Surgeon accused of sexual assault ‘allowed to work privately’ while awaiting trial

A consultant surgeon, who has been charged with sexual assault, cannot continue to work for the HSE pending a full court hearing, but can continue in private practice, the High Court has ruled.

Pawan Rajpal, a consultant general and colorectal surgeon in Cavan General Hospital, had sought injunctions prohibiting the HSE from continuing his administrative leave, which began in early January, and directing that he be restored to his employment.

He also sought orders restraining the HSE from taking any further steps in an investigation. Judge Martin Nolan said Mr Rajpal had worked in Cavan General Hospital for more than 20 years.

In October last year, HSE chief executive Bernard Gloster wrote to him, inviting him to take voluntary administrative leave, saying the findings of two earlier reports had raised a concern of ‘an immediate and serious risk to the safety, health and welfare of patients or staff’.

These did not concern sexual assault, but concerned two patients, one of whom died from sepsis and the other who allegedly had a cancerous tumour missed. Mr Gloster wrote again in January, pointing to 31 issues in relation to the consultant’s standard of performance, capability, competence and conduct.

Mr Rajpal was prohibited from working in any HSE hospital, HSE-funded hospital or HSE-funded clinical facility, while an investigation was carried out.

He was also excluded from the Clinical Indemnity Scheme in relation to any private clinical work, directly or through an agency, a private hospital or clinic, thereby denying him any insurance cover.

‘The effect of the letter was comprehensive,’ the judge said. ‘The plaintiff cannot work in any capacity in this jurisdiction pending the investigation.’

Judge Nolan said there had been a history of earlier litigation, which was of relevance. Last year, Mr Rajpal launched proceedings aimed at preventing the HSE from taking any steps in respect of three complaints against him, all of which he had strenuously denied. The judge said these concerned an allegation of sexual assault, the showing of CCTV footage of the alleged complainant after the alleged assault to staff, and the prescription of certain medication to him by junior doctors reporting to him.

Arising out of the matters concerned in that case, Judge Nolan said that on January 2 this year, Mr Rajpal was charged with sexual assault – before he was placed on administrative leave for the other matters.

He said bail conditions required Mr Rajpal to have no contact in any way whatsoever, directly, or indirectly, with the alleged injured party or any witnesses, and he was not allowed to travel outside Ireland except to visit his parents in Pakistan.

He said Mr Rajpal did not voluntarily disclose this criminal charge to the HSE, which learnt of it only by writing a series of letters to him.

Judge Nolan said plaintiffs must disclose all relevant factors, even if they are not in their favour. He said the HSE argued Mr Rajpal had not done this to it or to the court when applying for his suspension to be lifted, and therefore should not be granted relief.

Judge Nolan said the issues were complex, and that Mr Gloster’s investigation was flawed, particularly in his choice of an adviser. ‘On the one hand, the plaintiff [Mr Rajpal] says that by placing him on administrative leave his skill sets will be significantly affected and could… mean the end of his professional life as a surgeon. … On the other hand, the defendant [HSE] says it has a duty and an obligation to investigate serious matters which have come to its attention.’

He stated: ‘The plaintiff seeks a mandatory order. If I were to make that order, it would mean that the plaintiff would be allowed to go back to Cavan General Hospital and interact with, not only the complainant in the sexual assault allegation, but also the potential witnesses.

‘This would involve the hospital having to engage in some form of musical chairs to ensure that the plaintiff, the complainant and the witnesses were not rostered at the same time so as not breach his bail conditions. That seems to me to be going too far.

‘Had the plaintiff made full disclosure I could have considered making an order that he be allowed to return to work. But as things stand, such an order could have a very serious detrimental impact upon the criminal trial and to show my unhappiness at his lack of candour, I will not make that order.’

However, the judge said he would allow him access to the Clinical Indemnity Scheme, which would allow him to work in private practice and to continue the type of work he had been doing in Limerick, or elsewhere, if it is available.

‘This will ensure that his skill sets are maintained pending the trial of the [High Court] action,’ he said, as well as not impacting on the HSE or the criminal trial. ‘The plaintiff will be able to work but not in any of the hospitals of the defendant,’ he ruled.