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Tarrade v. Northern Area Health Board  IEHC 32 (15th May, 2002)
NORTHERN AREA HEALTH BOARD
KANE AND JEFF KANE
NORTHERN AREA HEALTH BOARD
FOGARTY AND ALBERT FOGARTY
NORTHERN AREA HEALTH BOARD
HERREN REDMOND AND THOMAS REDMOND
NORTHERN AREA HEALTH BOARD
of Mr. Justice Roderick Murphy dated the 15th day of May, 2002.
four Applications for Judicial Review against the Northern Area Health Board
concern one particular common issue which is the mootness of the Application at
the time of hearing, save for the issue of damages.
Applicants sought an Order of Mandamus compelling the Health Board to provide
domiciliary midwifery services to each of the Applicants who, at the time of
the Application was with child. The Application was made pursuant to Order 62
of the Health Act, 1970
. Each of the Applicants is a persons with full
Applicants and their spouses also sought damages.
leave to apply for Judicial Review was ordered by Mr. Justice Kelly on the 13th
of April, 2000. In the case of
Mr. Justice Lavan granted leave on the 13th of May, 2000 and in the case of
Mr. Justice O Caoimh granted leave on the 22nd of May, 2000.
Tarrade’s baby was due on the 10th of June, 2000. It was her first child
and she was seeking birth at home. Ms. Kane and her husband were expecting
their third child on the 15th of July, 2000. The Fogarty’s were
expecting their third child on the 29th of August, 2000 and the Redmond’s
were expecting their second child on the 14th of June, 2000. All wanted to
have their children at home with only a midwife in attendance. Reasons were
given in the respective Affidavits of the reasons why they preferred home
deliveries and the cost of same. None were members of any health insurance
scheme. They refer to the advice given to them by their common Solicitor,
MacGeehin and Toal who advised that they were entitled under the Health Act,
. They were further advised by their Solicitor that if the Health Board
has no domiciliary midwife in its employment, then the very least they should
provide expectant women with the full cost of obtaining such services. On
their instructions the Solicitor wrote to the Health Board seeking the services
on their behalf. The letters were dated between the 24th of March, 2000 and
the 9th of May, 2000. Reference in the letters to an arbitrary grant of
£600 or £650 is made for those who contract privately with midwifes
each say that they are not in a position to contract privately with a midwife
and any such proposal would not be acceptable. The first three Applicants had
taken the step of contacting midwife Philomena Canning who came to the
conclusion that each of those Applicants was a suitable candidate for home
birth and that the midwife would be willing to take her on as a client. Mrs.
Redmond had engaged the services of midwife Ann O’Ceallaigh who
proclaimed her to be a suitable candidate for home birth. Mrs. Redmond’s
Solicitor refers to a puzzling pattern which has been followed in several
recent cases that they had. The Health Board asked for an assessment to be
carried out by a public health nurse and by a nominee of Holles Street Hospital
who have their own birth scheme. The deponent questioned the point of this
all cases the Health Board was asked to reply within a week.
net issue, the Applicants submit, is whether the Health Board has a legally
enforceable obligation to provide domiciliary midwifery service for the
Applicants. Where no such service exist whether they have an obligation to
compensate the Applicants for reasonable costs and expenses incurred in hiring
would appear that the Health Board did not pay the grant to any of the
- (1) A Health Board shall make available without charge medical,
and midwifery services for attendance to the health, in
of motherhood, of women who are persons with full eligibility
persons with limited eligibility.
A woman entitled to receive medical services under this Section
choose to receive them from any registered medical practitioner
is entered into an agreement with the Health Board for the
of these services and who is willing to accept her as a
When a woman avails herself with services under this Section for a
taking place otherwise than in a hospital or maternity
the Health Board should provide without charge obstetrical
to the extent as they may be specified by regulations made by
Applicants referred to the judgment in
-v- The Southern Health Board
(unreported Supreme Court decision, 14th of October, 1998). The legally
enforceable obligation was stated to apply to all Health Authorities to provide
mothers who wanted to have their children at home with the services of a midwife.
the present cases the Health Board does not have its own midwifery services.
The Applicants say they were constrained to hire independent midwifes. They
say that they are entitled to be compensated by the Health Board for incurring
that expense. While the statutory duty can be discharged by supplying a
registered medical practitioner qualified and midwifery, where such
practitioners no longer deliver the only persons who can now do that outside of
hospitals are independent midwives such as Ms. Canning and Ms. O’Ceallaigh.
issue of a mootness arises because each of the babies was born before the
hearings of these actions. In
Maguire -v- The South Eastern Health Board
(J.R. 346 of 1999: Judgment of Finnegan J. (as he then was) of the 25th of
January, 2001 the objection to mootness was upheld. In the present cases the
Applicants seek damages and the Applicants submit, on that ground, the
decision can be distinguished. This is so because there remains a live issue
to be tried. If the Applicants succeed they will be awarded damages.
is further submitted that it is virtually impossible to ensure that a Judicial
Review dealing with such an issue could be heard and determined before a child
is born. This would have the effect of denying mothers their constitutional
right of access to the Courts. The Applicants submit that mootness objections
arising from the comparatively brief duration of pregnancy has been regularly
rejected in cases relating to abortion (see
410 US 113 (1973)) and a constitutional texts commenting thereon.
Applicants submit that it is unfair and invidious discrimination against women
and contrary to Article 41 of the Constitution to apply a mootness argument.
In relation to equal pay
(177/88) (1990) ECR 3941 rejected the objection to mootness.
Costello P. in
-v- Minister for the Environment
(High Court 11th of March, 1997) in relation to an issue arising out of the
1995 Divorce Referendum for which had taken place stated at page 22 as follows:
possibility that other referenda will take place in circumstances
to those relating to the 15th Amendment is not a fanciful one
the issue raised by the Plaintiff may well arise again. It is
proper that the Court should clarify the Minister’s legal
for the Applicants submit that the Court should, in a similar manner, clarify
the Health Board’s legal obligations under Section 62 of the 1970 Act.
McEnroy, S.C., for the Health Board, objected to the Application on the ground
that it was, indeed, moot. All cases were adjourned to await Mr. Justice
Finnegan’s judgment in
in April, 2001. The matters had been adjourned from December, 2000.
relation to damages which the Applicants say they can now claim, Counsel for
the Health Board says that even if there are enforceable rights they do not
automatically give rise to an action for damages. There is no private law
remedy to damages. Medical card holders rights do not encompass a right to
action for damages.
where substantive relief is not available, then a private law remedy in damages
cannot be granted.
case is about the recognition of a new profession that of independent midwives
at a new fee structure together with expenses. It is also about the funding of
services that eligible patients elect to obtain.
claim for a discrimination arises only where marital status is the ground.
There is no discrimination in the provision of health services to the extent
argued by the Applicants.
case turns on its own facts and particularly where it depends on uniquely human
circumstances of the Applicants giving birth.
Court should not be used to make policy statements: this is clearly the remit
of the Health Boards.
issue of discrimination is misunderstood.
the mootness argument deprives women of their case given the delay in getting
the case on then it should be rejected.
issue is damages. Perhaps the Applicants have no right to damages but it is an
issue. The Applicants are looking for damages for breach of a public law
-v- Mayo County Council
Applicants are seeking a declaration that Section 62 requires the Health Board
to make services available. Where it refuses to make such services available
then it is an obligation to compensate those who make alternative arrangements.
DECISION OF THE COURT
is clear from the decision in
that the Court has already determined the issue of mootness. The
Applicant’s are not entitled to pursue claim which has been adjourned
pending and given that decision.
only issue which is alive is that of damages, as clearly stated by Counsel for
the Applicants. This raises two issues:
Whether a right to damages exists in the absence of a positive
of a substantive claim, and
Whether damages can be awarded for an alleged breach of public
seems to be clear that the obligation of the Health Board is a public
obligation under Section 62 of the Act. The Act provides for services by a
medical practitioner. Midwives are not medical practitioners even though they
may be more experienced in midwifery particularly where medical practitioners
no longer hold themselves out as obstetricians. This is clearly a policy
matter for the Health Boards and for the medical profession. It is not for the
Court to second guess. This policy nor, indeed, does the Applicants case
a case is moot, then clearly the Court cannot grant any substantive remedy.
The question then arises whether damages can, in itself, be a substantive
remedy. Damages depends on a breach of obligation which, if not proven, does
no authority has been advanced as to the awarding of damages for, allegedly, a
public obligation breach. Such a claim is subsidiary.
isn’t necessary for the Court to determine the substantive issue: the
application is moot; damages as a subsidiary issue cannot arise in law without
there being a breach.
all four applications stand dismissed.
© 2002 Irish High Court
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