The Health Service Executive (HSE) has been refused an appeal to the Supreme Court in a case it says raises “significant issues” over its ability to take disciplinary action against consultant doctors employed under an old contract.

On appeal, the HSE argued that 227 consultants are still employed under the contract affected by proceedings brought by a colorectal surgeon based at Cavan General Hospital as part of an investigation into allegations made against him.

The Supreme Court refused to hear the appeal as it said it concerned pre-trial decisions and the main case brought by the doctor was expected to be heard by the High Court soon. The court may reconsider any potential application to appeal any conclusive decision made in the full High Court case.

The HSE investigation stemmed from an internal complaint made by a member of staff about assault against Dr Pawan Rajpal, who has worked in Cavan for more than 20 years, the court heard. Later, allegations were made regarding prescriptions allegedly signed by non-consultant hospital doctors reporting to him.

Dr. Rajpal, who is on administrative leave from the hospital, strongly denies any wrongdoing.

By obtaining a pre-trial order restricting the investigation, Dr. Rajpal was found to have raised a “fair issue to be tried” at a full hearing of his trial.

The question is whether Dr Rajpal’s 1998 contract, which is similar to the contracts under which 227 consultants are still employed, requires that any finding of misconduct or a proposal for dismissal be made only by the director general of the HSE.

The Court of Appeal said last July that it was not appropriate to reach a conclusion, at this pre-trial stage, on the extent to which it was permissible for the Director General of the HSE to delegate his function as establishment of the facts in the investigation to an independent investigator. . That should be decided in a full hearing, he said.

The HSE says the chief executive exercised his discretion in initiating an investigation by an independent person. He claims it was impractical for the CEO to personally investigate and draw conclusions about the facts in every case containing allegations.

Shortly after the High Court judgment last February, the HSE placed Dr Rajpal on administrative leave. The consultant then initiated separate proceedings in the High Court to obtain a further pre-trial injunction to facilitate his return to work at the hospital, but this was refused.

In asking the Supreme Court to hear an appeal against the Court of Appeal’s decision, the HSE argued that the judgment posed problems for its management and had implications for disciplinary proceedings in a wide range of jobs.

He argued that the court was wrong to conclude that the question of the delegation of his functions by the chief executive amounted to a “fair question to try”, which constitutes the threshold for granting the injunction obtained by the Dr Rajpal.

Dr. Rajpal opposed the appeal request. He argued that an appeal would be premature, given that the lower court rulings concern a pretrial injunction.

Refusing the HSE’s request, three Supreme Court judges said there was no reason why the full High Court hearing should not be held in the near future. The judges said the HSE could fully present its case at this trial, so there was no need to allow an appeal of pre-trial judgments to the highest court.

An appeal of a pre-trial order may not lead to a definitive answer on the interpretation of the relevant laws and the contract, Justice Peter Charleton, Justice Maurice Collins and Justice Aileen Donnelly said.