O'Ceallaigh v Born Altranais & Fitness to Practise Committee of an Bord Altranais

• Jurisdiction: Ireland
• Judge: Mr. Justice Fennelly
• Judgment Date: 21 December 2011
• Neutral Citation: [2011] IESC 50
• Judgment citation (vLex): [2011] 12 JIC 2103
• Court: Supreme Court
• Date: 21 December 2011

[2011] IESC 50

THE SUPREME COURT

Denham C.J.

Murray J.

Hardiman J.

Fennelly J.

Macken J.

RECORD NO. 450/2009

O'Ceallaigh v Bord Altranais & Ors

BETWEEN:

ANN O'CEALLAIGH

Applicant/Appellant

-and-

AN BORD ALTRANAIS AND THE FITNESS TO PRACTISE COMMITTEE OF AN BORD ALTRANAIS

Respondents

-and-

THE CHIEF EXECUTIVE OFFICER OF AN BORD ALTRANAIS

Notice Party/Respondent

NURSES ACT 1985 S6

NURSES ACT 1985 S13(2)

NURSES ACT 1985 PART V

NURSES ACT 1985 S38

NURSES ACT 1985 S38(4)

NURSES ACT 1985 S13(8)

BULA LTD & ORS v TARA MINES LTD & ORS (NO 6) 2000 4 IR 412 2000/3/925

KUDELSKA v BORD ALTRANAIS UNREP HEDIGAN 10.2.2009 2009/32/7844 2009 IEHC 68

SMITS & ANOR v ROACH & ORS 228 ALR 262 80 ALJR 1309 2006 HCA 36

R v GOUGH 1993 AC 646 1993 2 WLR 883 1993 2 AER 724

WEBB & HAY v R 1993-4 181 CLR 41 122 ALR 41 68 ALJR 582 1994 HCA 30

ORANGE COMMUNICATIONS LTD v DIRECTOR OF TELECOMMUNICATIONS REGULATION & METEOR MOBILE COMMUNICATIONS LTD (NO 2) 2000 4 IR 159 2000/15/5538

DUBLIN WELLWOMAN CENTRE LTD & ORS v IRELAND & ORS 1995 1 ILRM 408 1994/9/2704

RADIO LIMERICK ONE LTD v INDEPENDENT RADIO & TELEVISION CMSN 1997 2 IR 291 1997 2 ILRM 1 1997/6/2117

AUSSIE AIRLINES PTY LTD v AUSTRALIAN AIRLINES PTY LTD & ANOR 135 ALR 753 1996 FCA 1308

EBNER v OFFICIAL TRUSTEE IN BANKRUPTCY 205 CLR 337 176 ALR 644 75 ALJR 277 2001 2 LRC 369 2000 HCA 63

LOCABAIL (UK) LTD v BAYFIELD PROPERTIES LTD & ANOR 2000 QB 451 2000 2 WLR 870 2000 1 AER 65

KENNY v TRINITY COLLEGE DUBLIN & DUBLIN CITY COUNCIL 2008 2 IR 40 2007/32/6662 2007 IESC 42

KELLY v TRINITY COLLEGE DUBLIN UNREP SUPREME 14.12.2007 2007/32/6594 2007 IESC 61

GILLIES v SECRETARY OF STATE FOR WORK & PENSIONS 2006 1 WLR 781 2006 1 AER 731 2006 SC (HL) 71 2006 SLT 77

DOVADE PTY LTD & ORS v WESTPAC BANKING CORP 1999 NSWCA 113

PROFESSIONS

Medical profession

Nursing - Fitness to practise - Judicial review - Objective bias - Composition of fitness to practice committee - Expert witness - Test to be applied - Whether reasonable, well informed person would reasonably have apprehended that nurse would not receive fair and impartial hearing - Whether personal, social or professional relationship between decision maker and witness sufficient to prove objective bias - Whether community of interest directly related to subject matter of proceedings - Whether cogent reason to believe that decision maker would prefer evidence of witness with whom the decision maker worked - Whether failure to disclose connection was evidence of objective bias - Whether objection could be based on decision maker's social, education, service or employment background or history - Whether court could define list of factors which give rise to real danger of bias - Whether duty on decision maker to disclose associations which could give rise to apprehension of bias - Whether cautious or good practice should be elevated to legal principle - Whether failure to disclose associations which could give rise to apprehension of bias could be ground to set aside decision - Bula v Tara Mines (No 6) [2000] 4 IR 412 and Orange Communications Ltd v Director of Telecoms (No 2) [2000] 4 IR 159 followed - Smits v Roach [2006] HCA 36, (2006) 228 ALR 262, Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd (1996) 135 ALR 753, In re Ebner [2000] HCA 63, [2000] 176 ALR 644, Locobail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 and Gillies v Secretary of State for Work and Pensions [2006] UKHL 2, [2006] 1 WLR 781 considered - Nurses Act 1985 (No 18), s 38 - Appeal dismissed (450/09 - SC - 21/12/2011) [2011] IESC 50

Ó Ceallaigh v An Bord Altranais

Facts: The appellant was a registered nurse and midwife. She was the subject of an allegation of professional misconduct before the Fitness to practice Committee of An Bord Altranais. She alleged objective bias against the chairperson of the Committee based on the fact that the Chairperson and principal expert witness called as a witness for the Board were both employed, with the chairperson as the superior of the witness.

Held by the Supreme Court per Fennelly J. (Denham CJ, Murray J, Hardiman, Macken JJ.) that the Court could not discern any ground upon which a hypothetical objective, well-informed and reasonable observer could reasonably apprehend that the impugned parties would not be able to bring a proper independent and impartial mind and judgement to the task. While the relational position was not accounted for at the commencement of the hearing, the fact was frankly accepted once the matter was raised. The appellant's arguments based on non-disclosures failed both on the law and on the facts.

Reporter: E.F.

1 1. The appellant is a registered nurse and midwife; she is the subject of an allegation of professional misconduct before the Fitness to Practice Committee (hereinafter "the Committee") of An Bord Altranais, the second-named respondent (hereinafter "the Board"). She alleges objective bias against the chairperson of the Committee. This allegation is based on the fact that the chairperson and the principal expert witness called as a witness for the Board at the inquiry are both employed in the Rotunda Hospital, where the chairperson is the General Manager and thus the superior of the witness.

2 2. The appellant's application for judicial review on this ground was unsuccessful before the High Court (Hedigan J). She now appeals to this Court.

3 3. The appellant describes herself as a domiciliary midwife. She qualified as a nurse in London in 1971 and as a domiciliary midwife in 1972. She has been registered with An Bord Altranais since 1983.

4 4. The first named respondent is a statutory body. It was established by section 6 of the Nurses Act 1985 ('the 1985 Act'). As that section provides, the general concern of the Board is "to promote high standards of professional education and training and professional conduct among nurses." It has the sole responsibility, therefore, for the maintenance of professional standards in nursing and midwifery.

5 5. The function of the Board in respect of these matters is performed, in the first instance by the Fitness to Practice Committee, established by virtue of section 13(2) of the Act. Part V of the 1985 Act deals with the "Fitness to Practice" of registered nurses. Section 38 of the 1985 Act permits the Board or any person to apply to the Committee for an inquiry into the fitness of a nurse to practise nursing on the grounds of alleged professional misconduct, or alleged unfitness to engage in such practice by reason of physical or mental disability. The Committee, if satisfied that the application, in effect the complaint, discloses that there is a prima facie case, holds an inquiry and reports the result of the inquiry to the Board. It is the function of the Chief Executive Officer of the Board to present the evidence to the Committee. On the conclusion of its inquiry the Committee reports to the Board.

6 6. The inquiry commenced by the Committee which is the subject of the present proceedings arose out of the care provided by the appellant at the home birth of an infant to a woman in her first pregnancy and, in particular, related to her care in the course of labour from 18 ^th April to 20 ^th April 2007. Although the baby, subsequently died, after the mother had been transferred to the Coombe Hospital, the Board made it clear at the outset of the hearing before the Committee and repeated at the hearing of the appeal in this Court that it does not allege that the appellant was responsible for the death of the infant.

7 7. The Coombe Hospital communicated to the Board that it had concerns regarding the management of the labour of the mother. The Board decided to apply to the Committee to hold an inquiry. The Committee considered the application and determined that a prima facie case was made out. It decided to hold an inquiry.

8 8. Section 38(4) of the Act provides:

"When it is proposed to hold an inquiry under subsection (3) of this section the person who is the subject of the inquiry shall be given notice in writing by the Chief Executive Officer sent by pre-paid post to the address of that person as stated in the register of the nature of the evidence proposed to be considered at the inquiry and that person and any person representing him shall be given the opportunity of being present at the hearing."

9 9. Thus, it fell to the Chief Executive Officer of the Board to formulate the Notice of Inquiry and to give that notice to the appellant. That notice was given to the appellant on 9 ^th September 2008. The Chief Executive Officer necessarily had to engage an expert to consider the appellant's management of the patient and to give evidence before the Committee. The functions of the Chief Executive Officer were in fact performed by Ms Ursula Byrne, who at the time was Acting Deputy Chief Executive Officer.

10 10. Ms Byrne has explained on affidavit that it was important to engage an expert who had experience of midwifery management of a home birth. She says that the number of midwives in a position to give such expert evidence is very limited in Ireland and that it is not the practice to seek to call experts from outside Ireland, who would not necessarily be familiar with Irish midwifery legislation, guidelines and practice. Ms Byrne chose, as an appropriate expert witness, Ms Fiona Hanrahan, who had previously given evidence to enquiries in relation to the management of home births. Ms Hanrahan was, at the time, working at the Rotunda Hospital as a midwife and as Coordinator for Community Services.

11 11. It also fell to Ms Byrne to decide on the composition of the Committee which was to hold the inquiry. Section 13(2) of the 1985 Act provides that there shall be a Committee of the Board to...