High Court: Employee’s mental health records to be sealed to avoid ‘unfair advantage’

Mental health records sought by an employer in proceedings brought by a suspended employee have been “sealed and placed on the court file” for use by the court in determining the appropriate remedy if the employee’s claim is successful.

The order was also made to ensure that the employer, the National Museum of Ireland (NMI), will not obtain any unfair advantage by having sight of the discovery and the documents prior to the hearing.

Ms Justice Murphy said that this “unusual form of order” was necessary and appropriate for the fair disposal of the case.

Background

Dr Andrew Halpin, an officer of the NMI and its predecessor since 1994, was suspended on full pay since February 2017.

In 2016, NMI had a new board appointed, following which there were media reports of a toxic work environment at NMI over the previous 10 years. In February 2017, two newspaper articles focused on sexual harassment allegations which had been made against Dr Halpin.

The Court heard that Dr Halpin had been found guilty of sexual harassment in 2006, and that sanctions had been impose in respect of this in 2007. The sanctions imposed were a loss of increments for 3 years, and a requirement that he undergo counselling at his own expense. Although not reported in the media, Dr Halpin was accused of sexual harassment by an intern in 2016, however the complainant in this instance declined to give evidence to investigators.

The outcome of the investigation in 2016 was that Dr Halpin was directed to have no physical contact with his colleagues beyond a normal handshake; that he was not to work alone with female colleagues/interns; that his internet access was to be withdrawn with the exception of a small number of official websites; that he was to seek professional assistance from the employment assistance programme.
It was not until after the newspaper publications in February 2017 that Dr Halpin was suspended.

At the core of Dr Halpin’s claim was his assertion that his suspension was and remains unlawful.

Proceedings brought by Dr Halpin

In March 2017, NMI decided that, inter alia, Dr Halpin should be subject to medical assessments to be supervised by a named forensic psychiatrist and a named clinical psychologist. It was also stated that NMI’s named specialists should have access to Dr Hapin’s own medical advisors.

Dr Halpin’s solicitors rejected the entitlement of NMI to require Dr Halpin to submit to psychiatric and/or psychological assessment.

In April 2017, plenary proceedings were issued in which Dr Halpin sought declaratory reliefs, injunctions, and damages.

Dr Halpin sought declarations that:

  1. Dr Halpin’s suspension is without lawful authority;
  2. NMI is not entitled to require Dr Halpin to undergo neuropsychological assessment by any clinical psychologist.
  3. NMI is not entitled to require Dr Halpin to undergo psychiatric assessment by a consultant psychiatrist.
  4. NMI is not entitled to require Dr Halpin to permit access to his own medical advisers by a forensic psychologist and clinical psychologist nominated by NMI.
  5. Dr Halpin is an employee of NMI in good standing.
  6. there are no extant allegations against Dr Halpin arising in the course of his employment or otherwise.
  7. NMI, its servants or agents are not entitled to reopen disciplinary matters that have concluded.
  8. Dr Halpin’s personnel records as an officer or employee of NMI are confidential and are not to be disclosed or referred to save for good and proper reason.
  9. NMI, its servants or agents have acted otherwise than in good faith in relation to its treatment of Dr Halpin.

Dr Halpin also sought injunctions restraining NMI from:

  1. Unlawfully suspending Dr Halpin;
  2. Denying Dr Halpin access to his work email;
  3. Requiring Dr Halpin to attend either neuropsychological or psychiatric assessment.

Application for Discovery by NMI

In the High Court, NMI made an application for discovery pursuant to Order 31 rule 12, of the Rules of the Superior courts seeking an order requiring Dr Halpin to make discovery on oath of “all documentation concerning, evidencing or relating to Dr Halpin’s mental health including but not limited to any of the following; stress; pressure; anxiety; depression and counselling under gone by him including GP and other clinicians consultant notes and reports and counselling notes to cover the period of 1st January, 2005 to date”.

Dr Halpin vehemently opposed the application for discovery of his mental health records – his counsel characterising it as a classic ‘fishing expedition’ in which NMI was trawling for information in an attempt to justify it’s wrongful decisions.

The counselling notes were not available to NMI prior to taking the decisions which Dr Halpin sought to impugn, and as such, the application was an attempt to locate evidence which would provide an expost facto justification for its actions

Decision

Justice Murphy was satisfied that the medical records touching on Dr Halpin’s mental health were neither relevant to, nor necessary for, the fair disposal of the core issue – i.e. the lawfulness of Dr Halpin’s suspension.

In defending Dr Halpin’s claim, Justice Murphy said that NMI will have to justify the actions taken on three specific dates by officers of NMI and by the board of NMI, based on the knowledge which each had at the time their respective decisions were taken.

However, since Dr Halpin had sought a perpetual injunction restraining NMI from requiring him to submit to psychiatric and psychological evaluation, Justice Murphy said it was necessary that if Dr Halpin was successful in his claim that he was unlawfully suspended – the Court would be called to exercise its discretion as to reliefs.

As such, Justice Murphy said that “if only on the basis of the principle that he who seeks equity must come with clean hands”, the Court should have these mental health records available to it.

To ensure that NMI is not given an unfair advantage “by having sight of the discovery and the documents prior to the hearing, and to avoid the possibility that NMI’s evidence on the substantive issue might unwittingly be contaminated by having sight of the plaintiff’s mental health history”, Justice Murphy directed “that the affidavit of discovery and the documents produced are to be sealed and placed on the court file”.

  • by Seosamh Gráinséir for Irish Legal News