for this omission, and stated that "the gravity of this situation cannot be overstated."
127. The solicitors for the appellant wrote a further letter on 8th March by way of reminder, having regard to the fact that the matter had been for mention in the High Court the day before and that they were required to prepare a replying affidavit in preparation for the early hearing being sought by the respondent. The solicitors for the respondent replied by letter on the same day (8th March). While the letter runs to two pages, it does not address the bail conditions, and the solicitors for the respondent appeared to suggest (as they had done previously) that they were not free to disseminate information relating to the charges against their client. On the same date, the solicitors for the appellant again requested details of the precise bail conditions. On 11th March, the solicitors for the respondent finally provided particulars of the bail conditions, which, it will be recalled provide, so far as relevant are that the respondent should "have no contact in any way whatsoever, directly or indirectly, with the alleged injured party or any witnesses, the subject matter of these proceedings", and that he "should surrender [his] passport and undertake not to apply for a new or duplicate passport or for any other travel documentation".
128. While the interim relief sought and obtained by the appellant was for short service only, it will be recalled that the substantive interlocutory relief sought by the appellant includes an order, by way of injunction, prohibiting the appellant from placing or continuing the respondent on administrative leave and restoring the respondent to his place of employment, i.e. Hospital X.
129. The replying affidavit of Mr. Gloster was sworn on 1st March 2024, and did not mention the criminal charge, even though his solicitors had been informed of this by the respondent's solicitors by letter dated 23rd February 2024. However, Mr. Gloster did address the criminal charge (though not the bail conditions) in his second affidavit sworn on 13th March 2024, averring that the failure on the part of the respondent to inform the appellant that he had been charged with the commission of a serious criminal offence on 2nd January 2024 was a matter of concern for him [Mr. Gloster]. He averred that he was concerned that the respondent may have breached his contractual obligations to the appellant by failing to disclose these matters, in particular where the alleged assault is the subject of an existing investigation.
130. I have addressed at paras. 58-61 above the High Court judge's treatment of this issue. While the judge said that he would reflect his unhappiness with the respondent's lack of candour by making an order permitting the respondent to carry on in other hospitals of the appellant, i.e. any hospital other than Hospital X, the kind of work that he had been carrying on in Hospital Z, it is apparent that in formulating his order in this way he was taking account of practical considerations rather than reflecting any displeasure in the respondent's lack of candour. By this I mean it is clear that the judge was intent on formulating an order that would enable the respondent to continue working (and avoid the risk of de-skilling) while at the same time avoiding the respondent violating his bail conditions by having any contact at all in Hospital X with the complainant of the sexual assault charge. The judge also observed that such an order would ensure that nothing could happen that might interfere with the respondent's trial on that charge.
131. At the hearing of this appeal, the appellant described the respondent's failure to disclose the fact that he had been charged with the sexual assault of work colleague and the particulars of his bail conditions as "egregious" and submitted that this omission was sufficient in and of itself to deprive the respondent of the relief he sought, even if he was otherwise entitled to it, which of course the appellant denies. The appellant relied on the decision of Murray J. in Egan and Barron v. Heatley, to which the High Court judge had referred. That case involved a claim for specific performance or for damages in lieu of specific performance of a contract for sale of a site on which the plaintiffs had, with the consent of the defendant, entered into possession and carried out building works at some expense. Difficulties arose when the plaintiffs could not produce the insurances which the defendant insisted he had always said were a condition of the agreement (but which condition had not actually been included in the written contract for sale) and ultimately the defendant sought to terminate the contract and forfeit the plaintiffs' deposit. In the course of the proceedings, the plaintiffs had sought to rely on forged documents to enhance the value of the damages they had suffered. Following a comprehensive review of the authorities dealing with the circumstances in which an entitlement to equitable relief may be lost owing to the conduct of the plaintiff, Murray J. held at para. 98: -
"Where a party seeks equitable relief by reference to materially false evidence, the question is not whether the evidence was connected with the event alleged to generate the entitlement to that relief, but whether it was used by the party to obtain relief based on that event. The reason equity precludes an applicant in these circumstances from obtaining any relief derives not from whether they might otherwise have had an entitlement to it (that is why it matters not if the evidence is adduced in order to broadly reflect the facts as they believe them) but because in the course of asserting that claim they have behaved unconscionably and in a manner that is at the same time morally reprehensible and undermining of the integrity of the administration of justice."
132. Applying that principle to the facts at hand, Murray held at para. 100: -
"In overall terms there was a disturbing differential between what the plaintiffs claimed, and what they could actually prove, and this must have been apparent to them long before their case opened in the High Court yet they chose to persist with their claims. This was, to borrow the words of Andrew Smith J., misconduct by way of deception in the course of litigation directed to securing equitable relief. The fact of that misconduct together with its nature and extent in and of themselves disentitle the plaintiffs from claiming equitable damages. Given the trial judge's reference to Mr. Barron being 'exposed in a transparent attempt to advance a claim for which there was no conceivable justification', he ought to have exercised his discretion against the grant of any relief."
133. Of course, in this instance we are not concerned with the forgery of documents or the reliance upon evidence which the moving party knows to be false or untrue, in order to support his claims, but rather upon the failure to disclose, in a very detailed affidavit grounding an application for injunctive relief, information that was highly relevant to the exercise by the High Court judge of his discretion whether or not to grant the relief sought. The fact that the information was provided in correspondence between the solicitors for the parties before the application came on for hearing in the High Court does not detract from the seriousness of the respondent's default. It is no credit to the respondent that the information ultimately was provided by his solicitors, because it is clear that it only became available because of the persistence of the appellant's solicitors. But for that persistence, it seems reasonable to infer that the information would not have been volunteered to the court by the respondent, and the application would, most likely, have proceeded on the basis of his affidavits.
134. To understand the seriousness of this, one only has to contemplate what almost certainly would have happened next. Having regard to the decision that he made with knowledge of the sexual assault charge and the bail conditions, it can scarcely be doubted that without that knowledge, the High Court judge would have made an order requiring the appellant to permit the respondent to resume his full duties at Hospital X pending the determination of the investigation. That would have entailed the respondent working in close proximity to her accuser, contrary his bail conditions. Even if it had not been precluded by his bail conditions, it is not difficult to see how wholly inappropriate this would be, and it is thus manifestly apparent that, not only should the respondent have disclosed this information in his grounding affidavit, he should have brought it to the attention of the appellant as soon as these developments occurred i.e., prior to the issue of the proceedings. Not only did he not do that, he has at no time provided any explanations for his failure to do so, even though the issue had been raised as far back as the date on which Mr. Gloster delivered his supplementary affidavit, i.e. 13th March 2024.
135. At one point it was suggested that the respondent considered that it was unnecessary for him to inform the appellant of the fact that he had been charged because the appellant had already been made, informally, aware of that fact through the Gardaí. It was also suggested that the respondent did not think it was necessary for him to inform the respondent because the conditions of bail did not expressly prevent him from returning to the workplace. It was also suggested that the respondent was conscious of reporting restrictions, the implication being that he felt constrained from divulging this information to third parties. But whatever the reason, as stated already, the respondent failed to provide any affidavit explaining his failure to inform the appellant of these matters in a timely manner and in particular (and at the very latest) in his grounding affidavit.
136. At the hearing of this appeal, counsel for the respondent submitted that while as a matter of candour the respondent should have provided this information to the Court, nonetheless his failure to do so did not offend the principle that he who comes to equity must come with clean hands because the information which he failed to disclose is not central to the basis upon which he sought relief, which is concerned, inter alia with the decision making process, and how that was affected by the alleged bias on the part of Prof. Broe. That may be so, but in framing the argument in this way, counsel for the appellant focuses on the basis for the relief sought by the respondent, rather than on the relief itself. With respect, that is not the correct approach to the issue. The correct approach is summarized by a passage from the judgement of Lord Scott, in Grobbelaar v. News Group Newspapers [2002] UKHL 40, [2002] 4 All ER 732, at para. 90 (cited with approval by Murray J. in Egan and Barron v. Heatley, at para. 74): -
"[I]t is long-established practice that an equitable remedy should not be granted to an applicant who does not come before the court with 'clean hands'. The grime on the hands must, of course, be sufficiently closely connected with the equitable remedy that is sought in order for an applicant to be denied a remedy to which he ordinarily would be entitled. And whether there is or is not a sufficiently close connection must depend on the facts of each case."
137. For the reasons already stated, it can scarcely be doubted that there is a connection between the information that the respondent failed to include in his grounding affidavit, and initially resisted delivering to the appellant in correspondence, and the mandatory injunction sought by him by way of interlocutory relief. He could never have hoped to obtain the relief that he sought had he disclosed the facts concerning the charge brought against him and the bail conditions. On the other hand, by omitting those facts, there was the possibility that he could obtain that relief if the court were otherwise satisfied that it should be granted.
138. The fact that everything had come out into the open by the time of the interlocutory hearing is immaterial. While it cannot be said that this came about by chance, since the solicitors for the appellant requested the information, the duty is on the person seeking the equitable relief to come to equity with clean hands and this duty is not complied with if the party against whom relief is sought has to prise from the applicant (in this case through correspondence) information that is highly relevant to the relief sought. If that were to be the situation then applicants would have nothing to lose by withholding relevant information, secure in the knowledge that they could mend their hand if the right questions are asked by the other side later on.
139. For foregoing reasons, I am of the view that the High Court judge erred as a matter of principle in failing to conclude that "there [was] an immediate and necessary relationship between the conduct in question and the equity sued for" to use the words he himself used at para. 69 of the judgment. In my view there was great clearly such a relationship, and once the conduct of the respondent came to light, it was incumbent upon the High Court to refuse the relief sought, or any version of it.
140. The appellant also claimed that the respondent had failed to come to equity with clean hands in another respect. The appellant claims that the respondent, at para. eight of his affidavit of 6th March 2024 (sworn in reply to Mr. Gloster's replying affidavit) deliberately doctored an extract quoted from the transcript of the meeting of 22nd November 2023 (between Mr. Gloster, the respondent and Mr. Duffy) so as to omit reference to a part of the discussion during which Mr. Gloster asked the respondent to take a copy of a letter sent to him (i.e. to the respondent) by Mr. Gloster's predecessor, Mr. Mulvany dated 2nd March 2023, with a view to asking for the respondent's observations on that letter. This issue was raised by Mr. Gloster in his second affidavit of 13th March 2023, in reply to the respondent's affidavit of 6th March. While the High Court judge mentioned it as being one of two issues raised by the appellant as regards the respondent not coming to equity with clean hands, he did not address this element of the issue further.
141. It is not in dispute that at para. eight of this affidavit the respondent quoted an extract of the transcript of the meeting of 23rd November 2023, while omitting a portion of the conversation without identifying the elision. The text which has been omitted makes it clear that Mr. Gloster's purpose in attempting to provide a copy of the letter to the respondent during their conversation was to afford the respondent a further opportunity to respond to the letter, and it also demonstrates that the respondent declined to take a copy of the letter. I should explain that the letter of 2nd March 2023 sent by Mr. Mulvany to the respondent enclosed the terms of reference of the Mills 1 investigation, while at the same time setting out those terms in the letter.
142. To be fair to the respondent, it is better that I set out the relevant part of his affidavit verbatim. For expedience, I will highlight in bold those parts that are most relevant to the appellant's submission on the issue: -
"At paragraph 7 of his affidavit, CEO Gloster states that I made representations to him regarding 'some but not all of those matters'. It is not entirely clear what matters are being referenced here, but I would point out that I was never asked by CEO Gloster to make any representation(s) on the matters which were previously considered by CEO Mulvaney and referred by the latter for Investigation by Mr Mills SC. CEO Gloster referenced those matters in his letter to me of 07 December 2023 (exhibited at 'FF' to my Grounding Affidavit) and referred to letters to me from CEO Mulvany dated the 2nd March 2023 and the 24th February 2023. However, Transcript (sic) of the meeting with CEO Gloster of 22nd November 2023 (page 102) - references only one letter, that of 2nd March 2023, there was only one letter proffered at me (sic), namely that of 2nd March 2023, (which referenced Mills 1 Investigation). However, reference by CEO Gloster to a second letter of 24th February 202, (sic) (which was the letter from Mr. Mulvany re; voluntary Administrative Leave) was not, and this is confirmed by the Transcript itself (page 101). CEO Gloster's letter to me of 17 October 2023 (exhibited at 'W' to my Grounding Affidavit) had made a bare reference to my 'previous engagements' with CEO Mulvany as being 'relevant to the reasons' why CEO Gloster was writing to me. Thus, it would appear that Mr. Gloster had signalled that the allegations the subject of the Mills 1 Investigation were "relevant to the reasons I am now writing to you". However, he did not request any submissions or response from me regarding those matters. For the purpose of convenience, I enclose the relevant Stenographer's pages of our meeting on 22 November 2023...."
143. As regards the text omitted from the transcript, it is unnecessary to quote it in full. The following is sufficient, it being conversation taking place just after the respondent has refused to take a copy of the letter of 2nd March 2023: -
Mr. Gloster: "Okay. So if you just bear with me for a second, the letter is in dispute, so what I'm saying to you is in the context of addressing the totality of everything you have put before me and the fact that this also stands open to the CEO of, which I am now the holder of that office, I'm making you aware that I'm also considering that letter in the context of my overall consideration and if you want to make any point about that you can. But I hear your point that it's in dispute, so you don't wish...." [Emphasis added]
144. Following this, the respondent explains why he does not like to take a letter by hand and invites Mr. Gloster to send this to him in writing so that he may respond. His exact words were "I will (sic) not like to take documents in a hand. If you wanted to put your point, we can reply and write it". Mr. Gloster then points out that the respondent already has a copy of the letter and he is offering it to him just to refresh his memory. He makes the point that since the respondent referred him (Mr. Gloster) to his previous dealings with Mr. Mulvany, then he (Mr. Gloster) is also considering the same. The respondent then explains that he does not like to take documents out of context.
145. Thus, it is apparent that Mr. Gloster made it clear that he was offering the respondent a copy of the letter of 2nd March 2023 so that he could respond to it at the meeting. Therefore, the averments of the respondent in paragraph eight of his affidavit that he had never been asked by Mr. Gloster to make any representations on the matters which were previously considered by CEO Mulvany appear to be incorrect. In para. 9 of his affidavit, the respondent avers:
"9. Insofar as the allegations the subject of the Mills 1 investigation were raised, without prior notice, in the meeting of 22nd November 2023, I indicated that I would respond to anything. CEO Gloster saw fit to put, in writing, to me CEO Gloster however never sought engagement in writing [my emphasis] from me regarding the assault allegation or the prescription allegation which had been considered by CEO Mulvany and which had been referred by him for investigation by Mr. Mills SC."
146. On 7th December 2023, Mr. Gloster wrote again to the respondent, enclosing a copy of Mr. Mulvany's letter of 2nd March 2023, as well as a copy of another letter sent by Mr. Mulvany to the respondent on 24th February 2023. In this letter Mr. Gloster stated, inter alia: "For clarity, I am considering these matters in addition to the concerns set out in my letter of 17th October 2023 and your responding submissions." Two things may be said about this letter. The first is that it is obvious that Mr. Gloster was sending this letter to the respondent following on from their discussion about Mr. Mulvany's letter of 2nd March 2023 at the meeting of 22nd November 2023, and because the respondent had refused to "take it [the letter of 2nd March 2023] in hand". Mr. Gloster was clearly providing the letter in order to afford to the respondent an opportunity to respond to it as he saw fit. So that even if Mr. Gloster did not expressly say in the letter of 7th December 2023 "please let me have your response" or words to that effect, the respondent most have known from the discussion of 22nd November 2023 why he was again being provided with a copy of a letter that had already been sent to him, and the averment in his affidavit that "he did not request any submission or response from me regarding those matters" is at best pedantic, and at worst disingenuous.
147. In reply, at the hearing of this appeal, to the accusation that he had deliberately omitted a portion of the transcript of the meeting of 22nd November 2023 in order to create a false impression as to what was discussed, the respondent made two points. Firstly, it was submitted on his behalf that it had been intended when quoting the extract from the transcript to highlight that text was missing through the use of an ellipsis and that it is the omission of the ellipsis has created the impression of a deliberate omission or doctoring of the text. He also relied upon the fact that he exhibited with his affidavit a full copy of the transcript of the discussion.
148. It has to be said that given the seriousness of the issue which was raised by Mr. Gloster in his affidavit of 13th March 2023, one would have expected the respondent to address it by way of replying affidavit. Instead, it was left to counsel to make such submissions as he could about the issue without any explanation on affidavit from either the respondent or his solicitor. Taken together, the omission of text from the extract of the transcript and the averment of the respondent that he had not been requested to respond to the matters in issue create the impression that Mr. Gloster was relying upon the contents of Mr. Mulvany's letter to the respondent of 2nd March 2023 without having afforded the appellant the opportunity to respond to the same, in circumstances where it is very clear that Mr. Gloster had afforded the respondent every reasonable opportunity to do so. This was clearly misleading and in my estimation it is a further example of the respondent not coming to equity with clean hands.
Cross-Appeal of the Respondent
149. The respondent's grounds of cross-appeal are set out above at para. 67. The first two of these relate to the matters the subject of the Mills 1 investigation, in respect of which the respondent maintains that the High Court judge erred in failing to find that Mr. Gloster should not have relied on matters previously considered by Mr. Mulvany, and further erred in failing to find that Mr. Gloster had failed to provide the respondent with an adequate opportunity to provide submissions in regard to the same.
150. At the hearing of this appeal, no argument was advanced as to why it is claimed that Mr. Gloster was not entitled to take into account the matters previously considered by Mr. Mulvany, and I fail to see why Mr. Gloster should not be entitled to take those matters into account in considering his decision as to whether or not to place the respondent on administrative leave. The respondent argued in the High Court that Mr. Mulvany had made a decision not to place the respondent on administrative leave in respect of these matters, but it is apparent that that was not a final decision and that Mr. Mulvany was under a misunderstanding that the respondent was not engaged in clinical work at the time. While the respondent had argued that Mr. Gloster was functus officio in respect of these matters, by reason of an earlier decision taken by Mr. Mulvany, his is not borne out by the correspondence and I consider that the decision of the High Court judge on this issue was correct.
151. The second ground of appeal under this heading is that the High Court judge erred in failing to find that Mr. Gloster had not afforded the respondent an adequate opportunity to address the matters previously considered by Mr. Mulvany. However, the correspondence reviewed in the last preceding section of this judgment demonstrates that that is not so and this ground of cross-appeal must therefore also be rejected.
152. The third ground of cross appeal is that the High Court judge erred in failing to find that, having regard to the antiquity of the matters addressed in the SAR reports, it was irrational and/or unreasonable for Mr. Gloster to conclude that there was "an immediate and serious risk to the safety, health or welfare of patients or staff " in circumstances where the clinical care giving rise to the concerns of the appellant had been provided respectively 25 months and 21 months prior to the letter of 3rd January 2024, and the SAR reports relating to the same work concluded respectively eight months and seven months prior to the decision to impose administrative leave. It followed, it was submitted, that there could not have been an immediate and serious risk to the safety, health or welfare of patients or staff.
153. It must be said that there was very little discussion about this point at the hearing of the appeal. One point that was made by the respondent was that the authors of the SAR reports were invited, in their terms of reference to "advise the commissioner [of the SARs] of any immediate safety concerns to the service that may be identified, as soon as possible so that any required actions may be taken in a timely manner". The respondent submits that no such immediate safety concerns were identified, and that this indicates that Mr. Gloster did not have a reasonable basis for his conclusion that there may be an "immediate and serious risk to the safety, health or welfare of patients or staff".
154. In regard to this latter point, the same issue was addressed by O'Donnell C.J. in O'Sullivan at para. 62, as follows: -
"It is, in my view, dangerous to seek to derive the presence of a positive opinion from the absence of a negative statement. I do not think it can properly be deduced that because either the Doran/Brennan report or the SAR report did not themselves express a concern as to an immediate risk of harm to patients, that any of the experts concerned had positively concluded that there was no serious or immediate risk to patient health, safety or welfare, still less that the CEO was not entitled to come to a conclusion on the issue the contract assigned solely to him. If this reasoning was appropriate, it might just as easily be argued that the decision of the CEO to place Professor O'Sullivan on administrative leave should not be seen as irrational because Dr Waldron, the Chairman of the Medical Board, having consulted with the Irish Hospital Consultants' Association, did not protest that the decision to place the applicant on administrative leave was arbitrary, capricious or even unjustified, or indeed, that the decision could not be arbitrary, capricious or irrational since Professor O'Sullivan who was appraised of all material facts at the time, and was in receipt of legal advice, did not commence any proceedings to challenge the decision either when informed of it, or indeed, at any point thereafter".
155. So, therefore, it cannot be said that simply because the authors of the SAR reports did not express a specific opinion on the issue that it was their view that there is no serious or immediate risk to patients by reason of the conduct of the respondent.
156. More generally, the fact that there is a lapse in time between the occurrence of an incident of clinical concern and the consideration of an investigation into the role of a particular person in connection with that incident does not eliminate a risk to patients. If there is indeed a risk to patients, that risk continues for every day until such time as the necessary steps are taken to eliminate the risk. In circumstances where Mr. Gloster wishes to investigate the actions of the respondent in two cases in which there were such poor outcomes for patients (one being the worst possible outcome, a fatality) and the respondent, who appears to have been the senior consultant involved in each case, is denying any culpability for those outcomes (as he is entitled to do) then the immediacy of the risk persists until the source of it is identified and appropriate measure are taken to resolve it. For the foregoing reasons, I would reject the cross-appeal of the respondent on this point.
157. The fourth ground of cross-appeal is that the High Court judge erred in failing to find that the reasons provided by Mr. Gloster were inadequate and lacking in specificity. In the course of his correspondence and meetings with Mr. Gloster, the appellant repeatedly claimed that he did not know the precise nature of Mr. Gloster's concerns. The High Court judge rejected this argument stating, bluntly, that the respondent knew the case against him. While the respondent submits that the SAR reports are not specific to him but rather are a review of all of the hospital systems deployed in the treatment and care of patients A.W. and A.D., the fact of the matter is that it is not difficult to identify within those reports where particular responsibilities lay at any moment in time. In his letter dated 11th December 2023 to the respondent. Mr. Gloster, in answer to the respondent on this point stated: -
"You are (and ought to be) well aware of the concerns that arise for me concerning your conduct as a Consultant arising from the content of the two systems analysis reports I have been presented with. We have discussed these reports and the concerns that arise from them in respect of your management of the patients in question, at considerable length, in our meetings. ...
...the fact remains that I, as CEO of the Health Service Executive am in possession of two systems analysis reports which make findings and state contributory factors concerning you about two individual cases and patient outcomes. All of the findings of the reports and the details therein, of which you are in full possession, constitute my concerns".
158. I consider that the High Court judge was correct on this issue also. The respondent simply could not have been unaware of the nature of Mr. Gloster's concerns insofar as they relate specifically to the respondent's own conduct. To conclude otherwise would be to adopt a wholly unrealistic view of all of the correspondence and exchanges between the respondent and Mr. Gloster between October 2023 and January 2024. It is not necessary, at this stage of the process, which is a prelude to an investigation, for the appellant to provide the respondent with allegations of misconduct in the same level of detail that might be required at a later stage in the process when disciplinary proceedings are being contemplated. I would therefore dismiss this ground of cross-appeal also.
159. The final ground of cross-appeal is that the High Court judge erred in failing to find that the SAR reports did not provide a reasonable basis for the view taken by Mr. Gloster that the respondent posed a risk to patient or staff safety, health or welfare. This is essentially a challenge to the rationality of Mr. Gloster's decision to place the respondent of administrative leave. It is, to large extent, addressed by the conclusions in the last two grounds of cross-appeal. Moreover, as I have said earlier, the SAR reports disclosed inadequacies in the treatment and care afforded to patients A.D and A.W. This much was accepted at the hearing of this appeal by counsel for the respondent, while vehemently denying any responsibility for those inadequacies. While the respondent claims that the responsibility for any such inadequacies rests with others, and further maintains that he is being singled out for blame, the fact of the matter is that he was a senior consultant involved in the care and treatment of both patients while they were in Hospital X, and I can see no error on the part of the High Court judge in failing to reach the conclusion that the SAR reports did not provide a reasonable basis for the view taken by Mr. Gloster.
Conclusions
160. In order to secure the relief that he was granted by the High Court, the onus was on the respondent to establish a strong case that the decision of Mr. Gloster to place him on administrative leave was made in breach of the Braganza principles as adopted and applied by the Supreme Court in O'Sullivan v. HSE to precisely the same form of contract with which this case is concerned, or that the impugned action was in breach of the Contract. For the reasons that I have sought to explain, the arguments advanced on behalf of the respondent do not reach that threshold.
161. Even if the respondent's arguments did reach the strong case threshold, however, in my judgment the High Court judge erred, when considering the balance of justice, in failing to have sufficient regard to the interests of the appellant and, more specifically, patients in the care of the appellant. Had he done so he might well have arrived at a different conclusion as regards the orders to be made, but in any case I am satisfied that on any proper consideration of this issue, the respondent should not have been granted orders requiring the appellant to permit him to work pending the conclusion of the investigation into the care afforded to patients A.D. and A.W.
162. Furthermore, it was incumbent on the respondent to come to court with clean hands when seeking an equitable remedy. His failure to disclose both the fact that he had been charged with sexual assault and his conditions of bail in a timely manner and at the very latest when swearing his grounding affidavit constituted a serious lack of candour in respect of matters that were directly connected to the relief sought, and in the absence of any explanation at all, can only be described as egregious. For this reason alone the respondent should have been refused any of the reliefs that he sought. Moreover, this failure to come to court with clean hands is seriously exacerbated by a second breach of the same principle in presenting to the Court misleading information regarding the opportunity provided by Mr. Gloster to the respondent to make such submissions as he wished regarding Mr. Mulvany's letter to the respondent of 2nd March 2023.
163. I am mindful that since the hearing of this appeal, this Court has upheld the decision of Egan J. restraining the continuation of the Mills 1 investigation, and that this might have implications for the orders to be made on this appeal, whether in the context of the Mills 2 investigation or otherwise. Accordingly, the court will hear counsel as to the appropriate orders to be made, including any orders as to costs, and the matter will be listed at 9.30 a.m. on 10th March 2025 for 30 minutes to hear any applications or submissions the parties may wish to make.
164. As this judgment is being delivered electronically, Whelan and Burns JJ. have authorised me to indicate their agreement with it.
Result: Appeal Allowed