The Court of Appeal has set aside the High Court’s interim orders allowing an anonymised consultant surgeon to return to work at HSE hospitals other than Hospital X while the HSE investigated concerns about his care of two patients. The appeal court said the surgeon had not established the strong case required for the relief and that the balance of justice favoured refusing it. It also found that his failure to disclose a sexual assault charge and bail conditions, and a misleading presentation of a meeting transcript, meant he should have been refused equitable relief.
The judgment, delivered by Mr Justice Binchy on 28 February 2025, concerns the HSE’s decision on 3 January 2024 to place the surgeon on paid administrative leave pending an investigation into matters arising from systems analysis reviews of patients identified as A.D. and A.W., as well as matters already referred for investigation. The surgeon denies shortcomings in his care of the patients and maintains that others were responsible.
The High Court had found that the HSE chief executive’s consultation with a clinical director who had complained about the surgeon tainted the decision. It ordered the HSE to restore the surgeon to work, except at Hospital X. The Court of Appeal held that the High Court had conflated the role of the decision-maker with that of the person consulted. It said the contractual test applied to the chief executive’s decision, and that the prejudicial information disclosed during consultation did not, by itself, establish a strong case that he had relied on extraneous considerations. The surgeon’s contract argument about who should be consulted where no Medical Board or equivalent structure existed raised a fair issue for trial, but did not meet the strong-case threshold for interim relief.
The appeal court also found the High Court had not adequately weighed patient safety against the surgeon’s concerns about losing skills and reputation. The reviews identified inadequate care in both cases, though the surgeon disputed responsibility. The court said the risk to patients and the possibility of harm that could not be remedied outweighed the concerns advanced in support of the injunction at this stage.
The surgeon had been charged on 2 January 2024 with sexual assault of a staff member. His bail conditions prohibited contact with the alleged injured party and witnesses, and required him to surrender his passport. The appeal court said he had not disclosed the charge or conditions to the HSE or in his affidavit supporting interim relief, and had not explained the omission. It also found that his affidavit’s selective quotation of a meeting transcript was misleading about the opportunity he had been given to respond to a letter from a previous HSE chief executive.
The court rejected the surgeon’s cross-appeal, which challenged, among other things, the use of earlier matters, the adequacy of notice, the age of the patient-care events and the basis for the HSE’s concerns. It did not make final orders on the appeal: because of developments in a separate investigation, it directed that the parties be heard on the appropriate orders, including costs, on 10 March 2025.