High Court refuses injunction to stop HSE investigating consultant surgeon

The High Court has refused to grant injunctions 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 injunctions 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 was a precautionary one, not a disciplinary sanction nor an indication of guilt, and was taken after complaints were made by colleagues about the standard of care provided by Dr Buckley.

The allegations included that his delivery of care to several patients resulted in complications and poor outcomes above an acceptable limit.

They also included claims some patients with large bowel obstructions needed emergency surgery due to a failure to recognise the problem and operate in a timely manner.

It is further alleged other patients had their spleens removed, which was not planned, and there was a sub-optimal level of care provided by him in several non-operable cases.

Dr Buckley denies the claims.

He says he had no opportunity to respond to the allegations and also 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 injunctions, to apply pending the full hearing of the dispute, restraining the HSE 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.

‘Catastrophic consequences’

In her judgment, 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.”

Noting Dr Buckley remains indefinitely on administrative leave since April 2017, she said the investigation into his alleged conduct should take place with speed.

The fact is 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 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 Mr Buckley had made out a strong case.

He was not afforded even a limited opportunity to respond to the allegations and not informed of any of the details of the complaints before he was placed on administrative leave with immediate effect.

The judge also said damages would not be an adequate remedy for either Dr Buckley or the HSE should they win at trial.

She noted the surgeon had worked in Mullingar since 1999. Reviews of his practice were conducted by the Royal College of Surgeons in Ireland in 2006 and 2009 after concerns were expressed about perceived poor outcomes for his patients.

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 judgment was flawed in several cases and he lacked insight.

The review also had concerns about his knowledge and technical skill and its findings had “serious implications for patient safety.”

It recommended that Dr Buckley’s practice be subjected to certain limitations including retraining and supervision.

However, while his work at Mullingar was subject to certain conditions it was alleged that he was not complying with these arrangements, she said.

This culminated in colleagues of Dr Buckley making protected disclosures to the hospital’s clinical director raising their concerns about the standard of care allegedly provided by Dr Buckley.

Dr Buckley has strongly objected to the decision to place him on administrative leave and claims he has been denied fair procedures and the HSE has acted in breach of contract.

The case will now proceed to a full hearing.