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An Bord Altranais v. O'Ceallaigh [2000] IESC 21; [2000] 4 IR 54 & 102 (17th May, 2000)
THE
SUPREME COURT
No. 127,
131 &225 of 1999
Denham,
J.
Murphy,
J.
Barron,
J.
Hardiman,
J.
Geoghegan,
J.
BETWEEN
AN
BORD ALTRANAIS
APPLICANT/APPELLANT
AND
ANN
O’CEALLAIGH
RESPONDENT
[Judgments
by Denham, Murphy and Barron JJ.; Hardiman and Geoghegan JJ. agreed with Denham
J.]
Judgment
of The Hon. Mrs. Justice Denham delivered the 17th day of May, 2000
1. This
is an appeal by An Bord Altranais the applicant/appellant (hereinafter referred
to as the applicant) from a judgment of the High Court, Morris P., delivered
ex
tempore
on the 18th May, 1999. It was submitted on behalf of the applicant that the
President erred in his interpretation of section 44(1) of the Nurses Act, 1985.
At issue is a point of law.
2. There
has been extensive litigation between the parties. In special summons
proceedings the applicant applied for an order pursuant to section 44 of the
Nurses Act, 1985 (hereinafter referred to as the Act of 1985) which effectively
sought a suspension of Ann O’Ceallaigh, the respondent (hereinafter
referred to as the respondent) from practising as a midwife. An order was
originally granted
ex
parte
by Costello P. on 1st August, 1997. The applicant claimed:
“1.
An Order pursuant to
Section 44 of the
Nurses Act, 1985 (“the
Act”) directing that pending the outcome of an Inquiry or Inquiries under
Part V of
the Act in to the Fitness of the Respondent to practise nursing and
the outcome of any consequent application to this Honourable Court arising out
of the said Inquiry or Inquiries the registration of the Respondent’s
name in the Register of Nurses maintained by the Applicant under Part III of
the Act or in the Midwives division of the said Register shall not have effect.
2.
An injunction restraining the Respondent from engaging in the practice of
nursing (including midwifery) until after the outcome of the Inquiry or
Inquiries and applications referred to at paragraph 1 above pending further
Order.”
3. The
order of Costello P. on 1st August, 1997 stated:
“It
is ordered pursuant to
section 44 of the
Nurses Act, 1985 that the registration
of the name of the respondent in the register of nurses maintained by the
Applicant under Part III of the said Act or in the Midwives division of the
said register shall not have effect until after Wednesday the 13th day of
August, 1997 or until further order in the meantime.
And
it is ordered that the respondent be restrained until after Wednesday the 13th
day of August, 1997 or until further order in the meantime from engaging in the
practice of nursing (including midwifery).
And
it is ordered that the Special Summons herein be made returnable before this
Court (the President) on Wednesday the 13th day of August, 1997.”
4. Liberty
was given to inform various persons, and it was then stated:
“And
it is ordered that the Respondent be at liberty to apply to set aside or vary
this Order on 24 hours notice in writing to the Applicant.”
5. There
have been many court hearings on this and related proceedings. Morris P.,
(unreported, High Court, 18th May, 1999) described the situation thus:
“In
a previous judgment I recounted subsequent events in some detail but I can
summarise the position in this way; I formed the view that, when he made the
order, Costello J. envisaged that the matter was only being dealt with on an
interim or interlocutory basis and that there would be a full hearing at a
later stage. I believe that that full hearing may well have taken place either
before Moriarty J., or Kelly J., or indeed, before me on a previous occasion.
However, in my previous judgment I decided that, to avoid any possible doubt
and to avoid injustice to the parties, the matter should be relisted before me
today for a full hearing. Today the issue for decision by the Court is whether
or not the interim order or interlocutory injunction should be made permanent
up to whatever date would be appropriate.”
6. The
learned President then held:
“In
order to consider today’s application one must go back anew to
section 44
of the
Nurses Act, 1985. The court must be satisfied at the present time, not
only when the original application was made before Costello J., for the interim
injunction, that the Board is satisfied that it is the public interest to make
the application to the High Court. The court must then go on to consider
whether or not it is the public interest to make the order sought.
In
my view it is incumbent upon the Board to reconsider the evidence available to
it at the present time and not, so to speak, rest on its oars as of the date
when the three letters came in. It is only be reviewing the position that it
can possibly form the view that it is in the public interest to apply to the
Court, and it is only on that basis that the Court can proceed to consider
making the order sought.
I
accept the evidence of Mr. Donohue and am satisfied that the Board has not
reconsidered the up-to-date position. I am also satisfied that the Board that
made the original decision has in fact gone out and that a new Board has come
in since September, 1997. So it is correct to say that, as a Board, this
matter has never come before the Board for its consideration....
In
my view it would be quite wrong for the court to act upon information which is
manifestly out of date and to continue to deal with this case on the basis of
the three original letters, closing its eyes to a number of relevant factors,
one such factor being that a variety of ladies have come to Court seeking that
the Respondent be allowed to treat them during their pregnancies. Another
factor is that a Professor Page, a Miss Cronk and a Dr. Porter, who are, I am
told, eminent medical practitioners, support the plaintiff.... I do not accept
Mr. Butler’s able submission that the additional material which has come
to hand in the meantime does nothing to undermine the original view of the
Board and that it therefore remains intact.... That being so, I am now
satisfied that the necessary foundation for the making of an order under
section 44 no longer exists and I accordingly refuse that application to extend
the provisions of the injunction up to a date in the future that may yet remain
to be determined. Having said that, I should not overlook the following: in
my view it remains open to the Board to reconsider the case as a whole. If
satisfied that it is in the public interest to do so, the Board may re-apply to
the High Court for an order under
section 44, if it is so advised.
I
want to make it clear that I am rejecting this application because I do not
believe that an order should be made depriving the Respondent of the right to
practice her profession without a full inquiry being made by the Board. I
believe I am correct in saying that this is the sixteenth or seventeenth
occasion on which the Respondent has come before the courts, perhaps on more
occasions when one takes into account the number of times she has gone to the
Supreme Court. I believe that the Board has conscientiously attempted to do
what is right and that the reason why it may not have reconsidered the position
in the last week or so is that it simply did not have time to do so. It may
well be that even as late as last night further affidavits were coming in. In
those circumstances I believe it is appropriate that there should be sympathy
for the Board in its failure to inform itself of the full facts of the case in
order to be able to inform the court that it is satisfied that it is in the
public interest to apply for the injunction to continue.
While
I do not make the order sought today, I want to make it clear that I do not
close the door to an application to be made to me or to some other judge for an
order under
section 44. I therefore refuse the relief sought in this
application.”
Appeal
7. Against
that judgment and order the applicant has appealed on the following grounds:
“1.
The learned President erred in fact and in law in finding that, before an
order under
section 44 of the act could be made, the applicant required to be
satisfied as of the trial date and the date of the said judgment and order,
that the said application was in the public interest.
2.
The learned President erred in fact and in law in finding that it was
incumbent
upon the applicant to reconsider the evidence available to it either
continually or at the date of the trial.
3.
The learned President erred in fact and in law in finding that without the
additional consideration by the appellant of the matters referred to in
paragraphs 1 and 2 above, there was no appropriate foundation upon which to
apply to the High Court.
4.
The learned President erred in fact and in law in finding that the information
contained in the letters of complaint which formed the basis of the
applicant’s decision to apply for an order on the 31st July, 1997 was out
of date.
5.
The learned President erred in fact and in law in finding that the necessary
foundation for the making of an order under
section 44 of the
Nurses Act, 1985
no longer existed.
6.
The learned President erred in fact and in law in failing to distinguish the
functions and powers of the High Court, the applicant/appellant and the
applicant/appellant’s Fitness to Practice Committee under the provisions
of Part V of the
Nurses Act, 1985 and in particular
section 44 of the said Act.
7.
The learned President erred in fact and in law in failing to have regard to
the evidence or the weight of evidence particularly in relation to the number
of applications in this action, including applications to set aside and vary
the original order made under
section 44 of the
Nurses Act, 1985, the evidence
in relation to the large number of disputed facts and issues which were under
investigation in the inquiries
into
the professional conduct of the respondent or in relation to the nature and
progress of the inquiries.”
8. The
applicant also appealed against the order for costs.
Submissions
9. It
was submitted on behalf of the applicant that the President erred in law in his
interpretation of section 44 of the Act of 1985. It was submitted that the
President erred in his determination that the court has to be satisfied at the
time of the hearing, on 18th May, 1999, that the statutory precondition is met
i.e. that the Board at that time is satisfied that it is in the public interest
to make the application to the High Court.
10. Counsel
for the applicant sought:
(a) that
the judgment and order of Morris P. be set aside;
(b) the
matter be remitted to the High Court so that the High Court could consider the
making of an interlocutory order pursuant to
section 44 pending the outcome of
the three inquiries or pending further enquiry or order.
11. Counsel
for the respondent, Ms. Barbara Hewson, B.L., submitted that the President of
the High Court had indicated to the applicant that they could make a fresh
application under section 44 to the High Court. Yet, they continued with this
appeal and did not reapply to the High Court. Instead, the applicant has
appealed to this court and invited this court to make relevant orders. Counsel
pointed to the time involved and to the fact that the applicant had taken no
steps in the months since the order of Morris P., on 18th May, 1999.
12. Counsel
for the respondent informed the court that the first inquiry had been completed
by the Fitness to Practice Committee, that the Committee had exonerated the
respondent but that recommendations of the Committee are being judicially
reviewed on the application of the respondent. The three other complaints and
inquiries have been adjourned pending the first complaint being processed and
matters litigated in the courts.
13. On
the issue of the construction of section 44 of the Act of 1985, counsel
submitted that the wording of the section is in the present tense. The section
refers to the fact that “the Board is satisfied” and that this is
the interpretation which is applicable at the hearing in court.
Law
“(1)
Whenever the Board is satisfied that it is in the public interest so to do,
the Board may apply to the High Court for an order in relation to any person
registered in the register that, during the period specified in the order,
registration of that person’s name in the register shall not have effect.
(2) An application under this section may be made in a summary manner and
shall be heard otherwise than in public.
(3) The High Court may make, in any application under this section, such
interim or interlocutory order (if any) as it considers appropriate.”
15. This
statutory relief may be utilised as a form of statutory injunction. It is
stated that an order may be made “during the period specified in the
order”. It is a summary procedure. It is an action which in its interim
or
ex
parte
use may be a rapid procedure to meet an urgent situation. Thus, whilst in some
cases an application may commence without notice in others notice will be
given. In some instances there may be an interim order and in others an
interlocutory order or orders. The fairness and justice of the procedure is
overseen by the Court - to whom the application is made.
The
words of
section 44 are clear. Taking the literal approach the applicant must
be satisfied that it is in the public interest so to do when it applies to the
High Court for an order in relation to any person registered in the register
that, during the period specified in the order, registration of the
person’s name shall not have effect.
Section 44 mandates that the Board
be satisfied that it is in the public interest for the Board to apply to the
High Court for such an order in relation to any person. Consequently, the
Board must be satisfied that it is in the public interest when it applies
initially to the High Court. However, the procedure is analogous to other
forms of injunction. There may be an interim order and then there may be a
subsequent interlocutory order. As the matter proceeds a respondent may file
replying affidavits. Fresh facts may come into the proceedings. These may
contradict the matters first put in evidence by the applicant. There may be a
conflict of evidence before the court. This conflict does not deprive the
court of jurisdiction of the issue. The court has jurisdiction, the necessary
foundation is there. It is for the judge to determine the conflict. It is not
for the applicant to recommence the application.
16. Insofar
as the President indicated that the Board had to be satisfied that it is in the
public interest so to do on the original application and at a later date on a
hearing of the application I would allow the appeal. I would set aside his
determination that:
“In
order to consider today’s application one must go back anew to
section 44
of the
Nurses Act, 1985. The court must be satisfied at the present time, not
only when the original application was made before Costello J. for the interim
injunction, that the Board is satisfied that it is in the public interest to
make the application....
In
my view it is incumbent upon the Board to reconsider the evidence available to
it at the present time and not, so to speak, rest on its oars as of the date
when the three letters came in. It is only by reviewing the position that it
can possibly form the view that it is in the public interest to apply to the
court, and it is only on that basis that the court can proceed to consider
making the order sought.”
17. The
words of the section
“Whenever
the Board is satisfied that it is in the public interest so to do, the Board
may apply to the High Court...”
refers
to the initial application. The Board must be satisfied that it is in the
public interest to make the application when the original application is made
to court. It is not necessary for the Board to reconsider the matter and be
satisfied at the time of a hearing, i.e. the day of the hearing before Morris
P., that it is in the public interest to make the application to the court.
The precondition, the satisfaction of the Board that it is in the public
interest to apply to the High Court, has been met and the court had
jurisdiction from 1st August, 1997. The case then became a conflict which fell
to be determined by the court. Such interlocutory order as is then made by the
court may well be for a finite time, such as a matter of months. Or such an
order may be pending the conclusion of an enquiry.
Section 44 gives so
draconian a power to the court that a court should be slow to make an order for
a lengthy time except in clear cut cases in the public interest. It is most
unfortunate that an application which commenced on 1st August, 1997 was still
pending or being sought in May, 1999.
18. The
procedure is severe - it may order a person (as here) to cease working. In
1997 Costello P. approached the application with care, for while granting the
order ex parte, he ordered.
“And
it is ordered that the Respondent be at liberty to apply to set aside or vary
this order on 24 hours notice in writing to the Applicant.”
19. The
section does not anticipate a situation where an application made in 1997 is
heard in 1999. It anticipates a situation where an application is heard and
determined within a reasonable time. If there has been a considerable delay
and a developing situation and facts, depending on the circumstances, there may
be a responsibility on a Board to meet the changing situation with fresh
evidence. This does not mean that the court does not have jurisdiction to
deal with the application. It means that in the absence of updating evidence
from the Board and in light of current information from an applicant, the court
may resolve a conflict on the evidence against the Board. For example, if the
Board had sought an order suspending registration of a person who then filed
affidavits directly denying the evidence of the Board, it may be a responsible
act of the Board to react to that evidence. If there is conflicting evidence
before the court it is for the court to determine the issue. Where there is a
conflict, and where, as here, there is a considerable delay, it would appear
appropriate for a professional body to address the changed or changing
situation and/or conflicting evidence. It was this changing situation which
the President addressed in his judgment. Consequently, I am satisfied that the
President was correct in his determination:
“In
my view it would be quite wrong for the Court to act upon information which is
manifestly out of date and to continue to deal with this case on the basis of
the three original letters, closing its eyes to a number of relevant factors,
one such factor being that a variety of ladies have come to Court seeking that
the Respondent be allowed to treat them during their pregnancies. Another
factor is that a Professor Page, a Miss Cronk and a Dr. Porter, who are, I am
told, eminent medical practitioners support the Plaintiff.”
Delay
and extensive litigation
20. The
extensive delay in this matter and the widespread litigation between the
parties is a matter of concern. At issue are proceedings raising matters of
public interest and matters affecting a person’s right to work. It would
be advisable where there is a multiplicity of litigation for it to be
consolidated or taken together. Clearly it would be beneficial if there was a
modern system of case management of such cases.
Orders
sought
21. On
the issue of the interpretation of section 44 of the Act of 1985, I would set
aside the judgment as stated. In addition, the applicant sought that the
matter be remitted to the High Court so that the High Court could consider
making an order under section 44 of the Nurses act, 1985. The learned
President refused to make the order sought. There is no extant order under
section 44. Years have elapsed since the original application on 1st August
1997. There has been extensive litigation. Time has passed also since the
learned President’s order on 18th May, 1999 and no further application
under section 44 has been made by the applicant. The President left open the
possibility of the applicant applying for a fresh order under section 44 of the
Nurses Act, 1985 when he concluded:
“While
I do not make the order sought today, I want to make it clear, that I do not
close the door on an application to be made to me or to some other judge for an
order under
section 44. I therefore refuse the relief sought in this
application.”
22. In
view of the considerable time which has elapsed since the original application
for a section 44 order and the extensive litigation over the past few years it
is clear that the situation in the year 2000 is different to that in 1997.
Consequently, I would not remit these proceedings back to the High Court. The
applicant may, of course, make an application pursuant to section 44 of the Act
of 1985 at any time to the High Court.
Conclusion
(a) Insofar
as the President indicated that the court had to be satisfied at the present
time, not only when the application was made to Costello P., for the interim
injunction, that the Board is satisfied that it is in the public interest to
make the application to the High Court, he fell into error. However, insofar
as the President determined that it would be wrong for a court to act upon
information which is out of date I would affirm the judgment.
(b) I
would refuse the application that the matter be remitted to the High Court.
23. Consequently,
I would dismiss the appeal for the reasons stated.
Costs
24. Several
parties have appealed on issues of costs against the order of the High Court.
These matters were adjourned by this court until after the delivery of the
decision of the court on the issue of law on the appeal.
THE
SUPREME COURT
NO:
1997/ 328 SP
127,
131 & 225/99
DENHAM
J
MURPHY
J
BARRON
J
HARDIMAN
J
GEOGHEGAN
J
BETWEEN:
AN
BORD ALTRANAIS
APPLICANT/ APPELLANT
AND
ANN
O’CEALLAIGH
RESPONDENT
AND
BY ORDER OF THE COURT SABH O’NEILL
RESPONDENT/
APPELLANT
AND
IMOGEN
O’CONNOR, MARGARET KEANE, CATHERINE FITZGERALD,
JUDY
FLAHERTY AND PENNY STEWART
NOTICE
PARTIES/ APPELLANTS
JUDGMENT
OF MR JUSTICE FRANCIS D MURPHY DELIVERED THE 17TH DAY OF MAY, 2000
_________________________________________________________________________
25. An
Bord Altranais or, in the English language, the Nursing Board (hereinafter
referred to as the Board) was set up pursuant to
s.6
of the Nurses Act, 1985
“to
promote high standards of professional education and training and professional
conduct among nurses”
and to fulfil the other functions assigned to it by that Act. One of the
statutory functions of the Board is to maintain a register of nurses (see
s.27
(1)). Where a nurse has been found by the Fitness to Practice Committee of the
Board (on the basis on an inquiry and report pursuant to
s.38
of the Act of 1985) to be guilty of professional misconduct the Board may in
that or other specified events, decide that the name of the nurse should be
erased from the Register or that, during a period of specified duration
registration of the person’s name in the Register should not have effect.
The nurse to whom such a decision relates may within 21 days of the date
thereof apply to the High Court for cancellation of the decision.
26. Ann
O’Ceallaigh is and was at all material times a nurse whose name was
included in the Register maintained by the Board as aforesaid.
27. Between
the 27th September, 1996 and 26th June, 1997 the Board or the Fitness to
Practice Committee thereof received complaints about the Respondent or
applications for inquiries into her fitness to practice nursing on the grounds
of alleged professional misconduct.
28. At
a special meeting held on the 31st day of July, 1997 the Board made the
decisions following:-
1 That
an application be made to the Fitness to Practice Committee in accordance with
Section 38(1) of the
Nurses Act, 1985 for an inquiry into the fitness to
practice midwifery of Ann O’Ceallaigh and
2 That
it was in the public interest to make an application to the High Court for an
order that during a period to be specified in the order the registration of the
name of Ann O’Ceallaigh, personnel identification number 33495, in the
Register, should not have effect.
“44(1) Whenever
the Board is satisfied that it is in the public interest so to do, the Board
may apply to the High Court for an order in relation to any person registered
in the Register that, during the period specified in the order, registration of
that person’s name in the Register shall not have effect.
(2) An
application under this Section may be made in a summary manner and shall be
heard otherwise than in public.
(3) The
High Court may make, in any application under this Section, such interim or
interlocutory order (if any) as it considers appropriate.”
29. The
Special Summons herein was issued on the 1st day of August, 1997 and grounded
on the affidavit of Eugene Donoghue sworn on the same date. The material
relief claimed in that summons was as follows:-
“1 An
order pursuant to Section 44 of the Nurses Act, 1985 (‘the Act’)
directing that pending the outcome of an inquiry or inquiries under Part V of
the Act into the fitness of the Respondent to practice nursing and the outcome
of any consequent application to this Honourable Court arising out of the said
inquiry or inquiries the registration of the Respondent’s name in the
Register of Nurses maintained by the Applicant under Part III of the Act or in
the Midwives division of the said Register shall not have effect.
2 An
injunction restraining the Respondent from engaging in the practice of nursing
(including midwifery) until after the outcome of the inquiry or inquiries and
applications referred to at paragraph 1 above or pending further order.”
30. Pursuant
to that Summons an ex parte application was made to the then President of the
High Court, Mr Justice Costello, and on that application he made orders which
included the following:-
“It
is ordered pursuant to Section 44 of the Nurses Act, 1985 that the registration
of the name of the Respondent in the Register of Nurses maintained by the
Applicant under Part III of the said Act or in the midwives division of the
said Register shall not have effect until after Wednesday the 13th day of
August, 1997 or until further order in the meantime
And
it is further ordered that the Respondent be restricted until after Wednesday
the 13th day of August, 1997 or until further order in the meantime from
engaging in the practice of nursing (including midwifery)
And
it is further ordered that the Special Summons herein be made returnable before
this Court (the President) on Wednesday the 13th day of August, 1997
And
it is ordered that the Applicant be at liberty to notify the Respondent of the
making of this order forthwith by letter to the Respondent and to her
solicitors Kenneth D Morris & CO of 28, Merrion Square, Dublin 2
And
it is further ordered that the Respondent be at liberty to apply to set aside
or vary this order on 24 hours notice in writing to the Applicant.”
31. The
Respondent did not apply to have the order aforesaid set aside and did not
adduce any evidence at the hearing of the Summons on the 13th of August, 1997
to contest the facts set out in the affidavit of Eugene Donoghue. On the inter
partes hearing, the Summons was adjourned to the 13th day of October, 1997 and
an order was made by the President restraining the Respondent
“pending
the hearing of this matter from engaging in the practice of midwifery”
.
The hearing of the summons on the 13th day of October, 1997 was anticipated
by Notice of Motion issued by Ms O’Ceallaigh on the 29th September, 1997
and returned for hearing on the 2nd day of October, 1997 on which day it was
heard by Mr Justice Moriarty.
32. In
that Notice of Motion Ms O’Ceallaigh sought to have the summary
proceedings dismissed and what is described as
“the
interim injunction”
discharged for the reasons set out in the Notice of Motion in the following
terms:-
“A Failure
to comply with the fundamental requirements of RSC Order 4 Rule 4 to specify in
the pleadings ‘with all necessary particulars..... the grounds’ for
the relief being sought;
B Failure
to put any evidence on affidavit demonstrating that the Applicant is
‘satisfied’ in accordance with s.44 (1) of the Nurses Act, 1985;
C Abuse
of process by commencing these proceedings impliedly representing that the
Board was so ‘satisfied’ when it never was so satisfied and had
never taken the necessary steps as, in the circumstances, might have satisfied
it.”
33. It
is clear from the order made by Mr Justice Moriarty on the 3rd October, 1997
that both the summons and the motion had been heard by him on that and the
previous day. Moreover it would appear that both the Summons and the Notice of
Motion were heard primarily on the evidence given on affidavit by Mr Donoghue
in two affidavits, one dated the 1st day of August, 1997 and the other dated
the 1st day of October, 1997, and two affidavits of Ms O’Ceallaigh, each
dated the 26th day of September, one of which was sworn in other proceedings
but incorporated by reference into the proceedings commenced by way of Special
Summons.
34. In
an ex tempore, but comprehensive, judgment delivered on the 3rd day of October,
1997, and in rulings made during the course of the oral submissions of which a
stenographic record was made, Moriarty J ruled on the issues canvassed before
him as follows:-
35. First,
he accepted that there was or might have been some measure of infirmity in the
form of the Special Summons by which the proceedings were instituted. He did
say, however, whilst not deeming it necessary to do so he would, insofar as it
was required, deem it a case in which the interests of justice would be met by
invoking Order 124 of the Rules of the Superior Courts.
36. Secondly,
he considered the nature and details of the complaints made to the Board and
the response made by Ms O’Ceallaigh thereto in the affidavits sworn by
her. He did not purport to make any determination on the substance of the
complaints.
37. Thirdly,
he had regard to the fact that some fourteen expectant mothers were then
currently desirous of being patients of Nurse O’Ceallaigh and were
desirous of having her services during their pending confinements.
38. Fourthly,
he assessed a variety of criteria in determining whether the balance of justice
and convenience required the granting or withholding of an injunction. In that
connection he expressly referred to
“the
potentially and very considerable seriousness of the issue that arose in
relation to the twins”
.
39. Fifthly,
he concluded by saying:-
“............
What I have decided to do is to retain the injunction, but to very
substantially limited terms, so as to provide that the first named Respondent
will be entitled to remain the professional midwife in relation to the 14 of
the 16 ladies in respect of whom Mr Moylan acts, should the other two ladies -
I think it was 16 - vouchsafe or wish that she so act that also, provided those
parties are on notice of the material matters that have arisen in the case,
should also give rise to her being entitled to act for those persons also.”
40. By
motion dated the 9th day of December, 1997 Counsel on behalf of Ms
O’Ceallaigh applied on the 16th day of December, 1997 for an order
discharging the injunctive orders made herein. Counsel on behalf of Ms
O’Ceallaigh relied on eight grounds as bases for the discharge of the
said orders. Those grounds were dealt with seriatim in the judgment of Mr
Justice Kelly which was delivered ex tempore on the 17th day of December, 1997.
The arguments made to the Court and the decisions thereon may be summarised as
follows:-
1 That
the order restraining Ms O’Ceallaigh from engaging in the practice of
midwifery had been made ex parte:- Kelly J pointed out that the original order
had been made ex parte on the 1st August, 1997 but the subsequent orders of the
13th August and 3rd October were clearly made inter partes.
2 That
it was a condition precedent to the application for the order that the Board
should have been satisfied that it was in the public interest to make the
application:- The learned Judge explained that it was not possible to deal
with that issue at that stage of the proceedings.
3 That
there was no real substance in the complaints which had been made against Ms
O’Ceallaigh:- The learned Judge pointed out that the evidence made it
clear that there would be a
“head
on clash between the Board and Ms O’Ceallaigh at the hearing before the
Fitness to Practice Committee”
. He went on to point out that it was that body which was enjoined by statute
to determine the issue. He concluded by saying that
“as
a ground for discharging the injunction it does not appear to me to have any
validity”
.
4 The
provenance of the complaints:- The learned Judge concluded that this was not a
matter he ought to take into account in relation to the application before him.
5 The
exceptional delays on the part of the Board
“in
getting on with these inquiries”
:-
The learned Judge accepted that there was a duty on the Board to proceed
expeditiously. The learned Judge exculpated the Board in relation to delays
prior to the commencement of the proceeding. He then pointed out that three of
the four complaints were
“effectively
frozen”
by reason of judicial review proceedings instituted by Nurse O’Ceallaigh.
He appears to have accepted that the delay in dealing with the fourth complaint
was due, in part at any rate, to the belief that all four complaints should be
heard together.
6 The
effect of the injunction on the ability of Ms O’Ceallaigh to earn her
livelihood:- The learned Judge accepted that this was very serious indeed but
pointed out that not merely had he to consider her rights but he went on to say:-
“I
have to balance her rights as against those of other parties and in particular
the public interest.”
7 The
rights of others who wish to contract with Ms O’Ceallaigh for the
provision of midwifery services:- Kelly J accommodated this argument by
joining the parties concerned at their own request.
8 That
the order of Moriarty J was a precedent for the discharge of the injunction:-
Mr Justice Kelly pointed out that this was not so and indeed Moriarty J had
continued the injunction previously granted.
41. With
regard to permitting other patients to avail of the services of Ms O’
Ceallaigh, Mr Justice Kelly refused to make any such order unless and until the
persons concerned read the complaints made against her and made a fully
informed judgment thereon. Having done so they were entitled to notify the
solicitors on behalf of the Board and then the order of restraint would be
varied so as to permit them to avail of the services. Between 1997 and April,
1999 a number of orders were made relaxing further the restrictive order made
by Mr Justice Moriarty on the 3rd October, 1997 and by Mr Justice Kelly on the
17th December, 1997 in ease of particular patients of Ms O’Ceallaigh.
42. By
Notice of Motion dated the 29th day of March, 1999 and grounded on the
affidavit of Mr Colm McGeehan, Counsel on behalf of Ms O’Ceallaigh,
applied to the High Court on the 26th April, 1999 for the orders following:-
1 An
order dismissing these proceedings for failure by the Plaintiff to
expeditiously prosecute them to final judgment.
2 An
order dismissing these proceedings because the Plaintiff did not satisfy the
statutory prerequisites for commencing them.
43. Apart
from commenting upon the hardship which the order imposed upon his client Mr
McGeehan pointed out in paragraph 7 of his affidavit:-
“For
several months Ms Anne O’Ceallaigh had been endeavouring to have this
case tried and has been seeking an early hearing date but to no avail.
Although Counsel for An Bord has stated it will not stand in the way of such
date being got by her, it now seems that An Bord’s stance is that the
trial has already taken place. It has been necessary to put down this motion
in order to bring this particular matter to a head.”
44. The
learned President refused the relief sought. In his judgment delivered on the
13th day of May, 1999 he examined the history of the matter and in relation to
what he described as
“the
extraordinary length that this matter has been hanging fire”
he said:-
“I
am satisfied that the repeated applications on the part of Nurse
O’Ceallaigh have been the root cause of this delay.”
45. It
must be emphasised that he made that comment in the context of explaining that
Nurse O’Ceallaigh was fully entitled to exercise and invoke all of her
legal rights.
46. As
to the failure of the Board to
“satisfy
the statutory prerequisites for commencing the proceedings”
the President distinguished between an obligation on the Board to satisfy
itself that an application was necessary
“in
the public interest
”
before the commencement of the proceedings, which he held had been discharged
but also on the substantive hearing of the summons which he held had not taken
place. In those circumstances he fixed the 18th of May for the hearing of the
Special Summons.
47. In
an ex tempore judgment of that date the President once again reviewed the
material facts and in particular the complaints received by the Board between
September, 1996, and June, 1997, and of those complaints he said:-
“Those
letters make very frightening reading and I have no doubt that they gave the
Board grounds to determine at its meeting on the 31st July, 1997 that an order
under s.44 would be appropriate. So the Board asked the Court to make an order
under s.44 and the Court acceded to the application, it presumably being
satisfied that it was an appropriate case in which to make the order
sought.”
48. As
to issues arising on the substantive proceedings the President said:-
“In
order to consider today’s application one must go back anew to Section 44
of the Nurses Act, 1985. The Court must be satisfied at the present time, not
only when the original application was made before Costello J. for the interim
junction, that the Board is satisfied that it is in the public interest to make
the application to the High Court. The Court must then go on to consider
whether or not it is in the public interest to make the order sought.”
49. The
President held that the Board was bound to reconsider the evidence available to
it as at the date of the hearing and not to rely on the information it received
at the date when the complaints were made. He accepted that the Board had not
reviewed the position and accordingly refused the relief claimed. He said that:-
“I
do not believe that there is the appropriate foundation upon which to apply to
the Court.”
50. The
President commented further as follows:-
“In
my view it would be quite wrong for the Court to act upon information which is
manifestly out of date and to continue to deal with this case on the basis of
the three original letters, closing its eyes to a number of relevant factors,
one such factor being that a variety of ladies have come to Court seeking that
the Respondent be allowed to treat them during their pregnancies. Another
factor is that a Professor Page, a Miss Kronk and a Mr Porter, who are, I am
told, eminent medical practitioners, support the Plaintiff. These are matters
which might well be taken into consideration by the Board in determining
whether or not it still believes and is still satisfied that it is in the
public interest for the Court to make the order sought.”
51. It
was from that judgment and the order made thereon that the Board has appealed
to this Court.
52. Despite
the lengthy, and somewhat confusing, history of the matter the issue which
arose in these proceedings and on this appeal reduces itself essentially to the
proper construction of
s.44
of the Nurses Act, 1985. Subsection (1) of that section confers a particular
right on the Board to apply to the High Court. Subsection (2) prescribes the
procedure by which the application may be made and the manner in which it may
be heard. Subsection (3) defines the powers of the Court under the Section in
the following terms:-
“The
High Court may make, in any application under this section, such interim or
interlocutory order (if any) as it considers appropriate.”
53. The
only power of the Court under the section is to grant injunctions. That in
itself is unusual. The fact that such relief may be sought and obtained in a
summary manner, that is to say, on a Special Summons, is even more surprising.
Reading the Act of 1985 as a whole it would seem that a purpose, but not
necessarily the only purpose, of
s.44
was to enable the High Court, on the application of the Board, effectively to
suspend a nurse whose conduct is the subject matter of an inquiry under
s.38
of that Act. Certainly
s.44
is not in terms related exclusively to
s.38.
54. The
key to the interpretation of the section, as it relates to the present matter,
is to be found in the procedure prescribed for bringing an application
thereunder. It is to be brought in a summary manner. It is clear - and both
parties agreed - that
“in a summary manner”
means in proceedings instituted by way of Special Summons. It follows that the
application is brought, for whatever relief, by the institution of the special
proceedings. The application under the Section is brought by the issue of the
summons. The Board is empowered by subsection (1) to
“apply to the High Court”
and subsection (2) provides that
“an application under this section may be made in a summary manner”
.
In my view it follows there is but one application and that is by the
institution of the summary proceedings. If the Board is required to form an
opinion or to satisfy itself as to where the public interest lies then it is on
the institution of the proceedings that such a decision must be made. It does
not seem to me that the Section relates the attitude or decision of the Board
to any other time.
55. In
my view once the proceedings were instituted it was a matter for the Court to
make
“such
order as it (the High Court) considers appropriate”
.
The High Court would take on itself the onerous task of weighing whatever
concerns, complaints or reports were put before the Board by way of evidence of
alleged misconduct and any potential danger to
“the
public interest”
as against the undoubted and immediate injustice to a nurse who would be
precluded wholly or in part during a limited or specified period of time from
carrying on her or his professional duties.
56. The
Summons in its terms expressly sought an order restraining Nurse
O’Ceallaigh from practising her profession pending the outcome of the
inquiry then pending pursuant to
s.38
of the Act of 1985. Unfortunately that particular plea seems to have been
ignored in the course of the proceedings which were heard in the Autumn of
1997. Whilst orders were made by Mr Justice Moriarty and Mr Justice Kelly
restricting (but not precluding) Nurse O’Ceallaigh from her professional
activities, the duration of the orders was expressed to be
“pending
the hearing of this matter”
rather than pending the hearing of the disciplinary inquiry or any specified
period of time. Indeed it would seem that at different stages it was
apprehended that the Court itself would conduct some form of disciplinary
inquiry. Clearly this would be inappropriate as the legislature has expressly
conferred that jurisdiction on the Nursing Board with an appeal, where
appropriate, to the High Court. The only function of the High Court on the
hearing of the summons would be to determine whether that Court considered it
appropriate in the public interest to grant an injunction.
57. In
my view the President erred in concluding that the Board was required to review
the complaints originally received by it or any additional information which
had become available in the proceedings or otherwise since the institution
thereof with a view to satisfying itself that it continued to be in the public
interest to apply to the Court for an order restraining the activities of the
Respondent. Whether the passage of time has affected the quality of the
complaints or whether the response of Nurse O’Ceallaigh in the affidavit
sworn by her or the exhibits contained therein or any additional information
gleaned from the other evidence would be sufficient to sway the Court in the
exercise of its judicial discretion to grant or to withhold the orders sought
is a matter for the Court. The application for the statutory relief was
properly before the Court. It was for the Court to determine on the evidence
adduced whether an injunction limited in time or in scope should be granted or
withheld. That was a duty which, in my view, the learned President was bound
to exercise irrespective of the current opinion (if any) of the present Board
pursuant to
s.44
aforesaid.
58. The
fact that the interlocutory relief granted inter partes by Judges Moriarty and
Kelly were expressed to continue until the hearing of the matter meant that
those injunctions have now expired irrespective of the decision of the
President. There is accordingly no restraint on Nurse O’Ceallaigh
pursuing her professional activities. I would feel bound as a matter of law to
remit the matter to the President of the High Court to reconsider whether in
his judgment an injunction should be granted in the present proceedings
although I appreciate the wisdom of the President in proposing that, if an
injunction was to be sought at this stage, it might be desirable for the Board
to review the matter, and if appropriate to institute fresh proceedings.
59. I
would allow the appeal.
Denham
J.
Murphy
J.
Barron
J.
Hardiman
J.
Geoghegan
J.
127,
131 & 225/99
THE
SUPREME COURT
IN
THE MATTER OF THE NURSES ACT, 1985
AND
IN THE MATTER OF ANN O’CEALLAIGH,
A
REGISTERED NURSE
BETWEEN/
AN BORD ALTRANAIS
Applicant
and
ANN
O’CEALLAIGH
Respondent
AND
BETWEEN/
ANN
O’CEALLAIGH
Appellant
and
AN
BORD ALTRANAIS AND ATTORNEY-GENERAL
Respondent
JUDGMENT
delivered on the 17th day of May 2000 by
BARRON
J.
The
Background to the proceedings
There
are two matters before the Court. The first is an appeal in judicial review
proceedings brought by Ann O’Ceallaigh (“
the
respondent”)
against An Bord Altranais (“
the
Board”)
.
The second is an appeal brought by the Board in relation to proceedings
brought by the Board pursuant to the provisions of s. 44 of the Nurses Act,
1985.
The
respondent qualified as a nurse in London in 1971. The following year she
qualified as a domiciliary midwife. In the following two years she worked in
a hospital in Texas. For the next nine years up to 1983 she was in charge of
the total health care for an Eskimo/Indian populations in the Canadian Arctic
region. During that time she qualified as a public health nurse in Dalhousie
University, Canada. Then for two years she worked as a domiciliary midwife
in Dublin and in Wicklow. For the following two years she worked for the
Department of Foreign Affairs in its bilateral aid programme in Northern Zambia
where there were no medical doctors nor hospitals. At the end of that period
she returned to this country where she acted as a domiciliary midwife in Dublin
and Wicklow. During that period she has attended on average forty-five women
every year. In addition to her work as a midwife she counsels women who have
had miscarriages.
By
letter dated the 27th September, 1996 the then Master of the National Maternity
Hospital
(“the
Master”) made
a complaint to the Chair of the Fitness to Practise Committee of the applicant
(“the
Board”) in
relation to the respondent. The complaint related to the condition of a
patient who was referred by the respondent to the hospital on the 17th June,
1996. The core of the complaint is set out in the following paragraph from
the letter:
“My
concerns and those of my colleagues are that this woman was left in labour for
several days, that the cervical dilation was assessed as being far further
advanced than it in fact was, and that the potential seriousness of the
baby’s condition was not recognised by (the respondent)”.
By
letter dated the 25th October, 1996 the Deputy Chief Executive Officer wrote to
the Master in standard form to ask him whether or not he wished to make an
application for an inquiry by the Fitness to Practise Committee. He replied
on the 5th November, 1996 that that was his intention. The Deputy Chief
Executive Officer then by letter dated the 26th November, 1996 to the Master
sought the following documents:
“Copy
of any report, notes or records furnished by the midwife when the patient was
being admitted to your hospital, and copy of any report, notes or records in
relation to any assessment of the patient carried out on her admission.”
On
the following day the Deputy Chief Executive Officer wrote to the respondent
attaching copies of the correspondence with the Master of the National
Maternity Hospital inviting her to comment on the allegations. She was sent
a reminder on the 13th December, 1996. On the 18th December, 1996 solicitors
wrote to the Deputy Chief Executive Officer on behalf of the respondent
indicating that they needed an opportunity to take comprehensive instructions
from their client. This letter indicated that the allegations were being
strenuously denied.
On
the 8th January, 1997 the Master was sent a reminder that he had not replied to
the letter of the 26th November. The Master replied by letter dated the 13th
January, 1997 enclosing a copy of the hospital chart; copies of two letters
from the Paediatric Department describing the baby’s condition; and a
copy of the foetal heart rate tracing in labour.
On
the 19th March, 1997 the Master again wrote to the Deputy Chief Executive
Officer asking at what stage the investigation of the complaint had reached.
On
the 20th March, 1997 the Deputy Chief Executive Officer wrote to the respondent
indicating that the committee had decided that it would proceed to make a
decision in relation to the application for an inquiry at its next meeting on
the 16th April, 1997. It asked for a response from the respondent before the
8th April, 1997. In fact the response was from her solicitors by letter
dated the 8th April, 1997. It indicated that it might take up to four months
before he would be in a position to obtain the requisite assistance from
experts. He further indicated that any response he would then make on behalf
of the respondent would be necessarily incomplete and her interests would not
be properly or fairly protected in that context. By letter dated the 18th
April, 1997 the Deputy Chief Executive Officer wrote to the respondent
indicating that the committee had decided that there was a
prima
facie
case for holding an inquiry and that accordingly a notice, setting out the time
and venue, the allegations to be considered, details of the nature of the
evidence to be considered and other relevant information, would be furnished to
her in due course.
The
respondent changed her solicitors and on the 27th June, 1997 her new
solicitors, being the solicitors acting for her in these proceedings, wrote to
the Deputy Chief Executive Officer indicating that a great deal of expert
evidence would have to be adduced in order to refute the serious allegations
made against their client by the Master. The letter then indicated that the
respondent did not have the personal means to defend the proceedings properly
and requested the Board to undertake to discharge her reasonable costs in
relation to the inquiry. There does not appear to have been an answer to
this letter but on the 28th July, 1997 the solicitors to the Board wrote to the
respondent’s solicitors as follows:
“Re
Your client: Ms Ann O’Ceallaigh
Our clients: An Bord Altranais.
Fitness to Practise Inquiry.
Dear
Sirs
We
act on behalf of An Bord Altranais in relation to the above matter and we are
instructed by our clients that you represent the interests of Ms. Ann
O’Ceallaigh regarding same.
We
are in the process of finalising the notice for the forthcoming inquiry and we
are instructed by our clients to request your client to furnish copies of all
her notes, documentation, memoranda together with all relevant documentation in
her possession relating to her treatment of and involvement with (the mother)
concerning (her) pregnancy and birth of her child in June, 1996.
We
are further instructed by our clients to request your client, Ms.
O’Ceallaigh to furnish a copy of any Eastern Health Board
documentation/records/notes which your client has completed in relation to this
matter and also a copy of any documentation/records/notes regarding (the
mother) which your clients is obliged to keep in her capacity as the midwife
responsible for (the mother’s) treatment and care.
We
look forward to receiving a response to this request within ten days from
today’s date.
Yours
faithfully”
By
letter dated the 16th May, 1997 the Master made a further complaint against the
respondent. This complaint related to a mother who had been expecting twins
and who had been advised not to have a home delivery. She nevertheless
proceeded to do so. Unfortunately, she had to be brought into hospital for
the births which occurred on the 14th May. However, one of the twins was
found to be dead. The Master regarded this matter as a clearly avoidable
tragedy and indicated that the professionals in the hospital were very upset
that women were being exposed to the risks associated with attending home birth
midwifes in the community who clearly were not practising to an acceptable
standard. He requested the Board to take decisive action on this occasion.
The
Deputy Chief Executive Officer replied on the 19th June, 1997 indicating to the
Master that the matter would have to be considered separately from his previous
complaint and asked him whether he wished to make another application for an
inquiry. The Master replied on the 26th June, 1997 that he was not making
such an application. The application for the inquiry was in fact made by the
Board following a decision to do so at a meeting on the 31st July, 1997. The
respondent was informed of this application by letter from the Deputy Chief
Executive Officer dated the 26th September, 1997. She was asked to furnish
copies of any records, notes or charts in her possession relating to the case.
She had not previously received any intimation that any such complaint had
been made or was likely to be investigated.
By
letter dated the 26th June, 1997 the Matron of the Rotunda Hospital
(“the
Matron”)
wrote
to the Chief Executive Officer of the Board making a complaint concerning the
treatment by the respondent of two patients who she had referred to that
hospital. The first complaint related to a patient with an undiagnosed
breech presentation. It was said that there was a delay of two hours and
twenty minutes between the time she should have been transferred to hospital
and the time at which she was transferred. A copy of the management of the
patient while she was in the Rotunda Hospital was enclosed.
The
complaint in relation to the second patient was that there was a delay of two
and a half hours in having her transferred to hospital. It was also
suggested that she might have had a condition at thirty-six weeks gestation
which would have required action but that no action appeared to have been taken
at the time. In relation to this case the Matron enclosed the
respondent’s records and also comments by the Unit Nursing Officer in the
delivery suite on the particular patient.
On
the 3rd July, 1997 the Matron was sent the standard letter asking her whether
or not she wished to make an application for an inquiry. She replied on the
4th July, 1997 to the effect that the Rotunda Hospital wished to make the
application.
The
Deputy Chief Executive Officer wrote back to the Matron on the 18th July, 1997
indicating that the application for an inquiry had to be made by a person and
requested whether she wished to make the application personally or on behalf of
the Board of the Rotunda Hospital. She replied on the 28th July, 1997 that
she wished to make the application on behalf of the Board. On the 26th
September, 1997 the Deputy Chief Executive Officer informed the respondent that
the Fitness to Practise Committee had decided to hold an inquiry on foot of an
application received from the Matron on behalf of the Board. The respondent
was informed of the names of the two mothers concerned. She was asked to
furnish copies of any records, notes or charts in her possession relating to
the cases; presumably relating to the first only of the two cases, since her
records of the second one had already been furnished by the Matron. Until
the receipt of this letter the respondent had been totally unaware that any
such complaints nor any action by the committee in relation thereto was
contemplated.
Meanwhile
the Chief Executive Officer by notice dated the 25th July, 1997 called a
special board meeting of the Board to consider an application under s. 44 of
the Nurses Act, 1985 in relation to the respondent referred to in the notice as
a named nurse. The notice indicated that documentation would be furnished at
the meeting. By notice dated the 31st July, 1997 the Chief Executive Officer
circulated the Board members in relation to a special board meeting to consider
(1) an application for inquiry into the fitness to practise of a nurse again
meaning the respondent under s. 38(1) of the Nurses Act, 1985, and (2) an
application under s. 44 of the Nurses Act, 1985. At the meeting or meetings
of the Board on the 31st July, 1997 the Board decided to apply to the Court
under the provisions of s. 44 and also to apply for an inquiry pursuant to the
provisions of s. 38(1) of the Act in respect of the second complaint raised by
the Master.
The
application pursuant to the provisions of s. 44 of the Act was made by special
summons which issued on the 1st August. 1997. The applicants claim was for:
“(1) An
order pursuant to s. 44 of the Nurses Act, 1985 (‘the Act’)
directing that pending the outcome of an inquiry or inquiries under Part V of
the Act into the fitness of the respondent to practise nursing and the outcome
of any consequent application to this Honourable Court arising out of the said
inquiry or inquiries the registration of the respondent’s name in the
Register of Nurses maintained by the applicant under Part III of the Act or in
the midwives division of the said register shall not have effect.
(2)
An injunction restraining the respondent from engaging in the practice of
nursing (including midwifery) until after the outcome of the inquiry or
inquiries and applications referred to at paragraph (1) above or pending
further order.
(3)
Further or other relief.”
This
application was grounded on the affidavit of the Chief Executive Officer.
This affidavit put before the Court the complaints which had been received both
from the Master and from the Matron. In relation to the first complaint by
the Master the affidavit stated that the respondent had been asked to furnish
her observations and more recently for copies of her notes and records relating
to her care of her patients; and that in spite of correspondence with her
solicitors which was exhibited the respondent had to date failed to furnish any
detailed response or to furnish the documents sought. It is to be regretted
that the affidavit did not indicate that the time for furnishing the documents
had not yet expired although that fact could be ascertained from the exhibited
correspondence. The affidavit did, however, indicate that the respondent had
asked for more time in order to formulate her response and had indicated that
she denied the allegations made against her.
In
relation to the second complaint the affidavit adds nothing to the contents of
the Master’s letter. It does, however, say that on the 31st July, 1997
the Board decided to apply to the committee for an inquiry in relation to the
complaint.
The
affidavit adds nothing to the complaints as made by the Matron of the Rotunda
Hospital. The attitude of the Board is set out in paragraph 9 of the
affidavit which is as follows:
“A
special meeting of the applicant was held on the 31st July, 1997 to consider
the appropriate action to be taken arising out of these four separate
complaints or requests for inquiries. Having regard to the number of
complaints against the respondent, their source, their very serious nature and
the risk to the life and health of mothers and babies who might be attended by
the respondent for home deliveries, the applicant was satisfied that it was
necessary in the public interest to apply to this Honourable Court for the
appropriate order or orders under section 44 of the Act directing that the
registration of the respondent’s name in the register should not have
effect.”
An
extract from the draft minutes of the meeting of the Board of the 31st July,
1997 were exhibited. This shows that the application to the Court was based
upon a resolution that
“it
is in the public interest to make an application to the High Court for an order
that during a period to be specified in the order the registration of the name
of Ann O’Ceallaigh in the register shall not have effect.
”
The minutes further show that the President of the Board wished it to be
recorded that as the respondent was also a registered nurse she had a capacity
to practise as a nurse and there was nothing to suggest that she had erred in
that capacity.
The
order sought was granted on the 1st August, 1997. It was ordered that the
registration of the nurse should not have effect pending the hearing of the
proceedings. It was also ordered that the respondent was at liberty to apply
to set aside or vary the order within twenty-four hours notice in writing to
the Board.
1 The
matter came before the President again on the 13th August, 1997. There was
no further evidence before the Court but the respondent was represented by
counsel. An application on her behalf that the Board be required to give an
undertaking as to damages was refused. The order of the 1st August, 1997 was
amended so that the restriction on the respondent applied only to acting as a
midwife but not as a general nurse. By this order the respondent was
restrained pending the hearing of this matter from engaging in the practice of
midwifery. It was further ordered that the special summons should stand
adjourned for hearing on Monday, 13th October, 1997.
On
the 9th September, 1997 the Master made a third party order for discovery on
behalf of the respondent as against the National Maternity Hospital and the
Rotunda Hospital.
On
the 24th September, 1997 the respondent obtained leave to apply for judicial
review to quash the decision of the Board to institute proceedings pursuant to
s. 44 of the Act. The sole ground upon which this order was made so far as
the present appeal is concerned was that in making that decision the Board
breached the guarantee of fair procedures. This was on two bases:
(1) That
the Board did not conduct sufficient inquiries in the circumstances for it to
be satisfied that it was in the public interest to seek such an order;
(2) That
it did not afford the applicant a hearing of any kind before making its decision.
The
next step in these proceedings was an application before the High Court
(Moriarty J.) which was heard on the 2nd and 3rd October, 1997. This was an
application to set aside the section 44 order on the grounds that the Board
could not have been satisfied that it was in the public interest that it should
seek such order. In addition the respondent sought permission to look after
fourteen women who had already engaged her services. The evidence before the
Court consisted of a very long affidavit which had been sworn by the respondent
for the purposes of applying for leave to seek judicial review. In addition
there was a shorter affidavit by the respondent which really covered the same
matters. Insofar as the contents of these affidavits are material to the
present appeal they dealt with the complaints in two ways: (1) That there was
in existence a controversy over home births and that the respondent found
herself in the middle of that controversy; and (2) that there was no substance
in the allegations. These latter averments dealt with the merits both of the
complaints and of the section 44 proceedings and as such were not strictly
relevant to judicial review proceedings. Insofar as they related to the
submission that the Board could not have been satisfied within the meaning of
s. 44(1) two allegations are relevant. First, the respondent was not the
midwife against whom the substance of the allegations contained in the second
case raised by the Master were made. Secondly, the affidavit exhibited a
letter from the mother in relation to the first complaint of the Master which
insofar as it dealt with the fact that a complaint had been made stressed that
such complaint had been made without any reference to her and contrary to
assurances given to her from the Master’s office that it would not be made.
A
further affidavit was also sworn by the Chief Executive Officer in which he
sets out the basis for the Board’s decision on the 31st July, 1997 as
being:
“(1) The
cumulative number of complaints against the same self-employed domiciliary
midwife within a relatively short time frame.
(2)
The
similarity in the nature of the complaints in each case.
(3)
More
particularly, the Board considered it relevant that in each case, Ms.
O’Ceallaigh, according to the allegations and complaints, ought to have
taken steps to have the mother transferred to hospital more speedily than she
in fact did and that this would have minimised the risk to the mothers and
babies in each case.
(4)
The
identity of the complainants. As Ms. O’Ceallaigh points out in her
affidavit, the National Maternity Hospital and the Rotunda Hospital are very
large maternity hospitals. Each of them enjoys a high reputation not only in
Ireland but abroad. It was considered that when, at the same time, concern
about a midwife’s fitness to practise was expressed by the Master and
Matron of these hospitals respectively that the Board had to take such
complaints seriously.
(5)
The
fact that Ms. O’Ceallaigh was requested by letter dated the 27th
November, 1996 to furnish a response to Dr. Boylan’s initial complaint,
had indicated that she would formulate a detailed response. In spite of this
further assurance and reminders she had still not furnished any substantive
response and has still not done so.”
In
the event the High Court (Moriarty J.) refused to set aside the order of the
13th August, 1997 but varied it to allow the respondent to provide the services
for the named women.
On
the 1st December, 1997 the grounds upon which liberty to seek judicial review
had been granted were extended. So far as the appeal before this Court is
concerned there was now a claim for damages on behalf of the respondent.
The
matter came before the High Court (Kelly J.) again on the 17th December, 1997.
The submissions to the Court appear to have been the same as those made to the
High Court (Moriarty J.) on the 3rd October, 1997. In the event it was
ordered that a further five women could be treated by the respondent. The
Court refused to discharge the order of Mr. Justice Moriarty made on the 3rd
October, 1997. However, as a condition for allowing the respondent to treat
the named women the Court ordered that such women had to be notified of
existence of complaints and of their nature which were being made against the
respondent.
The
conditions of the injunction were relaxed on a similar basis on five later
occasions. On the 13th March, 1998 the High Court (Kelly J.) allowed three
further women to be treated by the respondent. On the 25th May, 1998 the
High Court (Kelly J.) allowed eleven more women to be so treated. On the
26th July, 1998 the High Court (Kelly J.) allowed three more women to be so
treated. On the 13th October, 1998 the High Court (Morris P.) allowed eleven
more women to be so treated and on the 16th November, 1998 the High Court
(Morris P.) allowed seven more women to be so treated. Finally, on the 8th
March, 1999 the High Court (Morris P.) made a general order that the injunction
was not apply to any woman who had been given details of the complaints as
required by the order of the High Court (Kelly J.) made on the 17th December,
1997.
As
can be seen from this recital of the orders made in this case the adjournment
of the matter for hearing on the 13th October, 1997 was overtaken by events and
in fact no such hearing ever took place. On the 13th May, 1999 the matter
again came before the High Court (Morris P.). As appears from the order
there were two submissions:
(1) That
the proceedings should be dismissed for failure by the Board to prosecute
expeditiously to final judgment; and
(2) That
the Board had not satisfied the statutory prerequisites for commencing such
proceedings.
The
application was refused. However, the Court (Morris P.) took the view that
the issue as to whether or not the injunction should continue should be decided
and fixed the 18th May, 1999 for a hearing of that matter.
On
the 18th May, 1999 the High Court (Morris P.) treated the issue to be
determined at that hearing as up to what date the order should be made
permanent. Having taken the view that the Court should not act upon
information which was out of date and having no other information before it on
behalf of the Board other than that contained in the grounding affidavits sworn
on the 1st August, 1997 the Court discharged the injunction.
Meanwhile
the judicial review application had been heard by the High Court (McCracken J.)
on the 26th May, 1998 and had been refused.
The
matter now comes before this Court by way of various appeals both from the
order of the High Court (Morris P.) on the 18th May, 1999 and from the order of
the High Court (McCracken J.) on the 26th May, 1998.
On
behalf of the Board it was submitted that the Board had no ongoing obligation
to be satisfied that it was in the public interest for the order to continue.
It was submitted that once the matter came before the Court it was a matter
for the Court to decide. In relation to the respondent's appeal it was
submitted that the Board was in breach of its duty to apply fair procedures (1)
by failing to make adequate inquiries in relation to the complaints and (2) by
failing to notify the respondent that it proposed to apply to the Court.
A
large number of affidavits other than those to which I have already referred
were filed in these several proceedings in relation to the several applications
to the Court. It is not, however, necessary to refer to them. There is
nothing material in any of them in relation to this appeal. In the main they
were affidavits on behalf of women who were supporting applications to the
Court to enable the injunction to be lifted so far as they were concerned; but
there were also further affidavits on behalf of the Board and a number of
affidavits sworn by the respondent’s solicitors.
In
addition to affidavits, evidence was given in court on two occasions. On the
26th May, 1998 at the hearing before the High Court (McCracken J.) the Deputy
Chief Executive Officer gave evidence. In his direct evidence he said that
the facts set out in the affidavit of the Chief Executive Officer were correct.
He said that he was not a nurse; but was responsible for the administration of
the Fitness to Practise Committee. In cross-examination he said that he
acted on specific instructions from the committee which usually met once a
month. It would have seen the documents received from the Master in
relation to the first complaint sometime in January, 1997. Subsequently,
when the two complaints arrived from the Matron he was responsible for seeing
that the procedural steps were taken correctly. There appears to be no
evidence that the Fitness to Practise Committee saw the documentation contained
with these complaints or indeed the complaints themselves until it met on the
5th September, 1997 and decided that there was a
prima
facie
case for the holding of an inquiry. On that date they would have had before
them the documentation before the Board on the 31st July, 1997. Of course,
those of its members who attended the meeting of the Board on the 31st July,
1997 would have first seen the documentation on that date.
Evidence
was also given by the Chief Executive Officer at the hearing in the High Court
(Morris P.) on the 18th May, 1999. In the course of cross-examination the
Chief Executive Officer gave evidence that no member of the Board had seen any
of the affidavits filed in the case. Since the members of the Fitness to
Practise Committee are all members of the Board, it appears to follow that no
member of that committee had ever seen the affidavits either. When asked
whether he could say that the Board was currently satisfied that it should be
making an application to have the respondent suspended from the register of
midwives in the public interest his answer (Q.15) was as follows:
“The
affidavit expresses a view that the only time the Board has ever considered
this was at that time. In representing the affairs of the Board, I say to
you that there were no procedures in statute allowing the Board to reopen this
because the issue moved to the courts. The courts dealt with it from the
date that the section 44 was referred to the courts. The Board is a board in
perpetuity. It moves from one board to the other with authorities moving and
the Act provides for that. In representing the affairs of the Board, all I
can say is that I am authorised to speak for the Board on these matters.
Within that context I would have no way of dealing with it other than making
that statement. I could not say the Board were satisfied. In saying that
nothing has changed right now, that is a statement I make in the authority of
the office that I hold on behalf of the Board.”
This
answer was given in the light of the fact that the Board which was constituted
as of the 31st July, 1997 was replaced in September 1997 save for two of its
twenty-nine members by a totally new board and it was this latter board which
had never seen any of the documentation. The view expressed by the Chief
Executive Officer was again repeated in answer to the following question (Q.
19):
“Q. You
are not seriously suggesting to His Lordship, are you, that the Board is to be
kept in ignorance of what is going on in these proceedings?
A.
Under
section 44 the Board made a decision and that decision resulted in the courts
managing (sic) that section. Essentially, it is not a concern of the Board
once the Board referred the matter to the courts. The Board would expect it
to go that direction and the Court was managing that case from thereon in.”
One
further question (Q.50) and answer reinforces this view.
“Q. What
I can’t understand is either you want this nurse suspended or you
don’t. You have come here today saying that it is for the Court to
decide. Are you asking the Court to suspend her or not?
A.
I
am charged with putting into effect the Board’s decision, and the Board
decided that in the public interest section 44 should be applied. Since that
date the Board have not considered the matter and that remains the
position.”
Dealing
with the procedures of the Fitness to Practise Committee the Chief Executive
Officer said that notice of the inquiry sent to the nurse concerned would
contain a summary of the allegations against her. The documents by way of
notice of the nature of the evidence do not go before the committee until they
are either admitted or proved in evidence. The members of the committee are
not furnished with any other information. They receive all the information at
the same time as the nurse involved in the allegations is receiving the
information.
Before
returning to the facts and the questions of law raised, it is necessary to
refer to several provisions of the Nurses Act, 1985 (“
the
Act”).
The
composition of the Board which comprises twenty-nine members is set out in s. 9
of the Act. Seventeen of its members are nurses from different categories of
nursing and are all elected by nurses. The remaining twelve members are
appointed by the Minister after consultation with such bodies or organisations
as he considers suitable to advise him. Of these twelve members three have
to be registered medical practitioners and one has to be a nurse.
The
Fitness to Practise Committee must consist only of members of the Board. The
majority of the members of this committee must be nurses elected to the Board.
At least one third of the members of the committee must be persons who have
been nominated by the Minister.
As
its quorum is seven, it is possible that the majority in a bare quorum may
consist of persons who are neither nurses nor registered medical practitioners,
though obviously this is unlikely.
The
Disciplinary Code
The
provisions of the Act in relation to fitness to practise are set out in Part V
of the Act.
S.
38 of the Act governs the jurisdiction of the Fitness to Practise Committee.
The section so far as is material is as follows:
“38(1)
The Board or any person may apply to the Fitness to Practise Committee for an
inquiry into the fitness of a nurse to practise nursing on the grounds of -
(a) alleged
professional misconduct, or
(b) allege d
unfitness to engage in such practice by reason of physical or mental disability,
and
the application shall, subject to the provisions of this Act,
be
considered by the Fitness to Practise Committee.
(2)
Where an application is made under this section and the Fitness to Practise
Committee, after consideration of the application, is of opinion that there is
not sufficient cause to warrant the holding of an inquiry, it shall so inform
the Board and the Board having considered the matter, may decide that no
further action shall be taken in relation to the matter and shall so inform the
committee and the applicant, or it may direct the committee to hold an inquiry
into the matter in accordance with the provisions of this section.
(4)
When it is proposed to hold an inquiry ... the person who is the subject of the
inquiry shall be given notice in writing by the Chief Executive Officer sent by
prepaid post to the address of that person as stated in the register of the
nature of the evidence proposed to be considered at the inquiry and that person
and any person representing him shall be given the opportunity of being present
at
the hearing
.”
In
those cases where an inquiry is held s. 38(3)(c) provides that on completion
the Fitness to Practise Committee should make a report to the Board setting out
its findings. Sections 39, 40 and 41 set out the powers of the Board upon
receipt of such report. Under s. 39 the Board has power to direct that the
registration of the name of the nurse concerned should be erased from the
register or that, during a period of specified duration, such registration
should not have effect. Under the provisions of s. 40 the Board has the
power to direct conditions to be imposed to the retention of the name of the
nurse concerned in the register. In both cases the nurse concerned has a
right of appeal to the High Court within twenty-one days of the decision of the
Board. Under the provisions of s. 39, if the right of appeal under that
section is not exercised then the Board may apply
ex
parte
to the Court for confirmation of its decision. By virtue of the provisions
of s. 41 the Board may in addition to or in substitution for its powers under
s. 39 and s. 40 advise, admonish or censure the nurse concerned in relation to
his or her professional conduct.
These
provisions indicate a two part function as between the Fitness to Practise
Committee and the Board. In practice, the Deputy Chief Executive Officer,
who appears to administer the business of the Fitness to Practise Committee,
clarifies with the complainant whether he or she wishes to make a formal
application for an inquiry. If the answer is yes, as in the case of the
first complaint by the Master, then the nurse concerned is asked for her
comments and also to provide her notes and other relevant documentation.
There does not appear to be any practice to have any form of hearing before the
Fitness to Practise Committee makes a decision that there is or is not a
prima
facie
case. Since the Act does not require notice to the nurse until after this
decision has been made, it seems unlikely that that is the practice of the
Fitness to Practise Committee.
If
the complainant does not wish to apply for an inquiry as in the case of the
second complaint by the Master, then it is a matter for the Board. As with
applications by complainants direct to the Fitness to Practise Committee, it
would seem that there is no notice to the nurse by the Board. The Fitness to
Practise Committee would presumably notify the nurse that the application had
been made and seek her comments and notes etc. as in the case of the first
complaint by the Master.
The
Law relating to the Procedure to be adopted
Counsel
for the respondent relied principally upon
Rees
v. Crane
1994 2 A.C. 173. That was a case where the respondent, a judge of the High
Court of Trinidad and Tobago, sought judicial review having regard to the
procedures which had been invoked in an attempt to secure his removal from
office. The relevant provisions of the Constitution of that country required
that in the first instance the Judicial and Legal Service Commission should
apply to the President to set up a tribunal to investigate the question of the
removal of the judge from office. This tribunal would then be required to
report on the facts and to recommend to the President whether or not he should
refer the question to the Judicial Committee of the Privy Council. If he
did, then that Judicial Committee had to consider whether to recommend to the
President that the judge concerned should be removed from office.
In
the particular case, the Chief Justice had excluded the respondent from the
roster for work for the following term. The respondent was informed that he
would not be so included until further notice. Meanwhile, the Judicial and
Legal Service Commission was considering whether or not to apply to the
President to appoint a tribunal to consider the matter. In the event, having
obtained material from the Chief Justice it decided to apply to the President.
The President set up a tribunal and in accordance with his powers suspended
the respondent from office. The first that the respondent knew of these
happenings was through a television report on the day upon which the President
had acted.
The
respondent in that case sought judicial review upon two main grounds:
(1) That
the Chief Justice had acted
ultra
vires
in purporting to exclude him from his office; and
(2) That
the Judicial and Legal Service Commission had acted unfairly in failing to give
him notice that it was considering making an application to the President.
The
matter ultimately came before the Judicial Committee of the Privy Council.
It held that the Chief Justice had acted
ultra
vires
in excluding the respondent from the roster. It also held that the failure
to notify the respondent that the Commission was considering referring the
matter to the President was a breach of fair procedures. It appears from
the report that unlike the position of the Fitness to Practise Committee in the
present case the Commission found no facts nor did it state an opinion, it
merely recommended a particular form of action by the President.
On
the question of fair procedures, the contest was whether or not they required
notification of a preliminary step in administrative action when the person
concerned would be entitled to be represented and heard at later stages.
Dealing with this issue Lord Slynn of Hadley referred to the following from the
judgment of Geoffrey Lane LJ in
Lewis
v. Heffer
1978 1 WLR 1061 at p. 1078 which was as follows:
“In
most types of investigation there is in the early stages a point at which
action of some sort must be taken and must be taken firmly in order to set the
wheels of investigation in motion. Natural justice will seldom if ever at
that stage demand that the investigator should act judicially in the sense of
having to hear both sides. No one’s livelihood or reputation at that
stage is in danger. But the further the proceedings go and the nearer they
get to the imposition of a penal sanction or to damaging someone’s
reputation or to inflicting financial loss on someone the more necessary it
becomes to act judicially, and the greater the importance of observing the
maxim audi alteram partem.”
A
further passage from the judgment refers to what was said by Lord Morris of
Borth-y-Gest in
Wiseman
v. Borneman
,
1973, A.C. 297. In
Wiseman
v. Borneman
,
the issue was whether a taxpayer should be consulted before the Commissioners
of Inland Revenue issued a certificate that there was a
prima
facie
case for instituting proceedings against the taxpayer.
Lord
Slynn said at p. 190:
“Lord
Morris of Borth-y-Gest at pp. 308 and 309 stressed the importance of observing
the rules of natural justice. He added, at p. 309:
‘The
principles and procedures are to be applied which, in any particular situation
or set of circumstances, are right and just and fair’.
He
continued:
“We
were referred to many decisions. I think that it was helpful that we should
have been. But ultimately I consider that the decision depends upon whether
in the particular circumstances of this case the tribunal acted unfairly so
that it could be said that the procedure did not match with what justice
demanded.”
Lord
Slynn also cited the following passage from the same case:
“It
is, I think, not entirely irrelevant to have in mind that it is very unusual
for there to be a judicial determination of the question whether there is a
prima facie case. Every public officer who has to decide whether to
prosecute or raise proceedings ought first to decide whether there is a prima
facie case, but no one supposes that justice requires that he should first seek
the comments of the accused or the defendant on the material before him. So
there is nothing inherently unjust in reaching such a decision in the absence
of the other party.”
He
then referred to four cases in which
Wisemen
v. Borneman
had been applied, in that no notice was required to be given to the person
affected before action was taken. Where there was need for immediate action
in order to protect third parties:
Reg
v. Birmingham City Council Ex Parte Ferrero Limited
1993 1 A.E.R. 530; before the Secretary of State appointed an inspector under
the Companies Acts:
Norwest
Holst Limited v. Secretary of State for Trade
1978 Ch. 201; before a notice under the accounts rules was served on a
solicitor requiring him to produce documents for inspection:
Parry
Jones v. Law Society
1969 1 Ch. 1; and before a decision was made by the executive of the panel on
take-overs and mergers to institute disciplinary proceedings on the basis of a
prima
facie
case:
Reg
v. Panel on Take-overs and Mergers, Ex Parte Fayed
1992 BCLC 938.
He
then continued on p. 191:
“It
is clear from the English and Commonwealth decisions which have been cited that
there are many situations in which natural justice does not require that a
person must be told of the complaints made against him and given a chance to
answer them at the particular stage in question. Essential features leading
the courts to this conclusion have included the fact that the investigation is
purely preliminary, that there will be a full chance adequately to deal with
the complaints later, that the making of the inquiry without observing the audi
alteram partem maxim is justified by urgency or administrative necessity, that
no penalty or serious damage to reputation is inflicted by proceeding to the
next stage without such preliminary notice, that the statutory scheme properly
construed excludes such a right to know and to reply at the earliest date.”
Lord
Slynn applying these principles held that the respondent should have had notice
of the proceedings before the Judicial and Legal Service Commission. On the
question of damages it was held that the respondent was entitled to damages for
breach of his rights.
The
judgment also referred to a passage from the judgment of Lord Morris in
Furnell
v. Whangarei High School’s Board
1973 AC 660 where having said at p. 679 of that report:
“It
has often been pointed out that the conceptions which are indicated when
natural justice is invoked or referred to are not comprised within and are not
to be confined within certain hard and fast and rigid rules: see the speeches in
Wiseman
v. Borneman
”.
He
continued:
“Natural
justice is but fairness writ large and juridically. It has been described as
‘fair play in action’ nor is it a leaven to be associated only with
judicial or quasi-judicial occasions.”
Much
of what is contained in this judgment is clearly referable to the present case.
Clearly, as in
Parry
Jones v. The Law Society
where the right to proceed does not arise until a particular opinion has been
formed, it is not the law that the person who may be affected by the
proceedings based upon that opinion should be informed prior to the issue of
those proceedings so as to be able at that stage to argue to the contrary.
His or her right to be heard arises once the proceedings are put in train.
The question in any particular case as to when the person affected has a right
to be heard depends upon the existence of the relevant procedure. There can
be no right to be consulted until some step has been taken to set the
procedures in motion. Once that has been done, the right to be consulted,
the right to be heard etc. will depend upon what is proper, what is fair.
There can be no hard and fast rule. It is not the step in the procedures or
the stage which they have reached which governs the right. What might
require notice in one case may not require it in another for varying proper
reasons, the most obvious being urgency or other necessity. It is entirely a
question of what is fair and proper.
This
case is stronger than
Rees
v. Crane
in relation to the giving of notice to the person affected. In
Rees
v. Crane
,
the Judicial and Legal Service Commission did not decide anything in relation
to the allegation. It recommended that a process should continue. Here,
the process had commenced once the complaints were made. The finding by the
Fitness to Practise Committee that a
prima
facie
case existed was a further step in that process. Certainly, the cases show
that where the commencement of proceedings is dependent upon an opinion that a
prima
facie
case exists notice to the person affected is not required. But that only
sets the process in train. In such a context it has a different connotation
to that when found by the Fitness to Practise Committee.
The
reality is that fairness of procedures is fair play in action to quote Lord
Morris. Matters which may have a serious adverse affect on the rights, let
alone the livelihood, of the person affected should not be considered behind
closed doors and without notice to such person once it becomes appropriate that
such matters should be considered by an impartial body.
In
relation to the later three complaints, the Fitness to Practise Committee did
not follow its normal practice. The Fitness to Practise Committee did not
notify the respondent nor did it seek her comments nor ask for her records
insofar as they did not already have them.
The
practice observed in relation to the first complaint by the Master is not
required by the Act. However, since the Act carries a presumption of
constitutionality, its provisions also carry the presumption that the powers
and functions granted by it will be exercised in accordance with fair
procedures.
What
is fair is dependent upon a number of factors. The most significant one is
the manner in which the exercise of the particular power or function has
impinged upon the rights of the person affected. In my view, as provided by
the Act, there must be a filtering system before a decision is made to hold an
inquiry. It is a very serious matter for the nurse concerned and it would
be unfair for the Fitness to Practise Committee to decide to hold an inquiry
without recourse to her having regard to the additional strain such an inquiry
would impose.
A
similar filtering system is provided expressly under the Garda
Síochána (Complaints) Act, 1986. Under that Act there is a
full inquiry and report before the Board determines that the matter should be
taken further. Admittedly, such an inquiry is expressly required by that
Act. But, in my view, where a step takes place in an administrative process
which will increase the importance to be attached to the matter, then fair
procedures would require some form of inquiry which in the ordinary way should
involve
inter
alia
the person to be affected.
In
the case of the nurse, it is sufficient that inquiry should be made of her in
the first instance. Such further inquiries as the Fitness to Practise
Committee may make and whether they hear the nurse will depend upon her
comments and her documentation. Unfortunately, the respondent did not
respond to the request for comment and documents from the Fitness to Practise
Committee in relation to the first complaint by the Master before it decided
that there was a
prima
facie
case. It was fully entitled to do so in the absence of an answer to its
request since it could not be said that the respondent was not given ample time
to reply. Nor did the Fitness to Practise Committee need any further
information beyond that supplied by the Master and the facts contained in the
complaint as these were matters within the professional competence of its
members to understand. It is perhaps a sad comment on its procedures that
the fixing of a date by which the respondent was required to reply appears to
have been prompted not by the passage of time but by a reminder from the Master.
In
my view, there was no breach of fair procedures in relation to the decision of
the Fitness to Practise Committee that there was a
prima
facie
case for holding an inquiry into the first complaint of the Master.
In
relation to the other three complaints, the situation is quite different.
There can be no obligation to inform a nurse that an application is going to be
made to the Fitness to Practise Committee. Such an application does not
prejudice the nurse. It is the commencement of the process. Her position
is protected by the obligation of the Fitness to Practise Committee to exercise
fair procedures once it becomes involved. Obviously an application for an
inquiry by anyone other than the Board could not be notified to the nurse
before it is made. There is no reason for so doing because the Board may be
acting on a complaint by someone else.
Once
the applications had been made to the Fitness to Practise Committee, then that
body had an obligation to apply fair procedures. That necessitated the
making of inquiries. None was made of the respondent. How the inquiry
should have developed thereafter and what other procedures should have been
adopted would have depended upon the manner in which the respondent treated the
complaint, and bearing in mind that disputed matters of fact did not fall to be
decided in the course of such inquiries. Since the respondent was not
contacted before the decision was made in each case that there was a
prima
facie
case, there was a breach of fair procedures in relation to all three complaints
once they had become applications for an inquiry.
Power
of the Board to apply to the Court
S.
44 deals with proceedings in court.
It
is as follows:
“44
(1) Whenever
the Board is satisfied that it is in the public interest so to do, the Board
may apply to the High Court for an order in relation to any person registered
in the register that, during the period specified in the order, registration of
that person’s name in the register shall not have effect.
(2)
An
application under this section may be made in a summary manner and shall be
heard otherwise than in public.
(3)
The
High Court may make, in any application under this section, such interim or
interlocutory order (if any) as it considers appropriate.”
S.
44 provides for a complementary procedure to that contemplated by s. 38. The
Board may wish to protect the public pending proceedings before the Fitness to
Practise Committee by a speedier procedure than that provided for by the
holding of an inquiry by that Committee where it is justifiably concerned that
the public interest requires that protection. Accordingly, it is given a
right of action which is exercisable by applying to the High Court. The
parties, and in particular the Board, seem to have regarded this right as a
right to obtain an immediate injunction on an
ex
parte
application by the Board. In my view, that is not what the section provides.
S.
44 gives the Board the right to bring proceedings when they are satisfied as is
required by the section. Once that has been done, what orders, if any, are
made and in accordance with what procedures are matters for the Court. But
the Board cannot just sit back and do nothing. If it gets an interim or
interlocutory order, not only must it follow the directions of the Court but
must take steps to obtain a final order.
The
section provides for proceedings in the course of which the relief referred to
in the section may be granted. Like any other proceedings before the
courts, where it is appropriate, interim and interlocutory orders may be
granted pending the final order. This is provided for by subsection (3).
In this case, the relief was sought
ex
parte
and the order made on the 1st August, 1997 was an interim order. Thereafter,
once the respondent had been notified of the proceedings, all the orders were
interlocutory orders.
On
the 13th May, 1999, the High Court (Morris P.) doubted whether a final order
had ever been made in the S. 44 proceedings and fixed the 18th May, 1999 for
such a hearing. The order on that date was a final order. Up to that
date, the injunction in existence was an interlocutory order. The order made
discharged that interlocutory order and brought the proceedings to an end.
As Morris P. said, the Board could reapply if it saw fit. Such application
would, however, not have been by way of an application whether
ex
parte
or on notice in those proceedings, but by an application in fresh Section 44
proceedings.
It
is submitted on behalf of the Board that the learned trial judge on the 18th
May, 1999 dealt with the wrong issue; that he held that there was an ongoing
duty on the Board to continue to be satisfied that it was in the public
interest that the order should be maintained. The passage with which the
counsel takes issue is:
“In
my view it is incumbent upon the Board to reconsider the evidence available to
it at the present time and not, so to speak, rest on its oars as of the date
when the three letters came in. It is only by reviewing the position that it
can possibly form the view that it is in the public interest to apply to the
Court, and it is only on that basis that the Court can proceed to consider
making the order sought.”
I
do not see in that passage any reference to ongoing duty in the sense for which
the Board contends. In the previous paragraph the learned trial judge had
made it quite clear what he regarded the issue to be. He had said:
“The
Court must then go on to consider whether or not it is in the public interest
to make the order sought.”
The
judgment was being given two years after the matters had been considered by the
Board and when it was the duty of the Court to determine whether the order
should be continued. The first sentence of the cited passage is clearly
correct. So is the second sentence, because how otherwise could the Board
persuade the Court to continue the order. What the learned trial judge is
pointing out is that if the Board wants the relief to be continued there is an
onus on it to satisfy the Court that it should be continued and that what it
might or might not have been its opinion two years before was immaterial.
That
was the essence of his decision. Insofar as what he said elsewhere in his
judgment might have been interpreted as expressing the view that the order
under the section could be upheld only so long as the Board continued to be
satisfied, he would have been wrong. The Board had a duty to be satisfied
before bringing the proceedings. Having done so, it was in the position of
any other litigant who wanted a court decision in its favour. Such person
must at the appropriate time adduce evidence to support its case.
As
already indicated, proceedings pursuant to s. 44 are different from those
before the Fitness to Practise Committee. In the latter proceedings, the
Fitness to Practise Committee has to determine whether the nurse concerned has
been guilty of professional misconduct; or is unfit to practise her profession
by reason of physical or mental disability. In the former proceedings, the
issue is different. It is whether it is in the public interest that the
nurse concerned should be restrained from practising his or her profession for
a period to be indicated.
Nor
is it necessary in the case of an application - in my view in the exercise of a
right to action - to proceed
ex
parte
.
The initial application to the Court can be made for an interlocutory order
in which case it would have had to be on notice to the nurse concerned. One
of the problems about section 44 is that unlike sections 40 and 41, it does not
provide for a lesser sanction.
Section
44 proceedings are part of the disciplinary code. As with s. 38
proceedings, nothing can happen until a complaint is made to the Fitness to
Practise Committee or facts come to the notice of the Board which would enable
it to make such a complaint. Once that is done, then subsequent steps must
be carried out in accordance with fair procedures. I have already
indicated
what is required in that regard of the Fitness to Practise Committee.
The
power of the Board under s. 44 is additional to the powers contained in s. 38
and the following sections. The need to exercise such power will probably
arise contemporaneously with the complaint. Although there are two bodies,
the Board and the Fitness to Practise Committee, since the latter comprises
only members of the Board, in practice knowledge coming to one should come to
the other at the same time.
When
a complaint is made, it can be of varying degrees of seriousness. Normally,
it would be expected that the Fitness to Practise Committee would either
indicate to the complainant that there was nothing improper in the conduct
complained of, or, if there might have been, set about its customary procedure
to see whether there were
prima
facie
grounds to establish an inquiry.
In
exceptional cases, the nature of the complaint might be so serious that the
need to consider bringing an application under s. 44 might arise. If it was
considered by the Board to be so serious, if true, then as a matter of urgency
it might be appropriate to apply to the Court
ex
parte
and without notice to the nurse concerned. Or if the Board felt it
necessary to clarify some matter, it might seek such clarification from the
nurse concerned first. In all other cases, it would be appropriate to
proceed to discover if there was a
prima
facie
case. In the course of such inquiries, the matter might take a more serious
turn, and, if so, then s. 44 proceedings might be issued and relief sought by
such procedure as the then knowledge of the Board might require.
The
procedure adopted by the Board did not suggest the necessary urgency. The
procedure under s. 44 was never intended to be subordinated to such procedural
niceties as were required to identify the person who should be on record as the
complainant. In my view, unless the issue as to the need to issue
proceedings under s. 44 is adverted to immediately the Board has become aware
of the ground which would justify such proceedings, then it is unlikely that
such proceedings would be justified. Such ground would generally be apparent
from the nature of the complaint itself, but might become clearer in the course
of the investigative procedures required. But in all cases, the relevant
medical facts must be brought to the attention of those who have the
professional competence to understand them.
The
relevant matters to be considered by the Board to determine whether the matter
is sufficiently urgent to apply to the Court under the procedure provided by s.
44 are: (1) the nature of the complaint upon which the application for an
inquiry before the Fitness to Practise Committee is based; (2) the apparent
strength of the case against the nurse; and (3) whether in the event of an
adverse finding, the appropriate sanction would be to “
strike
off”
the nurse either permanently or for a definite period.
A
feature of this case is that although it is brought on behalf of a professional
body, no person has provided any such knowledge for the benefit of the Court.
Regrettably, the affidavits have been sworn and evidence given by
administrators without any professional knowledge whatsoever. The
ex
parte
application for the section 44 order was made in such a way that the Court was
deprived of any real evidence. Of course, the complaints were before the
Court, but what the facts contained in the letters of complaint meant to a
professional nurse were not explained. In the circumstances it is not
unremarkable that Morris P. took the view of the complaints which he did. In
effect Costello P. was left in the dilemma of refusing the application or
perhaps allowing the respondent to continue in practice to the danger of the
public. He met this by allowing the respondent to re-enter the matter on
twenty-four hours notice.
In
my view, applications of this nature should not be based upon hearsay as to the
substance of the application. In many cases, the Court criticises the manner
in which an application has been brought because the grounding affidavit has
been sworn by the solicitor rather than by the client. This is in effect a
similar situation. The Chief Executive Officer knew of the complaints and
the decision of the Board, but he did not know the medical basis upon which its
decision was based, nor was he a member of the Board.
This
was a clear case in which the Court should have been told the significance of
the complaints including the nature of the risk whether to the child or to the
mother or to both and how such conduct, if established, would mean that the
nurse concerned was unfit to continue in practice. Further, the application
could well have been brought on notice to the respondent having regard to the
time lapse which had already taken place.
Had
this been done, the Court would have been in a position to hear the
respondent’s side of the story, though in the particular instance her
answer was not available until the end of September the same result might well
have ensued. But, if so, the Court would have had before it in
layman’s terms the real nature of the case against her.
Since
then the section 44 proceedings have had a long, and in my view, unnecessary
history. There are two basic reasons for this. The first is the
insistence upon the part of the respondent's advisors to seek to set aside the
section 44 proceedings instead of dealing with the issue which arose in them.
The submission that the section 44 proceedings were improperly commenced has
been litigated on a number of occasions notwithstanding the fact that on each
previous occasion the submission was rejected.
It
was rejected by the High Court (Moriarty J.) on the 3rd October, 1997. It
was litigated on that date notwithstanding the fact that liberty to seek
judicial review on the particular ground had been granted by the High Court
(Barr J.) on the 23rd September, 1997. Notwithstanding this refusal it was
argued again before the High Court (Kelly J.) on the 17th December, 1997 and
again rejected. It was argued again before the High Court (McCracken J.) at
the hearing of the application for judicial review on the 23rd May, 1998, on
which date it was again refused. It was next argued before the High Court
(Morris P.) on the 13th May, 1999 when it was again refused.
The
reality of this approach to the proceedings was that the merits of the matter
were never being dealt with by the Court. Two matters were of concern to the
respondent, one was the unfairness of the procedures before the Board, the
other was the merits of the Section 44 application. Faced with the situation
where both the procedures and the merits could have been litigated, it is
unfortunate that only the procedures were contested when the real contest
should have been on the merits. This was done regrettably in order to seek
to maintain a claim for damages, something which would not have been lost by
also contesting the merits.
As
I have indicated for the Board to have been satisfied three matters had to be
considered: (1) The nature of the complaint; (2) The strength of the case
against the nurse; and (3) the likely sanction in the event of a finding
against the nurse. These were matters upon which the merits of the S. 44
proceedings were based. Whether there had been professional misconduct did
not arise to be decided. Unfortunately, counsel for the respondent insisted
upon arguing the technical point that the Board could not have been satisfied
within the meaning of the section without further inquiry and notice to the
respondent. But once the matter was in the court domain, the respondent was
on notice and could and should have contended that on the facts as then before
the Court, there was no case to support a striking off even if the Fitness to
Practise Committee was to find professional misconduct.
It
is not the function of this Court to make any findings of fact in relation to
the merits, whether of the issues before the Fitness to Practise Committee or
the issues in the Section 44 proceedings. Nevertheless, there are comments
which can be made in relation to the reasons given by the Chief Executive
Officer in his affidavit sworn on the 1st October, 1997. First, the
seriousness of the complaint is a matter for the body to which the complaint is
made. The fact that complaints were made by the Master and the Matron do not
make them any more serious than they are. What is relevant in the fact that
complaints have come from such source is that they are entitled to greater
weight, but that is not the same thing as saying they must be serious.
Further, having regard to the evidence put forward by the respondent in answer
to the charges it seems relatively clear that the bodies considering the matter
could have taken the view that the respondent was in a difficult position in
each of the three cases in which she was involved. Her patients did not want
to go to hospital and in particular did not wish to have the births of their
babies by caesarean section. Having regard to these matters, it might have
been seen that the respondent had to balance those wishes against her
professional judgment. That she must have done so seems to follow from the
fact that in each case a complaint against her arises as one of delay in
transferring the mother to hospital rather than any wrong action in the course
of her treatment of her patients. I have not previously referred to the
merits of the respondent’s defence to the charges against her. The
matters to which I have referred are apparent from documents exhibited in the
affidavits before the Court.
The
second cause of the length of these proceedings lies in the attitude of the
administrators appointed by the Board. They should have realised that before
a court should be asked to make such a serious order that affidavits should be
sworn on behalf of the Board by its professional members explaining the nature
of the complaints, how serious they were and if established what the
appropriate sanction was likely to be. Not only was this not done originally
but no effort was made to do it thereafter. It is, in my view, unacceptable
that any person should have given the answers in cross-examination which were
given by the Chief Executive Officer on the 18th May, 1999 at the hearing
before Morris P. Those answers showed a total lack of understanding of what
the proceedings were about and the obligations of the Board in relation
thereto. They seemed totally to lack understanding of the seriousness of the
proceedings from the point of view of the respondent. The position of an
administrator is to administer not to decide technical matters. I can only
say that I regard it as totally unacceptable that the Chief Executive Officer
should have thought that it was unnecessary to notify twenty-seven Board
members about something of which they knew nothing but which was being carried
on in their name; or to let them consider the matter in the context of the
Court proceedings.
The
instructions to the Board’s legal advisors to oppose several applications
by the respondent should have come from the Board after consideration of the
relevant matters and not from him. The essence of those applications related
to professional matters about which he was not qualified to give instructions.
His basic answer is that the Board had no ongoing obligation to be satisfied
that it was in the public interest that the order should be made. That
obligation was certainly necessary to commence the proceedings. Once they
had been commenced, it was no longer relevant. But there was an ongoing
obligation of a different nature. It was to be fair to the nurse and to the
public as well as the complainants and to ensure that, whenever the Court came
to deal with the matter, its attitude based upon its current knowledge of the
facts would be put before the Court. The Fitness to Practise Committee
dealt with ongoing matters at its monthly meetings. There seems to be no
reason why the Board could not do the same at its quarterly meetings or at
other times when court applications so required.
I
fully agree that the date upon which the Board has to be satisfied is the date
upon which it makes its application to the Court originally. That is the
date upon which the summary summons is issued. After that, it has to take
steps to obtain a final order. As a professional body, apart from its duty
to balance the rights of those immediately concerned it also had obligations
towards the members of the profession. Further, however, once it was sought
to amend the injunction by allowing the respondent to treat named women, it was
incumbent upon the Chief Executive Officer to bring these matters to the
attention of the Board for its decision as to how to meet the applications.
It was quite inappropriate for the applications to be met on the basis of the
information available to the Board on the 31st July, 1997. As each
application came before the Court it became more and more inappropriate for the
Chief Executive Officer not to have consulted his board.
This
attitude on behalf of the Chief Executive Officer was equally a matter of
concern to Morris P. The following exchange of questions and answers took
place at the end of his evidence.
Counsel: Are
you aware of anything in the history of this case, either in terms of
information you have discovered or anything else, which would in your view
result in alleviating the concern or diminishing the concern of the Board which
had expressed in July, 1997?
A: In
my position I have no authority to change any attitude of the Board other than
the one that was expressed at that time, and there is nothing that I feel I can
procedurally bring about a change to that attitude.
President: Why
would that be? If you had an individual who was applying to the Court for an
injunction, would you not think it would be appropriate for him to apprise
himself of the up to the date situation before he returns to the Court and ask
for the injunction to be made permanent?
A: The
case here has arisen within the week. All I can say is that within the time
we were alerted that this case was going to go ahead today it just would not
have been possible anyway. I don’t think it would generally have
entered my mind to do it because there are matters that have been before the
courts for a number of months on numerous occasions. While they know they
are going on Board members are at some distance from it. We all are to some
extent in that the courts are dealing with the matter.
President: I
see your point. My point is that an injunction was granted in a hurry
because here was this lady who was seen at that time to be a menace to the
community, and we are now considering whether it should be made permanent.
Indeed, an awful lot of water has gone under the bridge since the original
order was made and an awful lot of information has come in. Before the Board
come back to court and ask the Court to continue the injunction and make it
permanent, surely they should apprise themselves of all the information that
has come to hand and not simply say that they made a decision in July, 1997 and
they are not going to bother looking at it in the meantime?
A: The
difficulty that would arise, in my opinion, is that the Board as such would
have to consider all the matters before they have been put into the Court
proceedings. In considering all of that they would has a board, including
members of the Fitness to Practise Committee, become aware of all the aspects
of these cases. In a sense there is a dilemma here as to the purity of the
process of the inquiry itself that they would be in receipt of information and
of issues. That may contaminate their thinking in some way. That is the
only thing I am saying.
President: Very
good.
That
last answer does not really exonerate him from not bringing the matter back to
the Board. The Board had decided in the sense of being satisfied that it was
in the public interest that the nurse should be prohibited from carrying on her
profession. Yet he saw nothing wrong with the members of that Board being
also some of them the members of the Fitness to Practise Committee which was
going to consider the complaint that the respondent had been guilty of
professional misconduct. Perhaps this problem arises from the necessity that
the Fitness to Practise Committee members should also be members of the Board.
That is the statutory position, but it cannot excuse the failure of the Board
to be consulted and then to take such steps as it considers proper.
Conclusion
It
is now necessary to consider whether or not the appeal and cross-appeal should
be allowed. As regards the order made on the 18th May, 1999, this is a final
order. The Board did not put before the Court any evidence upon which the
Court could have continued its order and the injunctive relief which it had
granted. In my view the order it made was a proper order and I would dismiss
the appeal in relation to that order.
In
relation to the judicial review proceedings, I accept that there must be
situations when the matter appears to be so serious that it may be advisable
for the protection of the public for the Board to apply
ex
parte
to the Court under the provisions of s. 44. This however was not one of
them. In my view, the Board should have made more inquiries before seeking
the order in the present case. It was four months before the Master sought
to make any complaint in relation to the first matter. It was a further
nine months before the Board made its decision to apply to the Court. While
there was much less delay in relation to the other three complaints, the time
to move with such speed was when the complaints were received from the Matron
in June, 1997. This would have enabled the matter to have been heard on
notice to the respondent and while there was still a month of the legal term
remaining. In my view, there was a failure by the Board to adopt fair
procedures. I would, accordingly, allow the appeal by granting declarations
to that effect. Such declarations would relate also to the findings of
prima
facie
cases by the Committee in relation to those complaints not brought to the
attention of the respondent.
There
is one further matter which concerns me. In relation to the second complaint
by the Master, the nurse who accepted responsibility has not been subjected to
disciplinary proceedings nor does it seem appropriate that she should now be so
subjected. However, the fact that a
prima
facie
case was found as against the respondent in relation to that complaint lays the
Fitness to Practise Committee and the Board open to the perception that each
has compromised its independence.
© 2000 Irish Supreme Court
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