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Cite as: [2000] 4 IR 54, [2000] 4 IR 102, [2000] IESC 21

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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

14. This appeal involves the construction of section 44 of The Nurses Act, 1985 which states:

“(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.


Section 44 of the Act of 1985 provides 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.”


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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