THE HIGH COURT
		                                       RECORD NO. 2000 NO. 4368P 
BETWEEN
MARY McKAY
			PLAINTIFF
AND
THE ADELAIDE AND MEATH HOSPITAL DUBLIN INCORPORATING
THE NATIONAL CHILDRENS’ HOSPITAL AND
COMHAIRLE NA nOSPIDEAL
			DEFENDANTS
Judgment of Mr. Justice McCracken delivered the 5th day of July, 2002.
	The first named Defendant is a body corporate formed through the amalgamation of three hospitals including the National Childrens’Hospital, which amalgamation came into effect on 1st August, 1996. 
	The second Defendant is a body set up under the Health Act, 1970, and among its functions as specified in Section 41(1)(b) are:-

“(i)	To regulate the number and type of appointments of Consultant medical staffs and such other officers and staff as may be prescribed in hospitals engaged in the provisions of services under this Act,
(ii)	To  specify qualifications for appointments referred to in sub-paragraph (1) subject to any general requirements determined by the Minister.”
	The effect of this is that if a hospital wishes to have a new Consultant appointed, it must apply to the second Defendant for approval of that appointment.  On 15th June, 1995 the Federated Dublin Voluntary Hospitals, who were the predecessors of the first Defendant, sent an application form to  the second Defendant for the post of Consultant Paediatrician in Accident and Emergency - National Childrens’ Hospital, Harcourt Street.  There was a standard form  filled in and it was stated to be a new post.  
	The second Defendant duly decided to approve the post at its meeting of 28th June, 1995.   The minutes of that meeting read:-
“4A Consultant Paediatrician in Accident and Emergency (A) - F.D.V.H.  - National Childrens’ Hospital, Harcourt Street.
It was decided to approve the appointment, on a geographical whole time basis, of an additional Accident and Emergency Consultant by the F.D.V.H./M.A. N.C.H.  based initially at the National Children’s Hospital, Harcourt Street, and subsequently at the Tallaght Regional Hospital.  It was agreed that the title of the post and the professional qualifications and experience which would apply should be the same as for the post of Accident and Emergency Consultant approved for Crumlin in August, 1988 (letter of approval for that post circulated at the meeting).”
	In due course the post was advertised by the first Defendant under a heading which read “Paediatric Accident and Emergency Consultant” .  The qualifications and experience set out in the advertisement were the same as those which had been required for the post in Crumlin in August, 1988.  
	In due course the Plaintiff applied for the Consultancy and was sent a copy of the job description as were some nine other Applicants.  The job was stated to be “post of Paediatric Accident and Emergency Consultant”  and the qualifications and experience required were those stated in the advertisement and approved by the second Defendant.  There was attached to the job description a schedule entitled “duties”, and the primary duties were stated to be:-
“To act as Consultant of the Accident and Emergency Department of the National Childrens’ Hospital and, in particular:-
To take charge of the Accident and Emergency Department at the National Childrens’ Hospital;
To examine and, if necessary treat in the Accident and Emergency Department, patients admitted and, if appropriate discharge such patients from the Accident and Emergency Department;
To admit patients over night within the Accident and Emergency Department;
To carry out medical and surgical procedures as required in the Accident and Emergency Department;
To treat patients at a clinic, within the Accident and Emergency Department, of such a nature as agreed by specialists within the hospital;
To participate in a paediatric medical on-call rota.”
	While ten persons applied for a job description in response to the advertisement, in fact only five applications were received.  Three of these persons were short listed two of whom were paediatricians.  On 29th November, 1995 the Plaintiff was notified of her appointment to the post on the basis that this was a post approved by the second Defendant.
	At the time of the appointment, the National Childrens’ Hospital was purely a Paediatric Hospital.  Since then there has been a full amalgamation of  the hospitals, which have moved to Tallaght, but the Accident and Emergency Department of the new hospital has a separate Paediatric Accident and Emergency unit and this arrangement had been envisaged in the plans to set up the new hospital.  While there is an Accident and Emergency Consultant attached to the adult unit, it was also always envisaged that the person who was appointed to that post in the National Childrens’ Hospital would continue and be in charge of the Paediatric Accident and Emergency  unit in Tallaght.
	While this case lasted some considerable time in Court, in fact there is one net issue only.  The second Defendant asserts that the post to which the Plaintiff was appointed is not the post which was approved by it, and that the inclusion in the job description of the requirement to participate in the paediatric medical on-call rota meant that the person appointed had in effect to be a paediatrician, although the approval stated that only two years satisfactory experience in acute paediatrics was required.  It is not disputed that the Plaintiff was validly appointed and her contract with the first Defendant is not in issue.  However there is no doubt that such an appointment, if it does not have approval, is not considered to be one of the same standing as an appointment to an approved post, and, if this post is not approved, the Plaintiff’s professional prospects would seriously be effected.  She is in fact performing the duties set out in the job description and has been paid at all times since her appointment.  
	At the date of the Plaintiff’s appointment by the first Defendant, the second Defendant did not exist, as the appointment of the former members had expired at the end of June, 1995 and new members had not yet been appointed.   However, the administration of the second Defendant of course continued, and in early November, 1995 the second Defendant received representations from the Irish Accident and Emergency Consultants Association objecting to the job description for the post on the basis that many of the members of that association would  not be eligible to apply because they did not have sufficient paediatric experience.  The first Defendant was aware of these representations at the time the Plaintiff was offered the post, but the Plaintiff was not so aware.  On 23rd February, 1996 the second Defendant, which by then been reconstituted, decided to write to the first Defendant pointing out that the job description altered the nature of the post approved by the second Defendant, and in due course this was communicated to the first Defendant.  The first Defendant responded to this by letter dated 19th March, 1996, following which considerable correspondence and discussions took place between the two Defendants, but unfortunately to no avail.  Even more unfortunately, neither party considered that they had any obligation to inform the Plaintiff of the discussions taking place between them, or indeed of the challenge to the approval of her post.  While it may be understandable that the second Defendant did not contact the Plaintiff, as its dispute was not with her but with the first Defendant, but I find it quite astonishing that the first Defendant kept the Plaintiff in the dark for months, and the Plaintiff only became aware of the dispute and of the challenge to her position from an article in the Irish Medical Times on 10th January, 1997.  Understandably, she was extremely upset, and she approached the Secretary Manager of the National Childrens’ Hospital, and ultimately attended a meeting with representatives of the first Defendant who assured her that the post was a proper post and fully approved and, despite her request, took the attitude that  it would fuel the flames to reply to the article in the medical press. 
	Speculation about her position had duly died down, and she continued in her post, but under the cloud of doubt.  That all came to a head again in 1998 when the Plaintiff wished to have her name placed on a register of Consultants which was being opened by the Medical Council.  For a Consultant to be placed automatically on the register, it was necessary to show the Medical Council that the Applicant Consultant had been in the post approved by the second Defendant on 31st December, 1996.  The Plaintiff duly was furnished with a letter to this  effect by the first Defendant, but on 24th July, 1998 she was informed by the Medical Council that her name did not appear on a list of approved posts as of 31st December, 1996, furnished by the second Defendant to the Medical Council.  The Plaintiff still found it very difficult to get information as to exactly what had happened, and ultimately sought such information from the second Defendant under the Freedom of Information Act. Towards the end of 1999 she sought re-instatement of her post by the second Defendant, and when this was refused the present proceedings were instituted.  I must again repeat that in my view the Plaintiff was treated extremely badly by both Defendants, who appeared to have  conducted the dispute between them with absolute disregard for the position of the Plaintiff.
	To turn to the real issue in the case, namely whether this is the same post as that which was approved, there are a number of matters which I feel are very relevant.  Firstly, it seems to me pure common sense that the first Defendant would require a person with considerable paediatric experience and, preferably a person who already was a  Consultant Paediatrician, to fill the post. This was a Childrens’ Hospital, and the type of emergencies  which might be admitted in the Accident and Emergency Department on a regular basis would differ considerably from emergencies admitted to a general  hospital, and in particular would include the admission of children with acute illnesses which would rarely if ever be seen in adults, and would require to be treated by a paediatrician.  I also feel that this must have been obvious to the members of the second Defendant when they were approving the post.
	The original application for approval of the post by the first Defendant was for a post of “Consultant Paediatrician in Accident and Emergency” , which ought to have made it absolutely clear to the second Defendant that the first Defendant wished to have a paediatrician appointed.  When the second Defendant approved the post, they approved it as the post of simply “an additional Accident and Emergency Consultant”.  They did not, however, notify the first Defendant that they were not approving the position applied for or give any explanation as to the alteration of the title of the post.
	In their resolution approving the appointment, it is recorded that it was agreed that title of the post and the qualifications and experience should be the same as that for a similar post approved for Crumlin in August, 1988, but again they must have been well aware that that post was in fact filled by a paediatrician.  I fully accept that it was a matter for the second Defendant to set out the qualifications and experience required and the qualifications set out are really basically those of a Medical Practitioner.  The experience required is set out as follows:-
“At least seven years satisfactory experience (after becoming entitled to full registration) in the practice of the medical profession including at least two years satisfactory experience in acute paediatrics; adequate experience in the application of resuscitation techniques; and at least one year’s satisfactory experience in an Accident and Emergency Department where a considerable number of children are seen.”
	These qualifications are expressed as minimum qualifications in each field.  It is the function of the second Defendant to ensure that the post it approves are filled by persons with sufficient qualifications or experience.  However, while the approval restricts the persons who may apply for the post to persons with those qualifications and experience, the actual appointment from among those  who apply is made by the first Defendant, with no input whatever to it by the second Defendant.  Quite clearly the Plaintiff has the necessary qualifications and experience set out by the second Defendant, but in my view it is open to the individual hospital making the appointment to decide what type of experience over and above the minimum requirements would be desirable for the particular post.  Whatever wording may be used in the title to the post, I think the first Defendant was absolutely correct in requiring somebody with more than the minimum experience in acute paediatrics, as the evidence is that some twenty thousand children were seen each year in the Accident and Emergency Department when the hospital was in Harcourt Street.
	The central argument which has at all times been made by the second Defendant is that the requirement that the Applicant should participate in the paediatric medical on call rota is a requirement over and above that approved by the second Defendant. This is certainly so, but the function of the second Defendant is to approve a post and set out the qualifications and experience required for that post.  When the appointment is made, the Consultant is in fact appointed on the basis of a standard contract which applies to all Consultants, with a job description which then applies to the individual post.  Indeed, one of the clauses in the standard Consultant’s contract provides at Clause 6.2 that:-
“As a Consultant, your responsibilities will include, inter alia. 
...
Discussing and agreeing a job description and, from to time, alterations to the terms of your job description with the Federated Dublin Voluntary Hospital.”
	
	The standard Consultant’s contract therefore envisages that the job description is a matter of agreement between the hospital and Consultant.  I accept that in effect the requirement that the successful Applicant should participate in the on-call rota in a Childrens’ Hospital effectively means that that person will be an experienced paediatrician, but as I have already said I am also of the view that it is perfectly legitimate for the first Defendant to require an experienced paediatrician in this post in any event.  Primarily, the Plaintiff was appointed to fulfil the post approved by the second Defendant, and in my view the person appointed to  that post must of necessity have considerable paediatric experience, whether they are to be on the on call rota or not for the hospital.  In fact, therefore, I do not think that the addition of this duty would have required any experience which was not already required  for the post itself.  In any event, under the Consultant’s common contract, it was clearly open to the Plaintiff and the hospital to negotiate immediately after the appointment to alter the job description so as to include this provision, in which case there could have been no objection whatever by the second Defendant.
	Accordingly, I will grant the Plaintiff a Declaration to the effect that the post to which she was appointed with the first Defendant is in accordance with that approved by the second Defendant.  I will discuss with Counsel the actual wording of this Declaration.
	With regard to damages, while I have very considerable sympathy with the Plaintiff, and indeed I think she was treated appallingly by both Defendants, I do not think a case for damages has been made out.  The first Defendant is not in breach of any clause of her contract, and in fact, behind the scenes, clearly battled hard to get her post approved.  As far as the second Defendant is concerned, it did  not seek to interfere with the Plaintiff’s contractual position, and in fact always acknowledged that the Plaintiff was appointed under a valid contract, and, while I think its view of the position was mistaken, I accept that it acted in good faith in the sense that it did not act in any way maliciously towards the Plaintiff personally.  It was a very unfortunate situation, and one would certainly ought not to have been run as long as it did, but I do not think that it was one which gave rise to any claim for damages by the Plaintiff.