K. v an Bord Altranais

• Jurisdiction: Ireland
• Judgment Date: 21 March 1990
• Date: 21 March 1990
• Docket Number: [1989 No. 463 Sp]
• Court: Supreme Court

K. v. An Bord Altranais

C.K.

Applicant

and

An Bord Altranais

Respondent

[1989 No. 463 Sp]

High Court

Supreme Court

Nurses - Disciplinary procedures - Power of An Bord Altranais to erase name of nurse from register of nurses for professional misconduct - Application to High Court to cancel decision to erase name - Whether role of High Court merely supervisory - Whether effective decision on erasure to be made by High Court - Whether right to rehearing in the High Court - Nurses Act, 1985 (No. 18), ss. 38 and 39.

Practice and Procedure - Special summons - Circumstances in which High Court should hear oral evidence on special summons - Rules of the Superior Courts, 1986 (S.I. No. 15), O. 95, r. 5.

Section 38 of the Nurses Act, 1985, lays down the procedure for the investigation of allegations against nurses of professional misconduct. The section provides for an inquiry to be conducted by the Fitness to Practice Committee and for the making by that committee of a report to An Bord Altranais ("the Board") embodying its findings. Section 39, sub-s. 1 provides that where a nurse has been found by the Fitness to Practice Committee to be guilty of professional misconduct, the Board may decide that the name of such person should be erased from the register of nurses or that, during a period of specified duration, registration of the person's name in the register should not have effect. Section 39, sub-s. 3 provides that a person in relation to whom such a decision is made may apply to the High Court for an order cancelling the decision. Where no such application is made, the Board may apply ex parte to the High Court under s. 39, sub-s. 4 of the Act for confirmation of the decision.

Professional misconduct was alleged against the applicant and an inquiry was convened by the Fitness to Practice Committee. At the inquiry the thrust of the applicant's defence was that the allegations were untrue and were motivated by ill-will. Acting on the report of the Committee the Board decided that the allegations had been made out in part and that the applicant's name should be erased from the register. The applicant appealed to the High Court pursuant to s. 30, sub-s. 3 of the Act. Prior to the hearing, application was made on her behalf for an order directing that the contested issues of fact raised in the inquiry be tried on oral evidence. On the hearing of this application it was

Held by Costello J., in refusing the order sought, 1, that the applicant did not have a right of re-hearing in the High Court. The role of the court was a supervisory one to ensure that the decision had been taken in accordance with fair and proper procedures. The court should neither hear fresh evidence nor re-hear evidence given in the inquiry.

2. That the procedures set out in the Act of 1985 had been operated in a fair, reasonable and constitutional way and the applicant had been afforded the right to representation and to make submissions to the Board.

In re M., A DoctorIR [1984] I.R. 479 distinguished.

On the applicant's appeal against the judgment and order of the High Court it was

Held by the Supreme Court (Finlay C.J., Griffin and McCarthy JJ.), in allowing the appeal and making the order sought, 1, that the essence of the statutory procedure was that it was in the High Court that the effective decision leading to an erasure or suspension of the operation of registration was to be made. To allow the decision to be made by a body which was not a court established by the Constitution would be impermissible.

In re M., a DoctorIR [1984] I.R. 479, M. v. The Medical CouncilIR[1984] I.R. 485 and In re The Solicitors ActIR[1960] I.R. 239 applied.

2. That in order to fulfil this role any essential decisions in a particular case must be made by the High Court. In a case such as the instant one, where the decision depended on the truth or falsity of evidence as to conduct and not on any question of standards, rules or principles of professional conduct, it was essential that the High Court must reach its own conclusions as to the truth or falsity of the allegations.

Cases mentioned in this report:—

Doughty v. General Dental CouncilELRWLRUNK [1988] A.C. 164; [1987] 3 W.L.R. 769; [1987] 3 All E.R. 843.

In re M., a DoctorIR [1984] I.R. 479.

M. v. The Medical CouncilIR [1984] I.R. 485.

In re The Solicitors ActIR [1960] I.R. 239.

Special Summons

The applicant was a state registered nurse against whom certain allegations of professional misconduct were made. Pursuant to s. 38 of the Nurses Act, 1985, an inquiry was commenced by the Fitness to Practice Committee of an Bord Altranais. The inquiry commenced on 5th December, 1988, and was completed on 1st April, 1989. The Committee reported to the Board on 25th May, 1989. At a meeting of the Board on 22nd June, 1989, the report was considered. It was decided that the allegations had been substantiated at least in part and it was further decided that the applicant's name should be erased from the register of nurses.

By special summons dated the 12th July, 1989, the applicant applied to the High Court for an order cancelling the decision to erase her name from the register and for a declaration that the decision was void by reason of its having been arrived at without any proper inquiry being held and/or against the evidence and/or in breach of natural and constitutional justice and/or in breach of statutory rights and/or in breach of the provisions of the Act.

Application was made for an order directing that the contested issues of fact which had arisen in the inquiry should be heard on oral evidence.

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