Brennan v an Bord Altranais

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 20 May 2010
• Neutral Citation: [2010] IEHC 193
• Court: High Court
• Date: 20 May 2010

[2010] IEHC 193

THE HIGH COURT

[No. 209 SP/2009]

Brennan v Bord Altranais

IN THE MATTER OF SECTION 40 OF THE NURSES ACT 1985

AND IN THE MATTER OF IRENE BRENNAN, A REGISTERED MIDWIFE

BETWEEN

IRENE BRENNAN

APPLICANT

AND

AN BORD ALTRANAIS

RESPONDENT

NURSES ACT 1985 S38

NURSES ACT 1985 S41(1)

NURSES ACT 1985 S41(2)

NURSES ACT 1985 S40(1)

NURSES ACT 1985 S51(2)

PEREZ v BORD ALTRANAIS 2005 4 IR 298 2005/50/10512 2005 IEHC 400

NURSES ACT 1985 S40(3)

MAGILL v MEDICAL COUNCIL (M, A DOCTOR, IN RE) 1984 IR 479 1984/5/1499

K (C) v BORD ALTRANAIS 1990 2 IR 396

O'CONNOR v MEDICAL COUNCIL UNREP FINNEGAN 17.7.2007 2007/48/10174 2007 IEHC 304

O'LAOIRE v MEDICAL COUNCIL UNREP KEANE 27.1.1995 2000/21/7913

DOUGHTY v GENERAL DENTAL COUNCIL 1988 AC 164 1987 3 WLR 769 1987 3 AER 843

PRENDIVILLE & MURPHY v MEDICAL COUNCIL & ORS 2008 3 IR 122 2007/51/10911 2007 IEHC 427

NURSES ACT 1985 S39(9)

MEDICAL PRACTITIONERS ACT 1978 S46(9)

UNFAIR DISMISSALS ACT 1977 S6(4)

P (F) & ORS v MIN FOR JUSTICE 2002 1 IR 164 2002 1 ILRM 38 2001/20/5496

NURSES ACT 1985 S38(4)

NURSES ACT 1985 S38(3)(B)

NURSES ACT 1985 S13(7)

NURSES ACT 1985 S39(1)

NURSES ACT 1985 S40

PROFESSIONS

Disciplinary proceedings

Professional misconduct - Nursing Board - Fitness to Practise Committee - Absence of definition of professional misconduct - Standard to be applied - Expected standards test - Breach of fair procedures - Natural and constitutional justice - Obligation to give reasons - Adequacy of reasons - De novo hearing - Right to make submissions - Whether professional misconduct embodies expected standards test - Whether applicant's conduct fell below standard expected of a midwife - Whether reasons provided adequate - Whether necessary to hear oral evidence - Prendiville v Medical Council [2008] 3 IR 122; O'Laoire v Medical Council (Unrep, Keane J, 27/1/1995) and P(F) v Minister for Justice, Equality and Law Reform [2002] 1 IR 164 followed - Perez v An Bord Altranais [2005] 4 IR 298; In re M, a Doctor [1984] IR 479; K(C) v An Bord Altranais [1990] 2 IR 396; O'Connor v Medical Council [2007] IEHC 304 (Unrep, Finnegan J 17/7/2007); Doughty v General Dental Council [1987] 3 All ER 843; considered - Nurses Act 1985 (No 18), ss 13, 38, 39, 40, 41 and 51 - Medical Practitioners Act 1978 (No 4), s 46(9) - Unfair Dismissals Act 1977 (No 10), s 64 - Application denied (2009/209SP - Dunne J - 20/5/2010) [2010] IEHC 193

Brennan v An Bord Altranais

Facts section 40(3) of the Nurses Act 1985 provides, inter alia, as follows: ""A person to whom a decision under this section relates may, within the period of 21 days beginning on the date of the decision, apply to the High Court for cancellation of the decision and if he so applies - (a) the High Court, on the hearing of the application, may - (i) cancel the decision, or (ii) declare that it was proper for the Board to make a decision under this section in relation to such person…" The issue raised in the proceedings was the question of the test or standard to be applied in assessing whether or not the applicant had been guilty of professional misconduct and, assuming the appropriate test to be that of a "serious falling short of the standard of care expected of a midwife". The applicant further complained that one could not be found to be in breach of the "expected standards" test if one was never notified or made aware of the test.

Held by Ms. Justice Dunne in declaring, pursuant to section 40(3) of the Act of 1985, that the impugned decision had been properly made by the respondent that professional misconduct could include conduct falling below a level such that no member of a profession of reasonable skill exercising reasonable care would have acted in the same way. The appropriate test to be applied in the context was the expected standards test and that, unless expressly excluded by a profession's Code or Guide, the expected standards test was encompassed in the meaning of professional misconduct.

That, in the first instance, it was necessary to provide reasons so that the party affected could consider those reasons and go on to make appropriate submissions to the Board or Council as the case may be in relation to the reasons for the findings. The Board itself must have the reasons for the findings in order to consider whether it should confirm the findings of the Fitness to Practice Committee. Thirdly it was necessary to have the reasons for a decision in order to enable an applicant to consider whether judicial review proceedings may be appropriate.

C.K. v. An Bord Altranais [1990] 2 I.R. 396 and Prendiville v. Medical Council [2008] 3 I.R. 122 considered.

Report: P.C.

1 JUDGMENT of Ms. Justice Dunne delivered the 20th day of May 2010

2 The applicant in these proceedings is a midwife registered under No. 90018 of the register of nurses and midwifes maintained by the respondent. She trained as a nurse and subsequently as the midwife in the United Kingdom, qualifying as a nurse in 1992 and as a midwife in 1995. She attained the equivalent status of a clinical nurse manager in the United Kingdom and in 2001 she took up a position of staff midwife in Wexford General Hospital.

3 These proceedings arise out of the tragic circumstances that accompanied the birth of the third child of Ms. S.W. who presented at Wexford General Hospital on 5 ^th February 2004, for delivery of her baby. A son, L., was born to Ms. W. but, unfortunately, died a week after his birth. An independent inquiry into the circumstances of the labour and delivery of L. was carried out by Dr. John Gallagher and Ms. Pauline Treanor. That inquiry was instigated by the HSE. It concluded that certain aspects of the care afforded to Ms. W. and L. were inadequate and sub-optimal. It was not an inquiry into the conduct of the applicant herein, although counsel on behalf of the applicant noted that there was no criticism of the applicant's care in that inquiry, save for the conclusion that "it would have been prudent to seek advice from medical personnel earlier, especially after 13.00 hours and before 14.50 hours". Subsequently, a Notice of Inquiry was sent to the applicant in March 2008, advising her that it was intended to hold an inquiry in to her fitness to practice pursuant to s. 38 of the Nurses Act, 1985 relating to the applicant's care of Ms. W. during her labour and delivery. Ultimately, the Fitness to Practice Committee (F.P.C.) of the respondent, (the Board) found that some twenty-six out of thirty allegations of misconduct were proved and made recommendations accordingly.

4 The report of the F.P.C. was considered by the respondent. It was sent back to the F.P.C. in order to obtain more details as to the reasons for the findings of professional misconduct by the F.P.C. A further report was furnished by the F.P.C. and the recommendations of the F.P.C. were confirmed by the respondent. The decision of the respondent made on 11 ^th February 2009, confirming the report of the F.P.C., attached a condition and advised the applicant in regard to her professional conduct, and is now the subject of these proceedings in which the applicant seeks to challenge the decision on a number of legal grounds.

5 I want to set out some details as to the background in relation to the procedures in respect of the inquiry. The notice of inquiry was dated 3 ^rd March, 2008 and contained a number of allegations against the applicant herein. The F.P.C. heard evidence over 6 days, the 19 ^th, 20 ^th and 21 ^st May 2008 and 10 ^th, 11 ^th and 16 ^th July 2008. The F.P.C. finalised its report on 7 ^th August, 2008 and in its report it found the applicant guilty of professional misconduct in respect of some twenty-six out of thirty allegations. It recommended that the applicant be admonished with a condition that she attend approved courses and provide documentation in regard to that within twelve months of confirmation of sanction by the High Court and proof of same to the Board. A meeting of the Board took place on 19 ^th November, 2008 to consider the F.P.C. report. Following submissions from the applicant the report was sent back to the F.P.C. to enable the F.P.C. to provide reasons for its recommendations and findings. A further report dated the 8 ^th January 2009 was then submitted by the F.P.C. to the Board. There were some changes in setting out more detail of the reasons for the various findings and the report contained an additional statement in the following terms:-

"The committee in deliberating took cognizance of the expert witnesses and unanimously agreed that midwife Brennan failed in her duty of care to Ms. W. as she failed to direct the care in labour and that she gave undue precedence to Ms. W.'s birth plan. Midwife Brennan in adhering to the birth plan failed to address the care that should have been afforded to a woman with associated risks factors and consulted with the multi-disciplinary team. In doing so, her standard of care fell below the standard expected of a midwife. The committee noted that midwife Brennan through her evidence recognised her deviation from normal practice, however, the committee felt as an autonomous practitioner, a midwife had a duty of care to evaluate, assess and plan care specific to the woman's requirements with the appropriate multi-disciplinary team. Failing to do this midwife Brennan's professional conduct fell short of the required standard expected of a midwife.

The committee recommends that midwife Brennan be admonished in relation to her professional conduct and that she attend approved courses on CTG and documentation with twelve months of confirmation of sanction by the High Court and provide proof of same to the Board."

6 A further meeting of the Board took place on 11 ^th February, 2009. At that meeting submissions were heard from counsel for the...