Bord Altranais v O'C (A)

Court:Supreme Court
Judge:Denham C.J.
Judgment Date:21 Dec 2011
Jurisdiction:Ireland
Neutral Citation:[2011] IESC 51

[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

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)

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

Facts: The respondent / appellant sought to appeal an order of the High Court 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. She argued that s. 44 of the Nurses Act 1985 implied some form of meaningful participation by the party against whom such an order was sought by the respondent when considering whether to bring an application. It was alleged inter alia that the trial judge erred in not acceding to her request that the hearing be treated as an interlocutory application rather than a trial of the action, that there had been a breach of audi alteram partem and that the s. 44 notification procedure was not sufficient.

Held by the Supreme Court per Denham J. (Murray J, Hardiman, Fennelly, Macken JJ.) on the issue of the jurisdiction of the High Court, the Court would affirm the High Court order. It was clear from the papers before the High Court that the respondent was seeking a full order pending the determination of the Inquiry of the Fitness to Practise Committee. The Court would dismiss the appeal on this ground. The Court would also dismiss the claim that there was a breach of audi alteram partem, along with the ground on notification. No case had been made out that there was any error made before the High Court.

Reporter: E.F.

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 issue arises as to the propriety of the application being brought in a summary manner.

8

The President of the High Court recited that Dr. Forde, Senior Counsel, for the appellant, raised a jurisdictional issue. He argued that s. 44 of the Act of 1985 implies some type of meaningful participation by the party against whom such an order is sought by the respondent when it is considering whether to bring such an application. The President stated that the second leg of counsel's submission concerned the threshold to be reached, counsel had submitted that there is a higher duty than in other Acts, where the requirement is that a person must be of the opinion that an application should be made.

9

The President dealt with the second point first. He stated:-

"The second point is a very easy matter to deal with on the facts deposed to on which no issue was really joined. There was a long labour associated with the stillbirth of a child which gave rise to an inquiry and the details need not be set out. The child was born on 22 April 2007 to Ms. Jordan. The affidavit of An Bord Altranais sets out this in detail and in particular, in the affidavit of the deponent Ann Carrigy, who sets out that the facts are such that give rise to a concern on the Board's part that an application under section 44 was necessary. I am satisfied that the threshold is met. The Board formed the view and it was satisfied that it was in the public interest to apply under section 44."

10

The President then referred to the earlier history of the case, including undertakings not to practice given by the appellant in 2008 and 2009 and how four days into the fitness to practise inquiry a decision was made by the appellant to withdraw from the inquiry because of some perceived bias.

11

An application for judicial review on the issue of perceived bias was brought before the High Court. It was rejected by Hedigan J. The President of the High Court then recited that the matter was on appeal to this Court. This Court has given its judgment in that matter and rejected the appeal by the appellant.

12

The President of the High Court referred to the issue of delay, and stated it should...

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