Five Aras Attracta staff get injunctions halting HSE investigation

A High Court judge has granted injunctions to five psychiatric nurses at the Health Service Executive (HSE)'s Aras Attracta facility in Co Mayo restraining the HSE proceeding with an internal investigation into complaints against them.

The HSE is also restrained embarking on any further investigations unless they comply with its ‘trust in care’ and disciplinary procedures.

The orders are likely to affect twelve other Aras Attracta staff subject to the same investigation.

The injunctions apply pending the outcome of the full legal challenge by the five alleging the investigations breach their contractual rights.

The HSE had displayed a "reprehensible" attitude to the efforts of the nurses trade union, the Psychiatric Nurses Association (PNA), to resolve internally "serious issues" concerning conduct of the investigations, Ms Justice Deirdre Murphy said.

Among the issues raised was the HSE’s failure to consult with the association about the makeup of a four member investigatory team formally established last March. The nurses had made out a strong case the right to be consulted was “of real substance” and part of agreed procedures the HSE could not depart from at a “whim”.

The HSE made clear it would not accept any changes to the membership of the investigation team and refused to participate in procedures before the Labour Relations Commission as sought by the trade union, she also noted.

The HSE had argued serious claims about the entire service provided at Aras Attracta required it to move speedily, she said. The court “fails to understand” why the seriousness of the issue required the HSE to depart from agreed procedures when there should be strict adherence to the procedures in precisely those circumstances.

There was no response for three months to inquiries put by the PNA to senior HSE personnel, she noted. The HSE had had four months from the first contact to reach agreement on composition of the investigation team but did not do so.

The five, she ruled, had made out a strong case the ‘trust in care’ and disciplinary procedures form part of their contractual rights which were interfered with.

The five — Lyndsey Conway, Carmel Doherty, Mary Prendergast, Vidhya Maverly and Marie Kilcoyne — are among 17 Aras Attracta staff being investigated arising from complaints concerning matters featured in undercover filming by a reporter with RTE investigations unit in 2014 of events at the facility, which caters for adults with intellectual disabilities.

In her ruling on Friday, Mr Justcie Murphy found the five had made out a strong case, damages would not be an adequate remedy and the balance of justice was significantly in favour of the injunctions.

The five will remain suspended on full pay pending the outcome of the full legal challenge.

None of the five are subject to any criminal proceedings.

In her ruling, Ms Justice Murphy noted similar concerns about the nature of the investigations were expressed to the HSE by the other 12 affected staff.

The judge said all sides agreed events portrayed in the RTE investigations unit programme gave rise to serious public disquiet, needed to be investigated to establish responsibility for “apparently cruel and inhumane treatment” and gave rise to possible disciplinary procedures and sanctions.

The HSE accepted it had not followed the procedures laid down in the ’trust in care’ and disciplinary process and that was “the core of the dispute”, she said.

The HSE argued there was a “mere technical breach” and the balance of convenience favoured allowing the investigation proceed given the work done to date, including reviewing 190 hours of film footage over 680 hours, and the experience of the investigators.

The five had a strong case of breach of contractual entitlements, she held.

The complaints against them to date were of “potentially abusive interactions” which empower actions up to and including inevsigations, she said. Because the HSE had failed to identify precise complaints warranting invocation in this case of the most serious stage of its disciplinary procedures, it was “impermissible” to run an investigation under that procedure “just in case something might turn up”.  That could lead to “serious unfairness”.

It was entirely appropriate, sometime before December 2014, for the HSE to appoint a review group to investigate events at Aras Attracta, she said. However, that review appeared to have “morphed” in March 2015, without agreement of the five or their union,  into an investigation and it appeared unwise to permit the latter make complaints against any of the five.

The judge also did not accept the five would not be prejudiced if subject to a flawed investigation process. They had a strong case they were not given their full rights and the interests of Aras Attracta clients would not be prejudiced by giving them their contractual entitlements, she held.