O Ceallaigh v Fitness to Practice Committee

• Jurisdiction: Ireland
• Judge: Hon. Mrs. Justice Denham,Mr Justice Francis D Murphy,BARRON J.,Hardiman J.,Mr. Justice Geoghegan
• Judgment Date: 17 May 2000
• Neutral Citation: [2000] IESC 21
• Date: 17 May 2000
• Court: Supreme Court
• Docket Number: [S.C. Nos. 162 of 1998

BORD ALTRANAIS v. O CEALLAIGH

BETWEEN

AN BORD ALTRANAIS

APPLICANT/APPELLANT

AND

ANN O'CEALLAIGH

RESPONDENT

[2000] IESC 21

Denham, J.

Murphy, J.

Barron, J.

Hardiman, J.

Geoghegan, J.

No. 127, 131 &225 of 1999

THE SUPREME COURT

Synopsis

- [2000] 4 IR 54

Citations:

NURSES ACT 1985 S44(1)

NURSES ACT 1985 S44

NURSES ACT 1985 PART V

NURSES ACT 1985 PART III

BORD ALTRANAIS V O CEALLAIGH UNREP MORRIS 13.5.1999

NURSES ACT 1985 S6

NURSES ACT 1985 S27(1)

NURSES ACT 1985 S38

O CEALLAIGH V BORD ALTRANAIS UNREP MORIARTY EX-TEMP 3.10.1997

RSC O.124

O CEALLAIGH V BORD ALTRANAIS UNREP KELLY EX-TEMP 17.12.1997 1999/1/89

O CEALLAIGH V BORD ALTRANAIS UNREP MORRIS EX-TEMP 18.5.1999

NURSES ACT 1985 S44(2)

NURSES ACT 1985 S44(3)

NURSES ACT 1985 S38(1)

NURSES ACT 1985 S38(3)(c)

NURSES ACT 1985 S39

NURSES ACT 1985 S40

NURSES ACT 1985 S41

REES V CRANE 1994 2 AC 173

LEWIS V HEFFER 1978 1 WLR 1061

WISEMAN V BORNEMAN 1973 AC 297

R V BIRMINGHAM CITY COUNCIL EX-PARTE FERRERO LTD 1993 1 AER 530

NORWEST HOLST LTD V SECRETARY OF STATE FOR TRADE 1978 CH 201

PARRY JONES V LAW SOCIETY 1969 1 CH 1

R V PANEL ON TAKEOVERS & MERGERS EX-PARTE FAYED 1992 BCLC 938

FURNELL V WHANGAREI HIGH SCHOOLS BOARD 1973 AC 660

GARDA SIOCHANA (COMPLAINTS) ACT 1986

NURSES ACT 1985 S9

1 Judgment of The Hon. Mrs. Justice Denhamdelivered the 17th day of May, 2000

2 This is an appeal by An Bord Altranais the applicant/appellant(hereinafter referred to as the applicant) from a judgment of the HighCourt, Morris P., delivered ex tempore on the 18th May, 1999.It was submitted on behalf of the applicant that the President erred inhis interpretation of section 44(1) of the Nurses Act, 1985. At issue is a point of law.

3 There has been extensive litigation between the parties. In specialsummons proceedings the applicant applied for an order pursuant tosection 44 of the Nurses Act, 1985(hereinafter referred to as the Act of 1985) which effectively sought asuspension of Ann O'Ceallaigh, the respondent (hereinafter referred toas the respondent) from practising as a midwife. An order was originallygranted ex parte by Costello P. on 1st August, 1997. Theapplicant claimed:

4 2 "1. An Order pursuant to Section 44 of the Nurses Act, 1985("the Act") directing that pending the outcome of an Inquiryor Inquiries under Part V of the Act in to the Fitness of the Respondentto practise nursing and the outcome of any consequent application tothis Honourable Court arising out of the said Inquiry or Inquiries theregistration of the Respondent's name in the Register of Nursesmaintained by the Applicant under Part III of the Act or in the Midwivesdivision of the said Register shall not have effect.

5 2. An injunction restraining the Respondent from engaging in thepractice of nursing (including midwifery) until after the outcome of theInquiry or Inquiries and applications referred to at paragraph 1 abovepending further Order."

6 The order of Costello P. on 1st August, 1997 stated:

"It is ordered pursuant to section 44 of the Nurses Act, 1985that the registration of the name of the respondent in the register ofnurses maintained by the Applicant under Part III of the said Act or inthe Midwives division of the said register shall not have effect untilafter Wednesday the 13th day of August, 1997 or until further order inthe meantime."

7 And it is ordered that the respondent be restrained until afterWednesday the 13th day of August, 1997 or until further order in themeantime from engaging in the practice of nursing (includingmidwifery).

8 And it is ordered that the Special Summons herein be made returnablebefore this Court (the President) on Wednesday the 13th day of August,1997."

9 Liberty was given to inform various persons, and it was thenstated:

"And it is ordered that the Respondent be at liberty to apply toset aside or vary this Order on 24 hours notice in writing to theApplicant."

10 There have been many court hearings on this and related proceedings.Morris P., (unreported, High Court, 18th May, 1999) described thesituation thus:

"In a previous judgment I recounted subsequent events in somedetail but I can summarise the position in this way; I formed the viewthat, when he made the order, Costello J. envisaged that the matter wasonly being dealt with on an interim or interlocutory basis and thatthere would be a full hearing at a later stage. I believe that that fullhearing may well have taken place either before Moriarty J., or KellyJ., or indeed, before me on a previous occasion.

However, in my previous judgment I decided that, to avoid any possibledoubt and to avoid injustice to the parties, the matter should berelisted before me today for a full hearing. Today the issue fordecision by the Court is whether or not the interim order orinterlocutory injunction should be made permanent up to whatever datewould be appropriate."

11 The learned President then held:

"In order to consider today's application one must go back anew tosection 44 of the Nurses Act, 1985. The court must be satisfied at the present time, not only when theoriginal application was made before Costello J., for the interiminjunction, that the Board is satisfied that it is the public interestto make the application to the High Court. The court must then go on toconsider whether or not it is the public interest to make the ordersought.

In my view it is incumbent upon the Board to reconsider the evidenceavailable to it at the present time and not, so to speak, rest on itsoars as of the date when the three letters came in. It is only bereviewing the position that it can possibly form the view that it is inthe public interest to apply to the Court,and it is only on that basis that the Court can proceed to considermaking the order sought.

I accept the evidence of Mr. Donohue and am satisfied that the Board hasnot reconsidered the up-to-date position. I am also satisfied that theBoard that made the original decision has in fact gone out and that anew Board has come in since September, 1997. So it is correct to saythat, as a Board, this matter has never come before the Board for itsconsideration....

In my view it would be quite wrong for the court to act upon informationwhich is manifestly out of date and to continue to deal with this caseon the basis of the three original letters, closing its eyes to a numberof relevant factors, one such factor being that a variety of ladies havecome to Court seeking that the Respondent be allowed to treat themduring their pregnancies. Another factor is that a Professor Page, aMiss Cronk and a Dr. Porter, who are, I am told, eminent medicalpractitioners, support the plaintiff.... I do not accept Mr.Butler's able submission that the additional material which has come tohand in the meantime does nothing to undermine the original view of theBoard and that it therefore remains intact.... That being so, I amnow satisfied that the necessary foundation for the making of an orderunder section 44 no longer exists and I accordingly refuse thatapplication to extend the provisions of the injunction up to a date inthe future that may yet remain to be determined. Having said that, Ishould not overlook the following: in my view it remains open to theBoard to reconsider the case as a whole. If satisfied that it is in thepublic interest to do so, the Board may re-apply to the High Court foran order under section 44, if it is so advised.

I want to make it clear that I am rejecting this application because Ido not believe that an order should be made depriving the Respondent ofthe right to practice her profession without a full inquiry being madeby the Board. I believe I am correct in saying that this is thesixteenth or seventeenth occasion on which the Respondent has comebefore the courts, perhaps on more occasions when one takes into accountthe number of times she has gone to the Supreme Court. I believe thatthe Board has conscientiously attempted to do what is right and that thereason why it may not have reconsidered the position in the last week orso is that it simply did not have time to do so. It may well be thateven as late as last night further affidavits were coming in. In thosecircumstances I believe it is appropriate that there should be sympathyfor the Board in its failure to inform itself of the full facts of thecase in order to be able to inform the court that it is satisfied thatit is in the public interest to apply for the injunction tocontinue.

While I do not make the order sought today, I want to make it clear thatI do not close the door to an application to be made to me or to someother judge for an order under section 44. I therefore refuse the reliefsought in this application."

Appeal

12 Against that judgment and order the applicant has appealed on thefollowing grounds:

13 2 "1. The learned President erred in fact and in law in findingthat, before an order under section 44 of the act could be made, theapplicant required to be satisfied as of the trial date and the date ofthe said judgment and order, that the said application was in the publicinterest.

14 2. The learned President erred in fact and in law in finding that itwas incumbent upon the applicant to reconsider the evidence available toit either continually or at the date of the trial.

15 3. The learned President erred in fact and in law in finding thatwithout the additional consideration by the appellant of the mattersreferred to in paragraphs 1 and 2 above, there was no appropriatefoundation upon which to apply to the High Court.

16 3 The learned President erred in fact and in law in finding that theinformation contained in the letters of complaint which formed the basisof the applicant's decision to apply for an order on the 31st July, 1997was out of date.

17 5. The learned President erred in fact and in law in finding that thenecessary foundation for the making of an order under section 44 of theNurses Act, 1985no longer existed.

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