Alan Bennett v Minister for Defence and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Noonan |
| Judgment Date | 20 January 2015 |
| Neutral Citation | [2015] IEHC 23 |
| Court | High Court |
| Date | 20 January 2015 |
[2015] IEHC 23
THE HIGH COURT
BETWEEN
AND
Judicial Review – Defences Forces – Medical – Appeal – Irrationality – Flawed Investigation – Order of Certiorari – Practice and Procedures – Classification – Disability – Ultra Vires
Facts: In the case at hand the applicant, a member of the Permanent Defence Forces, had applied for re-engagement and underwent a medical examination for that purpose. The result of that examination was that he was deemed ineligible and his career in the Naval Service was to be over. He appealed the decision to a Medical Board which upheld the original decision. In these judicial Review proceedings, the applicant sought, an order of certiorari quashing the Board”s decision. It was submitted by the applicant that he had been awarded constitution grade 2 which applied to persons with minor impairments or disabilities when it is common case that he had none. Accordingly this was deemed to be irrational. It was further submitted that the respondents acted ultra vires in applying criteria to his classification that were not provided for in the regulations and that the Medical Board fell into error in considering that their sole function was to determine whether the original classification was correct at the time it was made and to have no regard to subsequent events or the position as it obtained on the date of the medical board review. He further complained that the failure of the Board to conduct any clinical examination was an additional flaw.
Held by Justice Noonan in light of the available evidence and submissions presented that the duty of a Medical Board dealing with an appeal from a Command Medical Officer was to "classify or reclassify the officer or enlisted person concerned" rather than determine if an individual was correctly classified at some time in the past. Determining that the Board must adopt the same approach to classification as that required of a medical officer at first instance, Justice Noonan said that it must assess the officer or enlisted person concerned as he presents to the Board at the time he so presents. This was not the approach adopted by the Medical Board in this case. Determining that the Board was only concerned with the correctness of the grade awarded by Commander Murphy, based on the evidence available to him on 24th January, 2012, it was reasoned that the Board had fell into error in adopting this approach. Quite apart from the issue of not examining the applicant, it was obliged to consider all the evidence before it on the 23rd August, 2012 in order to classify the applicant and not merely to conduct a paper exercise of determining whether the evidence before the lower tribunal sustained its conclusions. Having regard to this finding, the Court was satisfied that the Medical Board in upholding that decision for the same reasons acted in excess of its jurisdiction and acted ultra vires. Accordingly, Justice Noonan granted an order of certiorari quashing the decision of the Medical Board of the 23rd August, 2012 and if necessary of the 14th January, 2013.
1. The applicant is a member of the Permanent Defence Forces ("PDF"). He enlisted in the Naval Service in December, 1999 with the rank of signalman, equivalent to private in the army, and is currently based at Collins Barracks in Cork. His period of service came to an end after twelve years in December, 2011 when he became eligible to apply for an extension of his service for a further nine years to bring his total service to 21 years.
2. In order to be considered for an extension of service, the applicant had to undergo a medical review by a medical officer in the Medical Corps. Such officers are registered medical practitioners. A medical grading system is employed by the PDF and is embodied in Defence Force Regulations A12, a statutory instrument created pursuant to the provisions of the Defence Act 1954 and its predecessor. One of the categories to be graded for classification purposes is "constitution". If an applicant for re-engagement achieves a constitution grade of less than 1, he is deemed ineligible.
3. The applicant duly applied for a re-engagement and underwent a medical examination for that purpose on the 24th January, 2012, which was carried out by Commander Murphy. The result of this examination was that the applicant received a constitution grade 2, effectively bringing his career in the Naval Service to an end. He appealed this decision to a Medical Board which convened on the 23rd August, 2012 and upheld Commander Murphy's decision. In these judicial review proceedings, the applicant seeks, inter alia, an order of certiorari quashing the Board's decision.
4. Following his examination of the applicant on the 24th January, 2012, Commander Murphy submitted his report on the same day to the company commanding officer: -
"1. I reviewed Sgmn Bennett today for his re-engagement of service medical.
On reviewing his medical records he demonstrates a recurring requirement for sick leave, for subjective often unrelated conditions.
Over the past 5 years, he has the following sick leave/ED record, which is greater than average, and his SL/ED requirements have increased since the last extension of service.
| 2012 | 3 days |
| 2011 | 24 days |
| 2010 | 58 days |
| 2009 | 36 days |
| 2008 | 14 days |
| 2007 | 22 days |
Whilst on clinical examination I cannot detect any current abnormality at this time. However given the above history of sick leave requirements I am unable to certify Signalman Bennett as healthy (i.e. Grade 1) as he obviously has a higher requirement for medical attention. Consequently I have reclassified him to medical category 2 and graded him as 80-21-311.
I have informed him that this grading is below the standard required for re-engagement and that he may appeal my decision to a medical board under the auspices of DFR A12 Para. 66 (2), by making written application to this office through his chain of command.
For your information."
5. The applicant appealed to the Medical Board and although it does not appear to have issued a written report, its findings were communicated by Commander Murphy on the 23rd August, 2012 to the company commanding officer as follows:
"Outcome of Medical Board
858282 Sgmn Alan Bennett 1Fd CIS
858282 signalman Alan Bennett 1 Fd CIS, appealed his medical grade to a medical board under the auspices of DFR A12 para 66 (2).
He was examined by a medical board consisting of Lt Col Concannon and Comdt Zmudka on 23rd August 2012 and was classified to medical category 80 - 21 - 311.
In compliance with DFR A12 66 (2) the decision of this board is final.
For your attention please."
6. The applicant alleges that at the conclusion of the proceedings before the Medical Board, he was told by the presiding member that whilst it was upholding the brigade medical officer's classification, the Board would review its decision in five months, i.e. in January, 2013. The applicant claims that this was to allow a period of 12 months to elapse from the date of his examination by Commander Murphy so that the board could review his record of medical absenteeism for the preceding full year and if that was satisfactory, he may be upgraded. The applicant's allegations in this regard are disputed by Lieutenant-Colonel Concannon, the president of the board. The applicant avers that after the Medical Board proceedings were concluded, his company sergeant, Sgt Hennessy enquired as to the outcome and having been informed of same by the applicant, Sgt Hennessy wrote in hand on the document giving the applicant notice of the convening of the board the following:
"23/08/2012 to be seen by a reclass bd in 5/12 [signature]"
7. The applicant says that the Medical Board did not in fact reconvene but rather he was summoned by his commanding officer on the 14th January, 2013 and advised that the commanding officer had received an e-mail from the Medical Board confirming the classification previously awarded.
8. The within proceedings were commenced on the 8th April, 2013, when leave to apply for judicial review was granted by order of Peart J.
9. Defence Force Regulations A12 ("the Regulations") were originally enacted on the 7th May, 1943 but have been revised and updated on numerous occasions up to at least 1997.
10. Insofar as relevant to these proceedings, the Regulations provide:
"PART VI. - MEDICAL EXAMINATION AND GRADING.
Section I. - General.
Application of these Regulations.
The provisions of this Part of these Regulations shall apply to all officers, cadets, non-commissioned officers and privates except as provided in paragraph 77.
Prescribed categories to be used.
The medical grades and categories prescribed in Section II of this Part of these Regulations shall be used in determining and describing the degree of mental and bodily fitness required for service in the defence forces…
Classification or reclassification.
(1) Classification or reclassification shall be carried out in accordance with instructions which shall be issued by the Director, Medical Corps. The classification of an officer or enlisted person shall be entered on his or her medical book ( LA 30 or AF 30 as appropriate).
(2) Routine classification or reclassification to any Grade, other than Grade X, of members of the Defence Forces shall be carried out by a Medical Officer of the Medical Corps. The decision of the Medical Officer may be appealed to the appropriate Command Medical Officer who shall convene a Medical Board to classify or...
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Whelan v Minister for Defence
...Board. The applicant submits that this is impermissible and relies upon the decision of Noonan J. in Bennett v. Minister for Defence [2015] IEHC 23. In that case Noonan J. considered para. 66(2) of DFR A12, which concerns the duty of a Medical Board when dealing with an appeal from a medica......