Fitzgerald v Minister for Defence

JudgeMr. Justice William M. McKechnie
Judgment Date22 March 2003
Neutral Citation2002 WJSC-HC 2578
CourtHigh Court
Docket Number[2000 No. 104 J.R.],[No. 104 J.R./2000]
Date22 March 2003


[2000 No. 104 J.R.]


Judicial review - Defence forces - Certiorari - Whether decision to discharge applicant from defence forces ought to be quashed - Whether breach of natural and constitutional justice - Whether respondents truly considered applicant’s condition on the merits

The applicant applied for judicial review seeking an order of certiorari quashing the decision of a Medical Board to categorise her as “not having been finally approved” and secondly, as a direct result of such finding, to recommend her discharge from the Defence Forces. The applicant contended that the decision was unreasonable and irrational and that the first respondent failed to act in accordance with natural justice in not asking her about her condition. The applicant also stated that she had a legitimate expectation that on completion of her training she would be given a full hearing concerning her medical condition.

Held by McKechnie J. in setting aside the decision of the Medical Board that the applicant was not aware of the significance of her medical examination and as a result was disadvantaged and accordingly her rights, guaranteed under natural and constitutional justice were not adhered to. The applicant’s right to have an opportunity of pursuing her career dictated that each essential step of the process had to comply with the requirements of natural and constitutional justice and omissions in that regard could not be corrected by the availability of an appeal.


JUDGMENT of Mr. Justice William M. McKechnie dated the 22nd day of March 2002


1. By order of this Court dated 6th March, 2000, Ó Caoimh J., granted to the applicant leave to apply by way of an application for judicial review for the reliefs sought at para. (d) (i) and (ii), as amended, of the statement grounding the application and did so on the grounds specified at para. (e) (i) (ii) and (iv) thereof. In essence what is sought from this Court is an order of certiorari quashing the decision of a Medical Board to categorise Ms. Fitzgerald as “not having been finally approved” and secondly, as a direct result of such finding, to recommend her discharge from the Defence Forces.


The grounds upon which leave was obtained were as follows:

  1. (i) The reported decision of the Medical Board made on the 21st October, 1999, was unreasonable and irrational and accordingly ultra vires. The Board adopted a

    fixed and inflexible policy and did not take into account the personal circumstances of the applicant,

  2. (ii) The first named respondent failed to act in accordance with the principles of basic fairness of procedure and of natural and constitutional justice. The Medical Board did not call for or permit any representations by the applicant and did not seek any evidence of her condition relating to coeliac disease,

  3. (iii)The Medical Board failed to properly consider the plaintiff’s circumstances and failed to exercise its discretion properly or at all and applied the “D.M.C.” instruction for medical officers without deciding the case on its merits, and finally

  4. (iv) The applicant had a legitimate expectation that on completion of her training but prior to any question of her discharge from the Naval Service a fair and full hearing would be given to her concerning her medical condition.


2. In support of her application Ms. Fitzgerald has sworn a number of Affidavits as well as filing an Affidavit from Dr. Cronin, a consultant physician with a special interest in coeliac disease. The replying documentation has been sworn by Lieutenant Colonel Monaghan, Colonel Maurice Collins, the Director of the Defence Forces Medical Corps and Commandant Mary Murphy.


In the Statement of Opposition served on behalf of the respondents, the Minister, in addition to denying the claim as asserted, has affirmatively pleaded as follows:

  1. (1) That the Medical Board took into account the personal circumstances of the applicant and did not adopt a fixed or inflexible policy in coming to its decision,

  2. (2) That the Defence Force Regulations (D.F.R.) A 12 and in particular Part VI, Section II were adhered to and followed in arriving at the said decision,

  3. (3) That under the heading of “Constitution”, the giving to the applicant of Grade 3 was in the circumstances proper and was fully justified,

  4. (4) That as a result of this classification the Medical Board’s recommendation that the applicant “be not finally approved” was correct and was made in accordance with D.F.R. A.10 para. 58 1 (a),

  5. (5) That Ms. Fitzgerald availed of her right to appeal and as part of this process had a full opportunity to, and in fact did, make representations to the Director of the Medical Corps and finally,

  6. (6) The resulting decision of Colonel Collins has not been impugned by the applicant in these proceedings.


3. The applicant, who was born on the 24th July, 1980, had spent a total of 158 days with the Naval Service prior to her purported discharge on the 9th December, 1998. She held the rank of recruit with the No. 101,469. In order to pass out and become a member of the permanent Defence Forces, an ambition deeply cherished by her, she was obliged to undergo a medical examination and to obtain a specified classification therein. It is what occurred in this context that gives rise to the issues which form the subject matter of this decision.


4. On the 24th May, 1999, Ms. Fitzgerald on joining the service, underwent her initial medical examination by Commandant O’Brien, who indicated in the appropriate Form A.F. 14 A, that she suffered from none of the illnesses therein listed or indeed from any other illness not so listed. On the 14th July of that year, she was however diagnosed as having an upper respiratory tract infection. She was placed on antibiotics and confined to classroom duties. Some two weeks later she was found to have a cough and whilst no specific treatment was prescribed, it was noted by the civilian doctor, Dr. O’Sullivan, that approximately two


years previously she had been seen by a chest physician in connection with a cough of six months duration, and had been given Ventolin and Becodide.


5. On an A.F. 487 form, filled out on the 5th August, 1999, it was recorded that she had a bronchial cough for which she was given the antibiotic, Augmentin. It was also noted that she had at least one episode of blood stained sputum. In the two weeks which followed she was admitted to the military medical faculty at Collins Barracks in Cork, where on routine investigation it was confirmed that she was suffering from anaemia and that her serum ferritin was below normal level. At the time of her discharge from Collins Barracks, on August, investigations were continuing into the cause of this iron deficiency anaemia and whilst awaiting the results she was given a medical classification code of 81/TT/111.


6. Having tested positive for Endomysial antibodies, arrangements were made for her admission to the University College Hospital in Cork on 1st September, 1999. She was under the care of Dr. Whelton. It was not possible to carry out the investigations on that occasion. On the 29th September, following a gastroscopy and a low duodenal biopsy, a positive diagnosis of coeliac disease was made though, by virtue of the said positive antibody test, this condition was previously thought to exist. Indeed, these tests, without the subsequent confirmation, prompted Commandant Murphy to make a clinical note on 15th September querying the applicant’s “ability to continue in service ?? - Coeliac Disease -?? Grade 3.”


7. On 6th October, 1999, the applicant was seen by Commandant Kerr for a grading or classification medical, prior to her final approval for permanent service. No decision was made at that time. By letter dated 19th October, Dr. Whelton’s registrar wrote to


Commandant Murphy and in effect confirmed to this doctor that Ms. Fitzgerald was indeed suffering from coeliac disease.


8. On 21st October, 1999, the applicant was reviewed by a Medical Board which was presided over by the said Dr. Murphy with Commandant Kerr being the only other member. Before the Board was the applicant’s complete medical file. The Board, in respect of Ms. Fitzgerald, made a finding that she was suffering from coeliac disease and as a result reclassified her medical category to 80 - 31 - 111. Its concluding recommendation was that “this recruit be not finally approved in accordance with DFR Al0 paragraph 58 (1) a.”


According to the principle replying affidavit of Lieutenant Colonel Monaghan, given the applicant’s need for a gluten free diet, this recommendation of the Medical Board was issued under and in pursuance of the aforesaid instruction No. 4 of the D.M.C. which is referred to at para. 1 above.


9. On the 2nd November, 1999, Ms. Fitzgerald was formally notified of the decision of the Medical Board and of the manner in which she was to be dealt with. In effect she was to be discharged, in accordance with the said para. 58 (1) (a) of the D.F.R. A.10. She was informed of her right to appeal in writing within seven days, that is, to appeal against her discharge from the Naval Service.


By letter in writing dated the 9th November, 1999, she exercised this right. On her own behalf she claimed that her disease “would have no effect on me whatsoever if I do not eat food containing wheat, barley or rye”. In support of what she hoped would be a successful appeal she enclosed a letter dated 1st November, 1999, from her treating physician, Dr. Cronin.


Unfortunately the Director of the Medical Corps, Colonel Collins, did not so agree. His decision, committed to writing and dated the 18th November, rejected her appeal. He agreed with the medical classification assigned to her and...

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