By Ann O'Loughlin
The High Court has refused to grant an injunction preventing the HSE from investigating a consultant surgeon who is facing multiple allegations concerning the standard of care provided to patients.
Dr Declan Buckley, a gastrointestinal surgeon based at the Regional Hospital, Mullingar, Co Westmeath sought an injunction against the HSE arising out of a decision taken in April 2017 to place him on administrative leave with full pay.
The court heard the decision, which was a precautionary one, not a disciplinary sanction nor an indication of guilt was taken after complaints were made about the standard of care provided by Dr Buckley.
The allegations include that his delivery of care to several patients allegedly resulted in complications and poor outcomes that were above an acceptable limit.
The allegations include that some of patients with large bowel obstructions needed emergency surgery due to an alleged failure to recognise the problem and operate in a timely manner.
Dr Buckley denies all claims.
He says he had no opportunity to respond to the allegations against him and says that none of the alleged incidents had been the subject of complaints by the patients involved, nor their relatives.
He sought various orders including an injunction - to be put in place pending the outcome of the full hearing of the dispute - restraining the HSE from conducting an investigation into his practice.
Dr Buckley has not worked since being placed on administrative leave and fears for his reputation and professional standing as well as becoming deskilled.
The HSE opposed the application.
In her judgement, Ms Justice Caroline Costello said the balance of convenience favoured refusing the injunction.
The judge said the range and seriousness of complaints against Dr Buckley, and the fact they had been raised by a number of different parties, "weigh the balance in favour of refusing the injunction sought."
The Judge said Dr Buckey remains indefinitely on administrative leave since April 2017. The investigation into his alleged conduct should take place with all practicable speed, which had not happened in this case.
However, the fact was that he was a consultant surgeon in charge of a busy list who was facing "multiple allegations giving rise to very genuine concerns in relation to patient safety arising out of his practice."
The case she added could potentially have "grave if not catastrophic consequences" for persons not a party to the case.
Dr Buckley had "not contested that the allegations, if true, would give rise to a serious risk to the health safety and welfare of patients."
"This is significant as I am assessing what should happen pending the trial of the action, I cannot decide on the merits of the case," she added.
The Judge accepted that Mr Buckley had made out a strong case.
He was not afforded even a limited opportunity to respond to the allegations and he was not informed of any of the details of the complaints before he was placed on administrative leave with immediate effect.
The judge also said that damages would not be an adequate remedy for either Dr Buckley or the HSE.
The Judge said the surgeon had worked in Mullingar since 1999. Reviews of his practice were conducted by the Royal College of Surgeons Ireland in 2006 and 2009 after concerns were expressed about perceived poor outcomes for his patients.
A panel that conducted an independent review of his performance in 2011 concluded Dr Buckley had not been able to demonstrate he could function safely in an unsupervised environment, his judgement was flawed in several cases and he lacked insight.
The panel also had concerns about his knowledge and technical skill and its findings had "serious implications for patient safety."
The panel made recommendations that Dr Buckley practice was subjected to certain limitations including retraining and supervision.
However, the Judge said that while his work at Mullingar was subject to certain conditions it was alleged that he was not complying with these arrangements.
This culminated with colleagues of Dr Buckley making protective disclosures to the hospital's clinical director raising their concerns about the standard of care allegedly provided by Dr Buckley.
Dr Buckey has strongly objected to the decision to place him on administrative leave and claims he has been denied fair procedures and that the HSE has acted in breach of contract.
The case will now proceed to a full hearing of the dispute between the parties.