THE SUPREME COURT
32/95
Keane J.
Murphy J.
Barron J.

BETWEEN
ELLA ERIAN AZIZ
Plaintiff
AND

MIDLAND HEALTH BOARD
Defendants
JUDGMENT delivered the 29th day of October, 1999 by Keane, J. [Nem. Diss.]

The plaintiff in this case is a registered medical practitioner who was employed by the defendants as a medical registrar in the General Hospital, Tullamore for a period of 12 months from the 1st January 1994. By letter in writing dated the 11th March 1994 from the defendants, he was informed that his employment had been terminated because of what was alleged to have been his failure to comply with a lawful instruction issued by a consultant and to report for duty on Saturday the 22nd January 1994.

On the 13th June 1994, he was given leave by the High Court to apply by way of judicial review for an order of certiorari quashing the decision to

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terminate his employment, and two earlier decisions of the 31st January 1994 and 17th February 1994 which suspended him from duty with effect from the 31st January 1994 and proposed to remove him from his office as medical registrar. He was also granted leave to apply for a declaration that he was employed by the defendants as a medical registrar and an injunction restraining the defendants from implementing the decisions to suspend him from duty and to terminate his employment. A statement of opposition having been filed on behalf of the defendants, a notice of motion was brought seeking the relief in question which was heard by Barr J who, in a reserved judgment dated the 9th December 1994, dismissed the plaintiffs application. From that decision, the plaintiff now appeals to this court.

The circumstances which led to the termination by the defendants of the plaintiffs employment with them as medical registrar were as follows. At the time he entered into his contract with the defendants, there were four grades of medical staff in the hospital, consultants, registrars, senior house officers (SHO’s) and preregistration house officers or interns. Each registrar is attached to a particular consultant and acts as his deputy in the latter’s absence. Under the rota system in operation at the hospital, the plaintiff, in common with the other medical registrars, was rostered for duty from time to time at the weekends. The plaintiff was of the view that he should not be rostered for duty unless an SHO was also rostered and that it was not an appropriate practice to

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roster him with an intern only, having regard to the comparative lack of experience of the latter category.

On the 19th January 1994, the plaintiff wrote to Dr. John Taaffe, one of the consultant physicians in the hospital, complaining of what he described as “the dangerous practice” of rostering a medical registrar without SHO cover. Dr. Taaffe wrote a reply on the 20th January advising the plaintiff to attend for the consultant ward round on Saturday morning, the 22nd January, “in accordance with registrar rota”. The plaintiff responded by a letter of the same date stating that he would be glad to be on call as a medical registrar on that day if Dr. Taaffe could confirm “adequate SHO cover”. Dr. Taffe in response handed the plaintiff a written letter as follows:-

“I note your further written communication of 21/1/94 at 11 am indicating your unwillingness to attend for Consultant Ward Round at 10 am 22/1/94 unless an S.H.O. is rostered. I have to inform you that I am communicating your decision to Hospital Administration.”

In his affidavit grounding the application for leave to apply for judicial review, the plaintiff said that he received no further communication from Dr. Taaffe or any other member of the hospital administration and that he assumed

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and understood that alternative roster arrangements had been made and that he was accordingly not required for duty on that day. He also said that on the Saturday morning he received a call on his bleep from a nurse in the coronary care unit at the hospital and that he informed her that he was not on call on that particular day.

The plaintiff attended for duty on Sunday the 23rd January and said that he understood that SHO cover was available on that date. The following day he was summoned to attend a meeting with the deputy hospital administrator, Ms. O’Callaghan. Dr. Taaffe and the two other consultant physicians attached to the hospital, Dr. Murphy and Dr. O’Connor, were also present. The plaintiff was informed by Ms. O’Callaghan that she had been advised that he had failed to report for duty as rostered on the Saturday. He was told at that meeting that a report would be submitted to the programme manager in relation to his non-attendance and that he could make a written statement to accompany the report. The plaintiff furnished a written statement setting out his position in a letter of the 24th January 1994. On the 31st January 1994, the Deputy Chief Executive Officer of the defendants wrote to the plaintiff informing him that he was being suspended for alleged misconduct in failing to comply with a lawful instruction from a consultant and failing to report for duty.

On the 3rd February 1994, the plaintiff was informed by the acting programme manager, Mr. Laurence Bane, that he was inquiring into the

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allegations against him and that he was requested to attend a meeting at 12 noon on the 7th February 1994. He was informed that he could be accompanied by a staff or union representative. The plaintiff had in the meantime himself consulted solicitors who replied to Mr. Bane stating that, as their client had no staff or union representation, he would be accompanied by a solicitor. Mr. Bane said that legal representation was not appropriate and the meeting proceeded on the 7th February in the absence of the plaintiffs solicitor, the plaintiff stating that he was only attending in those circumstances under protest. At the meeting, the plaintiff maintained his position that he was entitled to infer from Dr. Taffe’s letter that the latter was accepting that he would not be attending for duty on the Saturday morning because of the absence of SHO cover. Mr. Bane indicated that he did not accept that interpretation of the letter and it was not unreasonable or abnormal to have a registrar rostered with an intern. The plaintiff was informed by Mr. Bane that he would present a report on the matter to the Chief Executive Officer.

On the 18th February 1994, the plaintiff received a notice signed by the Chief Executive Officer of the defendants, Mr. Denis Doherty, stating that it was proposed to remove him from his office as medical registrar because of his failure to report for duty on Saturday the 22nd January 1994. The notice informed him that Mr. Doherty would consider any representations made by him or on his behalf before the expiration of seven days after the giving of the

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notice. Written representations, by the plaintiff setting out his position again in detail were sent on the 3rd March to Mr. Doherty and on the 11th March the decision of the latter was sent to the plaintiffs solicitors. It was in the following terms:-

“I have now considered the representations made by and on behalf of Dr. Aziz. I have spoken with Mr. Bane, Acting Programme Manager, and Dr. Taaffe, Consultant Physician, in relation to the instruction given to Dr. Aziz regarding his rostered requirement to attend for duty on 22nd Jan., 1994. I have read the papers on Dr. Aziz’s personal file.

I am satisfied Dr. Aziz was instructed to attend for Consultant Ward round on 22nd Jan., 1994, and did not attend.

I hereby decide to terminate the temporary employment of Dr. Elia E. Aziz for the reason that contrary to instructions he failed to report for duty on Saturday 22nd January, 1994.”

It should be noted that, in the affidavits sworn by the plaintiff and Dr. Taaffe respectively in these proceedings, different accounts are given of the

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communications between them on Friday 21st January as to the applicant’s attendance for duty the following day. The plaintiff says that he physically handed his letter of the 21st January to Dr. Taaffe, that Dr. Taaffe took the letter away to another room and shortly thereafter returned and handed him his letter in reply and that there was no discussion between himself and Dr. Taaffe when he handed him the letter. Dr. Taaffe said that he told the plaintiff that he was not in a position to alter the weekend rota, that he directed the plaintiff to attend at 10 am the following morning and that he said that there would be a competent intern on duty. He said that the plaintiff stated that he was not going to come in without an SHO being on call and that he again advised the plaintiff that he must attend the Saturday morning consultant ward round. He further said that the plaintiff demanded that he (Dr. Taaffe) should put his instructions in writing which he proceeded to do in the second letter of the 21st January. He also said that, at the plaintiffs insistence, he read the second letter to him, and that the plaintiff expressed himself satisfied and walked away with the document.

The grounds on which leave to seek judicial review were granted were that the plaintiff was denied natural justice and deprived of proper procedures in a number of respects. These included allegations that the defendants refused to allow the plaintiff to be legally represented, failed to specify the grounds of complaint against the plaintiff with sufficient particularity and failed to afford

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him an adequate opportunity of challenging the evidence adduced against him. All of these grounds were rejected by the learned High Court judge. In this court, the arguments were confined to one ground, set out as follows in the statement of grounds:-

“Further, the Chief Executive Officer acted in breach of natural justice and in particular in breach of the principle of audi alteram partem in hearing the said Mr. L. Bane as Acting Programme Manager and Dr. Taaffe as the Consultant Physician who originated the complaint in the absence of the Applicant and in apparently electing to rely upon information and accounts as given by such persons without affording an opportunity to the Applicant to be heard by the said Chief Executive Officer.

In relation to this matter, Mr. O’Doherty in the course of the affidavit sworn by him in these proceedings said:-

“I say finally that the conversation which I had with Mr. Bane and Dr. Taaffe which is referred to at paragraph 54 of the Applicant ‘s Affidavit did not add materially to my knowledge of the facts in this case and did not impinge on my said conclusions herein.”

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The learned High Court judge, having observed that there was no doubt that, in having such discussions, Mr. Doherty ran a serious risk of invalidating the proceedings, even though there was no mala fides on his part, explained the approach he was adopting to this aspect of the case as follows:-

“The fundamental question which must be addressed... is does Mr. Doherty’s conduct in having discussions with Mr. Bane and Dr. Taaffe in the absence of the applicant before deciding the charges against him give rise to a reasonable possibility that injustice may have been done to the applicant? To answer that question it is necessary to review the case as prevented by the applicant at its “high water mark” from his point of view and also to consider his depositions in so far as they may throw any light on the crucial issue of fact, i.e., whether Dr. Taaffe ‘s second letter of 21st January could reasonably have been interpreted as meaning that the consultant would arrange with the hospital administration to roster some other medical registrar in lieu of the applicant on the following day; that he so interpreted the letter and that he bona fide believed that he had been excused by the consultant from attendance on the following day. In short, on the premise alleged by the applicant that he had received no subsequent verbal

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instruction from Dr. Taaffe to attend for the Consultant Ward Round at 10 am on Saturday the 22nd January or from any one else to take up duty at the hospital that day, could he reasonably have interpreted the crucial letter as he alleges?

“I have no doubt that Dr. Taaffe’s letter could not reasonably be interpreted in the way alleged by the applicant. The use of the words ‘I have to inform you’ clearly implies a disciplinary attitude being taken by the writer who was the consultant in charge of rostering for that weekend i.e., that Dr. Taaffe proposed to inform the hospital authority about the attitude adopted by the applicant to sharing weekend rota duties with an intern doctor.”

The learned High Court judge goes on to say that in his view the true meaning and purpose of the letter was to send a “final shot across the bows” of the plaintiff warning him of serious consequences should he pursue his objection to being rostered with an intern on the following day. He was also of the view that two other factors indicated that the plaintiff probably did not interpret the letter in the way that he subsequently alleged: his failure to ensure that someone would be rostered in his place and the fact that, on his own admission, he had received a bleep from a nurse in the hospital on the

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following day. The trial judge inferred from these factors that the plaintiff was well aware that he had not been replaced but deliberately refrained from attending for duty as a protest and in deliberate contravention of Dr. Taaffe ‘s instructions.

It was accepted on the hearing of the appeal that, as had also been held in the High Court, the defendants in considering the alleged misconduct of the plaintiff were acting in a quasi-judicial capacity and were under an obligation to ensure that the procedures adopted by them were fair and in accordance with the principles of natural justice.

The learned High Court judge, however, also said that, in his view, there were two questions which should be addressed in reviewing disciplinary proceedings where a flaw in procedure and/or in the conduct of the proceedings is alleged:

“First, is the complaint well founded ? If so, does the flaw in procedure adopted by the examining body, or in the conduct of its proceedings, raise the reasonable possibility that injustice may have been done to the person under investigation?”

Having then made the observations as to the credibility of the applicant’s version of events already referred to, he expressed his conclusion as follows:-

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“Although the C.E.O. ought not to have had any communication with Dr. Taaffe, other than orally in the presence of the applicant, I accept the veracity of his deposition that this conversations with Mr. Bane and the consultant did not add materially to his knowledge of the facts in the case and did not impinge on his conclusions thereon. I am satisfied that no injustice was done to the applicant through the contact made by the C.E.O., with Mr. Bane and/or Dr. Taaffe about which complaint is made.”

I am satisfied that the learned High Court judge was in error in adopting that approach. As has been repeatedly emphasised in recent decisions, judicial review is concerned not with the decision but with the decision making process: see the judgment of Griffin J in this court in The State (Keegan) v. Stardust Compensation Tribunal [1986] IR 612. As the trial judge pointed out, there was evidence before the defendants which beyond argument entitled them to reach the conclusion that, not merely had the plaintiff failed to comply with a proper instruction from the relevant consultant and failed to report for duty, but that the misconduct in question was of so serious a nature and so potentially damaging in its consequences to the patients of the hospital that it fully justified the termination of his contract of employment. The issue in the High

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Court and again in this court, however, was not as to whether there was sufficient evidence to justify such a conclusion but rather as to whether fair procedures had been adopted in arriving at that conclusion. The issue which the defendants, acting in a quasi-judicial capacity, had to resolve was whether the plaintiff was entitled to conclude that Dr. Taaffe was accepting his non-attendance on the Saturday morning because of the absence of SHO cover, pending a review of the matter by the hospital administration. That case, however tenuous it might be, was one which the plaintiff was entitled to have considered by the defendants in accordance with accepted norms of natural justice and those norms were unfortunately not met when the Chief Executive Officer elected to have a private discussion with Mr. Bane and Dr. Taaffe in the absence of the plaintiff before arriving at his decision. Given the clear conflict between the plaintiff and Dr. Taaffe as to what happened at the crucial meeting between them on the Friday, this failure to observe proper procedures could not, in my view, be disregarded.

As I must again emphasise, the fact that there was ample evidence to justify the conclusion by the CEO that not merely had the misconduct been established but that it was of sufficient seriousness to warrant the plaintiffs dismissal did not absolve the defendants in a matter of this gravity from adhering scrupulously to fair procedures.

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I would allow the appeal and substitute for the order of the High Court an order of certiorari quashing the decision of the defendants to terminate the employment of the plaintiff. Since the contract of the plaintiff with the defendants would in any event have long since expired, no useful purpose would be served by remitting the matter to the defendants for reconsideration by them or by granting any of the other reliefs sought.