Fitzgerald v Minister for Defence

• Jurisdiction: Ireland
• Judge: FENNELLY J.
• Judgment Date: 19 November 2003
• Neutral Citation: [2003] IESC 57
• Docket Number: Appeal No. 101/2002
• Court: Supreme Court
• Date: 19 November 2003

FITZGERALD v. MIN FOR DEFENCE & ORS

BETWEEN

Maria Fitzgerald

Applicant/Respondent

and

Minister for Defence Ireland and the Attorney General

Appellant/Respondent

[2003] IESC 57

Appeal No. 101/2002

THE SUPREME COURT

Synopsis:

JUDICIAL REVIEW

Certiorari

Defence forces - Irrationality - Whether decision to discharge applicant from defence forces ought to be quashed - Whether decision irrational - Whether breach of natural and constitutional justice (101/2002 - Supreme Court - 19/11/2003)

Fitzgerald v Min for Defence

The applicant applied for judicial review seeking orders of certiorari quashing decisions of the Medical Board. The applicant had been diagnosed with coeliac disease and the Board had recommended that she not be finally approved. As a direct result of this finding, the applicant was discharged from the Defence Forces. The applicant contended that the decision was unreasonable and irrational and that the Board had failed to act in accordance with natural justice in not asking her about her condition.

Held by the Supreme Court (Hardiman, Geoghegan and Fennelly JJ) in allowing the appeal and dismissing the application for certiorari that the hurdle of irrationality was a high one. The applicant did not come anywhere near discharging the onus of establishing that no reasonable body of persons performing the function of medical assessment which was performed by the Board could have reached the decision they did.

Reporter: R.W.

Citations:

DEFENCE FORCE REGS (DFR) A 10 O. 58

DEFENCE FORCE REGS (DFR) A 10 O. 58(A)

DEFENCE FORCE REGS (DFR) A 12 ART 61(2)

DEFENCE FORCE REGS (DFR) A 12 ART 66(1)

DEFENCE FORCE REGS (DFR) A 12 ART 70

DEFENCE FORCE REGS (DFR) A 12 ART 71

DEFENCE FORCE REGS (DFR) A 12 ART 72

DEFENCE FORCE REGS (DFR) A 12 ART 73

DEFENCE FORCE REGS (DFR) A 12 ART 74

DEFENCE FORCE REGS (DFR) A 12 ART 71(2)

DEFENCE FORCE REGS (DFR) A 12 ART 66

DEFENCE FORCE REGS (DFR) A 12 ART 14

DEFENCE FORCE REGS (DFR) A 12 ART 66(2)

1 JUDGMENT delivered on the 19th day of November. 2003 by FENNELLY J.

FENNELLY J.

2 This is an appeal from a judgment of McKechnie J. He granted orders of certiorari to the Applicant/Respondent ("the Applicant"), a navy recruit, quashing a decision to discharge her from the Defence Forces on the ground that her appointment had not been finally approved. The reason for her discharge was that she had been discovered to be a coeliac.

The Facts

3 The Applicant enlisted in the navy on 5^th July 1999. She had undergone a medical assessment prior to enlistment, In the summer of 1999, she was suffering from a persistent respiratory tract infection. She was twice admitted to the Military Medical Facility at Collins Barracks, Cork and then to University College Hospital.

4 It came to be suspected that she was suffering from celiac's disease. Commandant Mary Murphy, a medical doctor and a member of the Medical Corps of the Defence Forces, ordered tests including a coeliac antibody screen, which proved positive. Commandant Murphy advised the Applicant that it looked like she had celiac's disease. Commandant Murphy arranged for the Applicant's admission to University College Hospital on 1^st September 1999. Commandant Murphy made a clinical note on 15^th September 1999 as follows: "ability to remain in service??- Coeliac Disease?? Grade 3."

5 Commandant Murphy has deposed on affidavit to the fact that she told the Applicant on several occasions about this time that "there could be a problem with her career in the navy because she would have to be in the highest grade to pass out of recruit training…" and that she was "afraid that a diagnosis of Coeliac's disease could prevent final approval." In reply to this, the Applicant has sworn that her only recollection is that Commandant Murphy said that "she was optimistic about my health but pessimistic about my career." She swore that she had no idea what these words meant or that it meant that she would not pass out. She assumed that it would only affect her promotional prospects in the navy.

6 In the event, the coeliac diagnosis was confirmed on 19^thOctober 1999, in a letter from a Registrar at University Hospital to Commandant Murphy. This had been preceded by a verbal confirmation, also to Commandant Murphy on 12^th October.

7 On 6^th October, the Applicant presented to another medical officer, Commandant Gerard Kerr, for medical grading classification, a procedure, which, as will appear, is necessary to the process of final approval of recruits for permanent service.

8 On 21^st October, the Applicant was called to appear before a Medical Board consisting of Commandant Murphy, presiding, and Commandant Kerr.

9 The Medical Board had before it the Applicant's file, containing her complete medical record. In addition and crucially, it had before it instruction No. 4 of the Director, Medical Corps ("DMC 4"), one paragraph of which, set out fully later in this judgment, under a reference to celiac's disease, states that "personnel requiring gluten free diets should not be graded higher that "Constitution 3." In order to pass out, a recruit would have to have a Constitution Grade of at least 2. The Board classified the Applicant accordingly and recommended that she not be finally approved in accordance with DFR A. 10, paragraph 58(a).

10 On 2^nd November, the Applicant was paraded and was told that the Medical Board had directed that she be classified as a person not having been finally approved. She was discharged from the Naval Service on this ground. She had served for 158 days and was otherwise qualified for final approval, as she had successfully completed all other elements of her training. She was informed of her right to appeal in writing within seven days. She stated in her appeal that she had been examined by Dr Cornelius Cronin, a "top specialist in coeliac's disease" and that he had informed her that there were only minor traces of coeliac disease in her tissue which would have no effect whatever on her if she did not eat food containing wheat, barley or rye. She attached a copy of Dr Cronin's letter to her notice of appeal. She said that she would have no difficulty in adhering to such a gluten-free diet. Dr Cronin, in his letter said:

"I myself believe that coeliac disease should not be defined as an impairment or disability at all… Anyone with a modicum of intelligence should have no difficulty adhering to a gluten-free diet, either at sea or when ashore, or even in combat conditions."

11 The appeal was heard and considered by Colonel Maurice Collins, Director of the Medical Corps, but rejected by him. In his affidavit in these proceedings, Colonel Collins does not advert at all to Dr Cronin's report, but deposes that a failure to adhere to the appropriate diet can result in severe ongoing symptoms and may lead to major complications. He also swears that operational duty may last for quite long periods and that "despite best efforts, there can be no guarantee of the continual supply of essential dietary foods…"

12 Lt. Colonel Monaghan, Deputy Director of the Army Medical Corps, in an affidavit deposes to the reasons for the classification of the Applicant as Constitution grade 3. He says that this was done in line with DMC 4. He also deposes as follows:

13 2 "5.As the Applicant's health is very much dependant on her strict compliance with a gluten-free diet, and as diet cannot be readily accommodated or guaranteed within the Defence Forces ration scales, particularly when the Applicant would be engaged in sea-going and collective field training or overseas services which may last for a considerable length of time, it would be irresponsible of the Naval Authorities and, indeed a failure of its duty of care to the Applicant to deploy the Applicant in such circumstances. Since the normal supply of all items, including food to personnel deployed on active service is by military systems, cognisance has to be taken of the fact that these systems are seldom such that they can guarantee supply of special dietary items to troops in the field. Any interruption of the gluten-free diet would cause an unacceptable risk to the health of the Applicant and, therefore, the Applicant was graded Constitution 3.

14 16. Persons who have been discovered to have Coeliac Disease subsequent to final approval are then graded Constitution 3 and are restricted with regard to the range of duties they are considered suitable for. For example, in other words, they are not deployed in combat areas (whether as combatants or as peace keepers) as they may be cut off from their sources of supply and there may be severe interruption of supplies of items essential to the maintenance of their health."

The Regulations

15 All the foregoing took place in accordance with the Defence Force Regulations ("DFR"), which, though statutory instruments adopted and passed pursuant to the Defence Acts, are exempt from publication. Order 58 of DFR A. 10 deals with discharge from the Defence Force. Paragraph (a) provides: "When a recruit is not finally approved for service he will thereupon be discharged with all convenient speed."

16 DFR A. 12 deals with medical treatment in the Defence Force. Article 61 (2) requires that recruits be classified before being finally approved. Article 66 (1) provides that classification is to be carried out in accordance with instructions which "shall be issued by the Director, Medical Corps."

17 Articles 70 to 74 of DFR A.12 lay out a detailed scheme of medical classification. Some headings deal with specific matters such as military fitness, keenness of vision, colour vision, keenness of hearing. The relevant matter for present purposes is in Article 71(2) headed: "Constitution." Grade 3 under this heading is explained in these terms: "Personnel with moderate impairments or disabilities who have a chronic medical condition which requires supervision and...