THE HIGH COURT
			2002 No. 98P
BETWEEN 
CELINE TRAYNOR 
			PLAINTIFF
AND 
JOHN RYAN
			DEFENDANT
JUDGMENT of Mr. Justice McCracken delivered the 17th day of July, 2002.
	The plaintiff is a Consultant Anaesthetist and holds that appointment in St. James’Hospital and Coombe Woman’s Hospital in Dublin under a contract dated 4th February 1998 in the form commonly known as the consultants common contract.  These proceedings only concern her appointment to the Coombe Woman’s Hospital, and the plaintiff seeks a series of declarations relating to disciplinary proceedings taken against her.  The defendant is the Secretary/Manager of the Coombe Woman’s Hospital.
	Appendix IV of the plaintiff’s contract deals with disciplinary procedure.  The preamble to the appendix states:-
“The purpose of the disciplinary procedure is to ensure that complaints concerning the competence, capability or conduct of consultants will be dealt with in a manner which has due regard to the rights and obligations of the parties.  Where a complaint concerning a consultant is considered under this procedure it shall be dealt with expeditiously while affording the consultant adequate opportunity to reply to any complaint or allegation made against him.  The consultant shall be entitled to be represented at all stages of the procedure should he so desire.”
	The procedure set out distinguishes in a number of ways between a health board hospital and a private hospital.  The Coombe Woman’s Hospital is a private hospital, and therefore in considering elements of the disciplinary procedure, I only propose to cite the portions relevant to a private hospital.  The relevant portion of paragraph one reads:-
“Where the Chief Executive Officer, Secretary/Manager of a hospital or some other person authorised by him of a hospital not being a health board hospital hereinafter called “the appropriate person”is concerned that a consultant may have failed to comply with any of the terms of his appointment or may have otherwise misconducted himself in relation to his appointment, he shall notify the consultant in writing of the reasons for such concerns and inform him that any representations in regard to the matter may be received by the Chief Executive Officer or the appropriate person, as the case may be, from the consultant within two weeks of the issue of the notification and will be considered.”

	Paragraph two relates to a complaint relating to an individual living patient and paragraph three provides for the Chief Executive Officer or Secretary/Manager of a hospital to suspend a consultant on full pay for such time as may reasonably be necessary for the completion of any investigation into the conduct of the consultant.
	Paragraph four, which is central to the present proceedings, reads:-
“The Chief Executive Officer of a health board, Chief Executive Officer, Secretary/Manager of a hospital or other health agency or the appropriate person, after consideration of any representations which the consultant may make in regard to the matter, and after carrying out such further examination into the matter as he considers necessary may:-
(a) if he is satisfied that the matter was trivial or without foundation, so inform the consultant in writing, or 
(b) if he is satisfied that the consultant had not complied with the terms of his appointment or had otherwise misconducted himself in relation to his appointment, and if he thinks fit, issue a warning or other like communication to the consultant, or 
(c) where he is the Chief Executive Officer of a health board, decide to act in accordance with the provisions of Sections 22, 23 and 24 of the Health Act 1970 and the Regulations made thereunder, or
(d) where he is not the Chief Executive Officer of a health board, decide to act by way of the following analogous provisions.”

	The appendix then goes on to set out the procedure to be followed under paragraph 4(d), which involves a request to the Minister for Health to appoint a committee to enquire into the matter.
	Pursuant to paragraph one of the disciplinary procedure, by letter dated 21st June 2001 the then acting Secretary and General Manager of the hospital wrote to the plaintiff informing her of concerns arising from five written complaints from some of the plaintiff’s colleagues and a sixth verbal complaint which was subsequently made in writing.  That letter also required the plaintiff to take administrative leave with pay with immediate effect and notified her that an investigation in accordance with the disciplinary procedure would take place.  The procedure envisaged was set out in the letter as follows:-
“This investigation will take place with all practicable speed and shall be conducted in the utmost confidence.  You are entitled to make representations in relation to these matters.  It is envisaged that there will be a further examination of the complaints, at which stage the hospital will write to you inviting you to attend a meeting.  At this meeting you will have the opportunity to make further representations.  You should be aware that you will be furnished with the relevant evidence in relation to the allegations prior to this meeting.   
I would remind you that you are entitled to be represented at all stages of the procedure should you so desire.”

	On 25th September 2001 the plaintiff issued proceedings against the defendant under record number 2001 No. 14308P and subsequently brought a motion seeking interlocutory relief including inter alia an injunction restraining the purported disciplinary proceedings.  The interlocutory proceedings were settled on 20th November 2001 on the following terms:-
“1. Strike out motion.
2. Reserve costs.
3. Dr. Traynor to furnish statement forthwith to Mr. Ryan.
4. If Dr. Traynor wishes to furnish further statements, will do so within 48 hours.
5. Dr. Traynor will attend the meeting with Mr. Ryan (solicitor and, if necessary, senior counsel in attendance) to make whatever oral representations she wishes and to answer questions posed by Mr. Ryan.
6. Within seven days of the latest of the above (5) absent force majeure or by agreement Mr. Ryan will issue his decision.
7. If the decision is within (a) or (b) of Appendix IV paragraph 4 administrative leave terminates.
If the decision is to refer to a committee pursuant to the agreed procedure reasons will be given in writing by Mr. Ryan at the time he gives his decision.
8. This is in settlement of the INT.INJ.app only and the parties reserve absolutely all other rights.”

	At this stage the plaintiff had been furnished with a considerable amount of documentation, largely consisting of reports which had been requested by the defendant from other members of the staff involved in the six incidents.  In the interlocutory proceedings a large number of affidavits had been filed on both sides and the parties were very well aware of the disputes involved.  In due course, pursuant to the settlement, the plaintiff furnished the defendant with a lengthy statement on 20th November 2001, and an interview took place on 29th November 2001 between the plaintiff and the defendant, at which the plaintiff was represented by solicitor and senior counsel.  At the outset of that interview, senior counsel for the plaintiff made two points.  Firstly, he raised the issue that the disciplinary procedure only dealt with complaints, and contended that in five of the six matters there had been no complaint made.  He stated, however, that the plaintiff was willing to proceed in any event, reserving the plaintiff’s rights to raise this point again after a decision had been made.  The second preliminary matter raised on behalf of the plaintiff was that under the terms of the statutory scheme only the defendant could make the decision, and that he was not entitled to consult with anybody in respect of the decision.  The defendant then proceeded to question the plaintiff for a considerable period, going through each of the issues raised against her.  At the end of the questioning the defendant asked the plaintiff if there was anything else she wished to add and the plaintiff made some comments before the meeting ended.
	Again in accordance with the settlement, the defendant gave his decision in writing on 6th December 2001.  In that decision he dealt with each of the six complaints individually, setting out the basic evidence that he had received and making findings and decisions.  In each of these findings he held that there had been a complaint, and in five of the six cases he held that the complaint was justified.  At the end of what was a 22 page document he summarised his decision as follows:-
“1.  Although I have only quoted limited excerpts from the evidence I have taken into account all of the evidence in reaching my decisions.
2. In relation to the complaints set out above,  I have upheld complaints one, two, three, five and six.  I am satisfied that Dr. Traynor has misconducted herself in relation to her appointment with the Coombe Woman’s Hospital.  Having regard to the seriousness of the totality of Dr. Traynor’s conduct as set out and found by me in these complaints I do not think that a warning would be sufficient in the circumstances.  I have therefore decided on foot of paragraph 4(d) of the agreed disciplinary procedure to refer the matter to the Minister for Health and Children under paragraph 5(1) with the request that the Minister appoint a committee to enquire into the matter.”

	In these proceedings the plaintiff seeks a number of declarations the effect of which would be to quash the defendant’s decision.  I would emphasise, and it is fully accepted by the plaintiff, that this is not an appeal from the findings of the defendant, but rather is concerned with the procedures followed, and is comparable to judicial review procedures.  As I am only concerned with these procedures, I do not propose to comment on the decisions in the individual cases anymore than is necessary.
	The first point I will deal with is whether there were “complaints” against the plaintiff, and the extent to which formal complaints were necessary to give jurisdiction to the defendant.  There is no doubt that, except in the first case, there was no formal complaint using those terms, nor was there any request for disciplinary procedure.  What does exist are statements correspondence and reports by other members of the staff of the hospital and minutes of meetings between the defendant and some of these members of the staff.  
	I think it necessary to quote some of the remarks made in reports from the plaintiff’s colleagues.  In relation to case two Dr. Galimberti, an Assistant Master of the hospital, ended her report by saying:-
“I found Dr. Traynor’s manner very aggressive and I was upset after our conversation.  It was very difficult for me to continue working after this discussion, and I think that Dr. Traynor’s intervention was inappropriate and unprofessional.”

	In relation to case three Dr. Michael Carey wrote to the Master of the hospital saying:-
“At around 10.30 while in St James’ Hospital I received a phone call from Dr. Traynor who basically objected to my coming in on her night on call.  Unfortunately the tone of the conversation was one of unprecedented personal abuse directed towards me.  Some of the phrases alluded to the fact that I was “power hungry” I was “part of a cartel”, that she “knew more about anaesthetics than me.”
 She ended the conversation by saying that she was reporting me to you and the IHCA.  
I have never experienced a verbal assault like this before and I feel the experience has somewhat damaged our professional relationship.”

	In relation to case five there was a report by Dr. Darcy, Consultant Obstetrician, who stated that:-
“Dr. Traynor asked me as to why the patient was having a general anaesthetic to which I replied neither I nor the registrar requested this but that I would be prepared to discuss it later after the procedure was completed.  While asking the registrar as to how she was going to undertake insertion of the Mirena, she indicated to me that as the patient was now anaesthetised she would routinely examine the uterus, sound the cavity, dilate the cervix as necessary and gently obtain a biopsy prior to insertion of the coil.  Dr. Traynor then expressed concern that the patient was having a procedure under general anaesthetic for which she was not consented.
	I took the decision to proceed however given that the patient had given full consent for the insertion of the Mirena coil.  Dr. Traynor then accused me of undertaking a D & C without consent.  I informed her that it was standard practice to measure the length of the uterine cavity, dilate the cervix, and if appropriate, sample the uterine cavity before insertion of the coil.
	She refused to accept this at which time I told her that I would be prepared to discuss it with her after the operation was completed and that I would be responsible for whatever surgical process was necessary in order to ensure that the procedure was undertaken safely.
	Dr. Traynor then again questioned the registrar as to what she was about to undertake at which point I told Dr. Sheridan to perform the procedure as she had explained to me.”

	In relation to the sixth case, which again concerned a procedure been carried out by Dr. Darcy, in which there was a problem in that the patient was not being oxygenated, Dr. Darcy said in his report:-
“Following completion of the caesarean section I discussed with Dr. Traynor what the cause may have been for this problem.  She indicated that the oxygen line leading to the anaesthetic machine had become disconnected.”

	In a subsequent interview with the defendant it was recorded that:-
“Dr. Darcy concluded that Dr. Traynor’s behaviour as outlined was unacceptable to him and that in his opinion the standard of care was below an acceptable standard of patient care.  Dr. Darcy also stated that in his opinion this incident also impacted badly on the working environment in theatre.”

	While these matters may not have constituted formal complaints, there is no doubt that the doctors concerned were complaining in the ordinary sense of the word about the plaintiff’s behaviour.  In my view the disciplinary procedure does not envisage a mandatory formal complaints procedure.  Paragraph one of the appendix, under which the disciplinary procedures are commenced, provides that the appropriate person should be “concerned” that a consultant may have failed to comply with the terms of his appointment or otherwise misconducted himself and should notify the consultant of the reasons “for such concerns”.  It does not provide that the appropriate person can only act on a formal complaint, and on the contrary, by use of the words “concerns” seems to me to imply that the basis for the initiation of the disciplinary procedure may arise from various sources.  These sources seems to me to be in keeping with the logic of the entire procedure, as the purpose of this procedure is not to consider complaints of professional misconduct, which is done by the medical council, but to consider whether the consultant is in breach of any of the terms of the contract or “may have misconducted himself in relation to this appointment.”  It is noteworthy that what appears to have been at issue in many if not all of these cases is the behaviour of the plaintiff towards her colleagues.  I have no doubt that there were sufficient matters of concern to justify the commencement of the disciplinary procedures in each case.
	The next issue between the parties is that the plaintiff claims that the defendant, who is not medically qualified, was in effect making decisions in relation to medical competence, and indeed making findings of misconduct against the plaintiff in this regard.  I should say at the outset that it was not a function of the defendant to make findings of misconduct, his function only was to determine whether the case should go before a committee of inquiry.  However, particularly under the terms of the settlement of the earlier proceedings, the defendant was required to give reasons for his decisions, and in his conclusion he stated that “I am satisfied that Dr. Traynor has misconducted herself in relation to her appointment”.  I would not consider this to be a finding of misconduct in the sense that it has any validity any such, but it is an expression of the defendant’s opinion upon which he based his decision.  It is of course for the committee of inquiry to find whether there has been misconduct, and not for the defendant, but a valid reason for considering there should be a committee of inquiry is that the defendant himself was of the view that there was misconduct.
	With regard to the complaint that the defendant has no medical knowledge, this was of course known to the parties at all times, and indeed it should be said that few if any secretary/managers of private hospitals have any medical qualifications, much less do Chief Executive Officers of health boards.  It was clearly envisaged by the common contract that persons holding these positions would in fact make decisions relating to the conduct of consultants in hospitals.  All that the defendant does under the common contract is to decide that a committee should be appointed which would consist of persons some, if not all, of whom would undoubtedly have medical qualifications.  It was also suggested that the defendant should have in some way consulted independent medical experts before reaching his decision.  I think it probably would have been open to him to do so under the disciplinary procedure, as he is entitled to carry out such further examination into the matter as he considers necessary, but there is certainly no obligation on him to do so.  In the present case, such a course was not suggested to him at the interview, nor indeed was any objection taken that he had no medical qualifications, and as it was agreed in the settlement that he would produce a decision with reasons within seven days, I do not think it can be possibly have been contemplated at that time by the parties that he would consult any further.  Indeed the whole interview took place on the basis that the plaintiff had been aware of all the matters and evidence considered by the defendant.
	The final, and most serious, point made by the plaintiff is that the defendant was bound to conduct his investigations in accordance with fair procedures, and that he had not done so.  While there was some argument before me as to whether this was in the nature of a public function, in my view the authorities certainly support the plaintiff’s submission that fair procedures must be observed, and I do not think that the distinction between a public hospital and a private hospital is of any great relevance.  While most of the case law is concerned with public law situations, I certainly think the principles are largely applicable to the present situation.  I think this view is supported by the decision of the Supreme Court in O’Neill -v- Beaumont Hospital Board (1990) ILRM 419, which concerned somewhat different procedures under the common contract and in which Finlay C.J. said at p. 437:-
“I am firstly satisfied that the requirements for the carrying out of certain functions which arise in various aspects of the law in accordance with natural or constitutional justice apply to the function which was undertaken by the board of the hospital in this case under the terms of the contract.  They do not apply co-extensively and identically with the requirements of natural justice which may apply to certain forms of independent tribunals or Courts.”

	The Chief Justice then went on to deal with the particular facts of that case, but the statement I have quoted does it make clear that the requirements of natural or constitutional justice may differ according to the circumstances.  In the present case the matter being decided by the defendant was a preliminary enquiry to determine whether there should be a full enquiry by a committee set up by the Minister for Health and Children.  The situation was very similar in O’Ceallaigh -v- An Bord Altranais (2000) 4 I.R. 54 which was concerned with the decision of the fitness to practice committee of the defendant that there was a prima facie case for holding an inquiry pursuant to Section 38 of the Nurses Act 1985.  Hardiman J in his judgment in the Supreme Court said at p. 130:-
“In considering whether the board ought to have notified Ms. O’Ceallaigh of the complaints in this case it is instructive to consider the role and purpose of the preliminary enquiry.  It is clearly a filtering process designed to avoid unnecessary enquiries.  There are manifest benefits to this from the point of view of both the board and its fitness to practice committee and of the nurse involved.  From the latter’s point of view an inquiry involves great expense, disruption of her practice (even apart from the Section 44 orders), distress and anxiety.  It is also likely to involve, and in this case did involve, knowledge of the complaint coming to the attention of various persons in the medical and midwifery professions and indeed the general public.  It is pointed out by the Privy Council in Rees -v- Crane (1994) 2 A.C. 173 that knowledge of the fact of a complaint may damage the subject of it, and specifically confidence in him or her as a professional person, in a way which may not be entirely repaired even by a successful outcome to the full hearing.  Though the applicant in that case was a judge, obliged to sit in public, the opinion of Lord Slynn makes it quite clear that such damage can be incurred by other professionals as well.  
	I cannot see, that in the circumstances of this case, the board would have suffered any impairment to its ability to discharge its statutory functions by notification of the complaints of the 16th May or the 26th June 1997.  It would have been perfectly entitled to require any answer within a reasonable time.  Indeed, if Ms. O’Ceallaigh’s answer to the second complaint is the very basic one that she was not the midwife in charge of the case and was not responsible for the plan to have a home a delivery, very little time would be required to make that point.
	I believe that in all the circumstances that Ms. O’Ceallaigh was not treated fairly in relation to the Section 38 decision to hold enquiries.  She ought to have been told about the allegations made to the board and given the chance to deal with them - not necessarily by oral hearing but in whatever way was necessary for her reasonably to make her reply.”

	In the present case the plaintiff was given notice of all allegations against her.  She was given copies of all statements and transcripts of all evidence given to the defendant.  By the settlement, presumably after considerable discussion between the parties, she agreed to furnish her statement forthwith to the defendant.  She agreed that if she wished to furnish further statements she could so within 48 hours, and that does not appear to be limited to statements by the defendant herself.  She attended a meeting with the defendant accompanied by her solicitor and by senior counsel at which she made no allegation of unfair procedures.  She made no request to be present when other witnesses were interviewed by the defendant, nor to cross examine them.  She made no request for other witnesses to be interviewed by the defendant.  
	I think it is also very relevant that the procedures followed were those set out in the common contract, and therefore were procedures which she had accepted at the commencement of her employment to be proper procedures in disciplinary matters.  I think the procedures followed were absolutely fair in relation to a preliminary hearing of this nature, and I think that the procedures were accepted by the plaintiff in the settlement as being fair.  
	The final point raised by the plaintiff is that the findings of the defendant were unreasonable.  I would emphasise that this is not an appeal from the findings of the defendant, and if there was evidence which the defendant could accept to support his findings, then they cannot be set aside.  The defendant in fact had a large body of evidence in the form of statements, transcripts of interviews and affidavits in the earlier proceedings.  He was not making a final judgment as to whether there was or was not misconduct on the part of the plaintiff, he was only determining whether her conduct should go before a committee to be considered by it.  There was certainly ample evidence, which if accepted by the committee, would show misconduct on the part of the plaintiff.
	A rather bizarre argument has been made before me that in effect the plaintiff was entitled to assume that the defendant would find in her favour.  This seems to me to be quite untenable in the light of the terms of the settlement which expressly envisages at paragraph seven that there may be a decision by the defendant to refer the matter to the committee.  The plaintiff appears to consider that if the defendant was going to take this course of action, he ought to have indicated it to her in advance, presumably with a view to her making further submissions.  However, that clearly was not part of the agreement between the parties at the time of the settlement, and I think it is quite unreal to suggest that at the time of the interview there was some obligation on the defendant to decide there and then that he did not accept the plaintiff’s evidence or statements.  The plaintiff in fact gave lengthy evidence at the interview, and the purpose of allowing seven days for the decision was clearly to permit the defendant to consider the other statements and interviews in the light of the plaintiff’s response.  This he could only do by reserving his decision and giving due consideration to the various aspects of the case.
	Accordingly, I am quite satisfied that fair procedures were followed, and furthermore that those were procedures which had been agreed to in advance by the plaintiff.  I will dismiss the plaintiff’s claim.