Dowling v an Bord Altranais

JurisdictionIreland
CourtHigh Court
JudgeMs Justice Ní Raifeartaigh
Docket NumberRECORD NO: 2015/86 SP
Date25 January 2017

[2017] IEHC 62

THE HIGH COURT

Ni Raifeartaigh

RECORD NO: 2015/86 SP

RECORD NO: 2015/87 SP

IN THE MATTER OF SECTION 39 OF THE NURSES ACT, 1985

IN THE MATTER OF SECTION 39 OF THE NURSES ACT, 1985

Between
MARGARET MARIAN (RITA) DOWLING
Plaintiff
AND
AN BORD ALTRANAIS AGUS CNÁIMHSEACHAIS NA hÉIREANN (NURSING AND MIDWIFERY BOARD OF IRELAND)
Defendant
Between
ELLEN TERESA ANNE CARROLL
Plaintiff
AND
AN BORD ALTRANAIS AGUS CNÁIMHSEACHAIS NA hÉIREANN (NURSING AND MIDWIFERY BOARD OF IRELAND)
Defendant

Employment – S. 39 of the Nurses Act, 1985 – Professional misconduct – Imposition of censure – Mitigation factors – Estoppel

Facts: The plaintiffs sought an order for the cancellation of a decision of the respondent/Board that the names of the plaintiffs should be erased from the register of nurses. The plaintiffs had challenged the aforesaid decision on two grounds namely, lack of consideration of mitigating factors while imposing censure and lack of statutory quorum while making the impugned decision. The respondent argued that the plaintiff were estopped from challenging the issue of the Board's quorum as the said issue was not raised at the time of the Board's hearing in question. The plaintiffs, however, did not raise objection concerning the findings of serious professional misconduct.

Ms. Justice Ni Raifeartaigh granted an order for quashing the Board's decision and directed the Board to reconsider the matter by taking account of the issue of mitigation in the light of the present judgment. The Court, however, observed that the adoption of literal meaning of s. 39(3) of the Nurses Act, 1985 would lead to absurdity as the Court would be devoid of powers to quash the decision and thus, reliance had to be placed on s. 5(1) (b) of the Interpretation Act, 2005 to grant appropriate relief. The Court found that there were inconsistencies between the findings of the Board and the Fitness of Practice Committee. The Court held that the Board's report had failed to give the narrative of the facts and the key factual points of conflicts. The Court found that there was no evidence to show as to how the Board had accommodated the mitigating factors.

JUDGMENT of Ms Justice Ní Raifeartaigh delivered on 25th January, 2017
1

This case comes before the Court by way of an application pursuant to section 39(3) of the Nurses Act, 1985. The two plaintiffs, who are nurses, seek cancellation of a decision of An Bord Altranais (hereinafter "the Board") made in March, 2015, that their names be erased from the register of nurses. The decision of the Board under challenge in these proceedings followed upon a Fitness to Practice Committee inquiry into certain allegations of professional misconduct on the part of the two nurses which arose in connection with the death of an elderly patient in a hospital in which they were working at the time. The Committee made certain findings of misconduct, and recommended that the two nurses be censured. However, the Board subsequently decided to impose the more severe sanction of erasure. In these proceedings, the plaintiff nurses do not challenge the findings of the Committee that they were guilty of professional misconduct, and confine their challenge to the sanction of erasure imposed by the Board. They do so on the ground that the Board failed sufficiently to take into account a number of distinct mitigating factors when considering what sanction to impose. The plaintiffs also contend that the decision of the Board imposing the sanction of erasure was invalid and unlawful because the Board lacked the necessary statutory quorum at the time of its decision. The latter point raises an issue with regard to the construction of certain provisions of the Nurses Act, 1985, and the Nurses and Midwives Act, 2011, as well an issue as to whether the Plaintiffs are estopped in the present proceedings from raising the issue of the Board's quorum in circumstances where the issue was not raised on their behalf at the time of the Board hearing in question.

Chronology of Events
2

As one of the complaints in this case is that the Board failed to take into account the lapse of time or delay in the case as a mitigating factor when considering the appropriate sanction, it is necessary to consider the chronology of events in some detail. There is no doubt but that a significant period of time has elapsed since the events which led to the inquiry, being the 22nd June 2006. This was the date of death of Ms. Hannah Comber, the elderly patient in the hospital in which the plaintiff nurses were working and in connection with whom the allegations of professional misconduct against the plaintiffs were investigated by the Fitness to Practice Committee. Accordingly, there was a period of almost 9 years between this event and the decision of the Board to impose the sanction of erasure.

3

On the 22nd June 2006, Ms. Hannah Comber, a long-term and highly dependent patient in the hospital in which the plaintiffs were on duty, died in the early hours of the morning. It subsequently transpired, on foot of the pathologist's examination and the other facts established, that the cause of her death was asphyxiation. It seems, from all the facts established, that this occurred because she slipped down in the chair in which she was sitting which had a restraint belt, which belt caused the asphyxiation. Some hours prior to her death, she had become agitated while in her bed, which was a frequent occurrence. The plaintiff nurses had arranged to take her from her bed and place her in the day room under the supervision of a care assistant, who remained with her at all times. Ms. Comber was placed in a chair which had a restraint belt. It seems likely that the care assistant fell asleep while supervising Ms. Comber and that the accident happened while she was asleep. In or about 5am, the care assistant raised the alarm that something had happened to Ms. Comber. The plaintiff Nurse Dowling arrived and made some efforts to resuscitate Ms. Comber using CPR, but discontinued these efforts shortly afterwards in the belief that Ms. Comber was already dead. The plaintiff nurse Carroll arrived on the scene shortly after nurse Dowling. The two nurses then transferred Ms. Comber to her bedroom, laid her out on her bed and changed her clothes. No doctor, ambulance or other person was summoned by them, and they went off duty at approximately 8am.

4

Before going off duty, Nurse Carroll completed two documents. Nurse Dowling was fully aware of the entries made by Nurse Carroll. The 'Heatherside Hospital night report' and the 'Communication Sheet' contained the following entries regarding Ms. Comber: 'remained restless, out to commode at 1.30am', 'requested to get dressed and get up. Dressed and sat on chair in dayhall. Continued to talk loud until 4am. Dozed in chair until 5am. Slipped off chair. Unresponsive. Put back to bed. Vital signs absent RIP'. A nurse Crowley, who came on duty at 8am, was told that Ms. Comber had slipped down or slumped in her chair. She passed this information on to Dr. Kennedy, the doctor who subsequently attended the hospital at the request of Matron Moore, the Matron who came on duty the morning after the death of Ms. Comber. What is significantly absent from these entries and communications is any suggestion or hint that the death might have been caused by the restraining belt or that it might have been from anything other than natural causes.

5

Nonetheless, Dr. Kennedy was of the view that it was a coroner's matter because the death was unexpected and he contacted the Gardai. Later that afternoon, the pathologist, Dr. Bolster, rang him to inform that the cause of death was consistent with asphyxia. This raised concerns, particularly in light of the absence of any information from the nurses that might have suggested anything unusual about Ms. Comber's death. Members of an Garda Siochana arrived at the hospital during the late afternoon of the 22nd June, 2006, to interview persons in connection with the death.

6

Nurse Dowling made a witness statement to the Gardai which was signed at 6.50pm. Nurse Carroll made a statement to the Gardai, which was signed at 10.35pm. The Gardai cautioned her during the taking of this statement, after she said that the care attendant had fallen asleep while looking after Ms. Comber. The Gardai then interviewed the care attendant who signed a statement at 1.00am on the 23rd June, 2006. The Gardai then decided to re-interview Nurse Dowling pursuant to caution by reason of differences between the other accounts given to them and her own account, and she signed this second statement at 2.15am on the 23rd June, 2006.

7

In addition to the Garda investigation, which, it should be said, did not lead to the preferring of any criminal charges, the events in question led to the holding of an inquest, the conduct of a HSE inquiry, and an inquiry by the Fitness to Practice Committee by the defendant Board. Obviously, the latter is the most relevant to these proceedings. The history of the proceedings before the Board and the Fitness to Practice Committee can be sub-divided into a number of separate periods.

The first period: from the initial complaint to service of the documents for hearing (8th August, 2006 – 12th May, 2010)

8

The first contact was made with the defendant Board on the 8th August, 2006. The Matron who came on duty the morning of the death of Ms. Comber, Matron Moore, wrote to the Board, making a preliminary inquiry as to who the appropriate persons or authorities were, to whom a complaint should be made. Apart from a holding letter, this letter was not responded to until the 19th December, 2006, over four months later, when the Board replied that, while a matter should be brought to the attention of senior nurse management, it was also open to any person to refer such a complaint to the Fitness to Practise...

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3 cases
  • Colin Lannon v Council of the Pharmaceutical Society of Ireland
    • Ireland
    • High Court
    • 11 February 2022
    ...Court would need to find a specific reason for altering it on the evidence presented on the appeal.” 25 In Dowling v. An Bord Altranais [2017] IEHC 62, Ní Raifeartaigh J. considered the proper approach of the court to an application for cancellation of a decision on sanction under s. 39 (3)......
  • Dowling v Bord Altranais agus Cnaimhseachais na hÉireann
    • Ireland
    • High Court
    • 6 September 2017
    ...to s. 39(3) of the Nurses Act 1985 ('the Act of 1985') in which I delivered judgment on the substantive issues on 25th January, 2017; [2017] IEHC 62. 2 The two plaintiff nurses in the substantive proceedings case did not challenge the findings of the Fitness to Practice Committee of An Bor......
  • T. v The Chief Executive Officer of the Nursing and Midwifery Board of Ireland
    • Ireland
    • High Court
    • 2 October 2020
    ...of the outcome of the process. Similar views were expressed by Ní Raifeartaigh J. in the High Court in Dowling v. An Bord Altranais [2017] IEHC 62, where she stated as follows at paragraph 66:- “Although the powers of the High Court in an application such as that in Herman are not the same ......

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