The Court of Appeal has upheld an injunction preventing the HSE from continuing a disciplinary inquiry into consultant surgeon Pawan Rajpal at Cavan General Hospital until his legal challenge is determined.
The inquiry concerns three sets of allegations: a sexual assault allegation made by a fellow employee, alleged misuse of prescription forms and allegations concerning Rajpal’s obtaining and showing CCTV footage connected with the sexual assault complaint. The allegations remain unproven.
Rajpal denies the sexual assault allegation. He accepted asking junior doctors to sign prescription forms which he subsequently completed, while maintaining the medication was legitimately required for himself and his elderly parents. Court pleadings also record that he later admitted obtaining CCTV footage and showing it to the hospital’s clinical director, although he disputes the wider allegation concerning its use.
The central legal issue concerns the disciplinary procedure in Rajpal’s 1998 employment contract. The HSE chief executive appointed senior counsel Simon Mills to investigate and make findings of fact on the balance of probabilities.
Rajpal argues that this improperly delegates a function which his contract requires the HSE chief executive to perform. The HSE maintains that an independent investigator can establish facts because the chief executive retains the separate responsibility of deciding whether those facts amount to misconduct and whether dismissal should be proposed.
Ms Justice Butler held that this dispute raises a genuine legal question suitable for determination at a full trial. If Rajpal is ultimately correct, the defect would go to the investigator’s legal authority and could not simply be repaired later in the disciplinary process.
However, the Court of Appeal cautioned that the High Court had gone too far at the interlocutory stage by expressing definitive views that the delegation was unlawful. That substantive question remains open.
The court found the injunction was prohibitory, not mandatory, and agreed that the balance of justice favoured keeping the investigation halted. The HSE’s appeal was dismissed, with costs proposed in Rajpal’s favour subject to a stay until the underlying proceedings conclude.