Bord Altranais v O'C (A)

 
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[2011] IESC 51

THE SUPREME COURT

Denham C.J.

Murray J.

Hardiman J.

Fennelly J.

Macken J.

[Appeal No: 202/2010]
Bord Altranais v O'C (A)
In the matter of Section 44 of the Nurses Act, 1985
Between/
An Bord Altranais
Applicant/Respondent

and

A. O'C
Respondent/Appellant

202/2010 - Denham Murray Hardiman Fennelly Macken - Supreme - 21/12/2011 - 2011 6 1277 2011 IESC 51

NURSES ACT 1985 S44

LAWLOR v GERAGHTY UNREP KEARNS 20.5.2010 2010/28/6994 2010 IEHC 168

NURSES ACT 1985 S44(3)

NURSES ACT 1985 S44(1)

NURSES ACT 1985 S44(2)

O CEALLAIGH v BORD ALTRANAIS 2000 4 IR 54 2000/2/648

PROFESSIONS

Medical profession

Nursing - Fitness to practise - Professional misconduct - Suspension from register pending hearing of allegations of professional misconduct - Jurisdiction - Audi alterem partem - Prior participation - Whether statute implied meaningful participation by party against who order sought during consideration process - Whether statute required higher threshold - Whether threshold met - Whether public interest in suspending nurse pending hearing - Whether right to participate - Whether obligation to give prior notification of intention to seek suspension - Whether statutory section enacted to prevent immediate danger to public - Whether fitness to practise hearing should have granted adjournment - Whether sufficient reason given for non attendance at hearing - Whether withdrawal undertaking of nurse not to practice relevant - Whether order for suspension proportionate - Whether disproportionate to suspend nurse from general nursing and not simply domiciliary midwifery - Liberty to apply - Whether appropriate to refuse liberty to apply in respect of suspension order - Ó Ceallaigh v An Bord Altranais [2000] 4 IR 54 followed - Nurses Act 1985 (No 18), s 44 - Appeal dismissed (202/10 - SC - 12/12/2011) [2011] IESC 51

An Bord Altranais v Ó C(A)

1

This is an appeal by A. O'C, the respondent/appellant, referred to as "the appellant", from the order of the High Court (Kearns P.) made on the 9 th June, 2010 directing that she be suspended from the Register pending the determination of the inquiry of the Fitness to practice committee into the grounds of professional misconduct alleged against the appellant under s. 44 of the Nurses Act, 1985

2

An Bord Altranais, the applicant/respondent, referred to as "the respondent", brought a special summons, directed to the appellant, to require the appellant to attend before the President of the High Court. The special endorsement of claim of the special summons recited a number of matters, including the following: the appellant is a person whose name is entered on the register maintained by the respondent, pursuant to the Nurses Act, 1985, referred to as "the Act of 1985". At a meeting of the respondent on the 2 nd March, 2010, the respondent decided, having satisfied itself that it was in the public interest so to do, to apply to the High Court pursuant to s. 44 of the Act of 1985 for an order that, for such time as the High Court may direct, that the registration of the appellant's name on the register shall not have effect.

3

On the 9 th June, 2010, the said special summons came on for hearing before the High Court. The High Court had before it a number of affidavits.

The High Court Order
4

The High Court ordered that the registration of the name of the appellant in the General Nurse Division and in the Midwives Division of the Register maintained by the respondent:

"shall not have effect pending the Inquiry of the Fitness to Practise Committee of the [respondent] into the fitness to practise of the [appellant] on the grounds of alleged professional misconduct."

5

The High Court ordered that the appellant:-

"be restrained from engaging in the practice of nursing and the practice of midwifery pending the determination of the Fitness to Practise Committee of the [respondent] into the fitness to practise of the [appellant] on the grounds of alleged professional misconduct."

6

The order of the High Court made provision that notice of the orders be given to the Minister for Health and Children, the Chief Executive officer of the Health Service Executive, any employer or prospective employer or registration body enquiring as to the registration status of the appellant, and any prospective client of the appellant enquiring as to the registration status of the appellant. Further, the respondent was given liberty to publish a statement on the on-line register that until further notice the registration of the appellant's name in the General Nurse Division and in the Midwives Division of the Register shall not have effect and is suspended under s. 44 of the Act of 1985.

The High Court Judgment
7

In counsel's note of the judgment of the President of the High Court of the 9 th June, 2010, it is clear that the President commenced his judgment by reciting that this was an application under s. 44 of the Act of 1985, and reciting the terms of the section. The President then stated that although the written submissions filed by the appellant addressed the format of the proceedings, as the matter unfolded that was not part of or the basis of the legal argument. No...

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