Courts

UHL chief clinical director claims his administrative leave pending Aoife Johnston inquiry is unlawful

Prof Brian Lenehan does not know why a system for dealing with overcrowding in the emergency department was not implemented at the time of the 16 year old’s death, the High Court heard

Aoife Johnston (16), who died at University Hospital Limerick on December 19th, 2022.
The court heard that a fundamental finding of the Clarke report into the death of Aoife Johnston (16) was UHL’s lack of capacity, which was a significant factor in overcrowding in ED.
Tue Dec 03 2024 - 18:54

The chief clinical director of University Hospital Limerick (UHL) does not know why a system for dealing with overcrowding in the hospital’s emergency department was not implemented at the time student Aoife Johnston (16) died, the High Court heard.

Professor Brian Lenehan is seeking an injunction over a Health Service Executive (HSE) decision to put him on paid administrative leave pending an investigation for alleged serious misconduct relating to circumstances surrounding the girl’s death on December 19th, 2022.

He denies any misconduct and says the decision was reached without any actual conduct on his part having been identified. It was in breach of his contract and contrary to ordinary rationality and logic such as to be void in law, he says.

The HSE disputes the decision is unlawful. Prof Lenehan has been told he can, pending the investigation, return to working as an orthopaedic surgeon which is what he was first employed as in 2009.

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Prof Brian Lenehan, Chief Clinical Director at UHL, at the High Court. Photograph: Collins Courts
Prof Brian Lenehan, Chief Clinical Director at UHL, at the High Court. Photograph: Collins Courts

Prof Lenehan, in an affidavit, said he was part of a team which, nearly two months before Ms Johnston’s death, decided to reinstate a protocol for dealing with overcrowding in emergency by having patients taken in trolleys to hospital wards to await beds there.

This was in defiance of a policy which a HSE performance management and improvement unit had mandated in July 2022. The management unit said patients should be “boarded” or remain in the emergency department.

When the hospital’s executive management team, of which Prof Lenehan was a member, decided they would “no longer tolerate the danger of this new practice”, it was “vigorously opposed” by the nurses’ representative body within UHL, the INMO and by the HSE, Prof Lenehan said.

He and executive management team “were willing to confront both the HSE and the INMO” and explain reasons for contradicting the new mandate, he said. This was because of his firm view that their own “escalation protocol” for moving trolleys to wards “was far safer for patients than requiring all emergency patients to remain in ED no matter how crowded it became”.

Following their reimplementation of this escalation protocol, and the communication of the decision to staff, it was successfully followed on multiple occasions and in the weeks preceding Ms Johnston’s death, he said.

“Regrettably, and for reasons unknown to me, the escalation protocol was not implemented on the evening of 17th December, 2022″, he said.

He said a systems analysis report subsequent to Ms Johnston’s death was “diametrically opposed” to “boarding” patients in ED.

That was one of three reports subsequent to her death with the last one being from retired Chief Justice Frank Clarke who was retained by HSE chief executive Bernard Gloster to prepare a further report into the circumstances of Ms Johnston’s death.

The Clarke report resulted in the raising of 22 concerns which then formed the basis for an inquiry by Mr Gloster into Prof Lenehan and other senior personnel in UHL. Last September, Mr Gloster wrote to him saying he was suspended pending inquiry.

Opening Prof Lenehan’s application for an injunction on Tuesday, Lorna Lynch SC said among the grounds for saying his decision is unlawful is because his (Lenehan’s) contract does not give the chief executive of the HSE jurisdiction to impose this type of suspension on any consultant. The decision to hold an inquiry can only be taken by a hospital CEO or similar office holder, it is argued.

Counsel also said the decision to suspend on the alleged basis that he poses a serious and immediate risk to patients was done in the absence of any act or omission on his part and one that no rational or reasonable decision-maker could take.

The injunction is also being sought on the basis that Mr Gloster also said concerns about Prof Lenehan are not solely related to the death of Ms Johnston but also relate to his ongoing performance. He said none of these concerns were ever put to him in writing but yet “clearly formed part of the basis for the decision to suspend me”.

He also said that a fundamental finding of the Clarke report was UHL’s lack of capacity which was a significant factor in overcrowding in ED.

The case continues before Ms Justice Siobhan Stack.