Maguire v South Eastern Health Board

JurisdictionIreland
JudgeFinnegan J.
Judgment Date25 January 2001
Neutral Citation[2001] IEHC 11
Docket Number[1999 No. 346 J.R.]
CourtHigh Court
Date25 January 2001
MAGUIRE v. SOUTH EASTERN HEALTH BOARD

BETWEEN

MARIE NEVIN MAGUIRE
PAUL HAGUIRE
APPLICANTS

AND

SOUTH EASTERN HEALTH BOARD
RESPONDENT

[2001] IEHC 11

No. 346 JR/1999

THE HIGH COURT

Synopsis:

Administrative Law

Administrative; declaratory relief; moots; applicants had applied for home delivery services from respondent, under relevant Health legislation in respect of birth of their sixth child; respondent had refused on the ground that applicants were unsuitable candidates; applicants had refused respondent's offer to deliver child in hospital; respondent had also offered an ex gratia payment of part of the cost of an independent midwife; applicants had obtained leave to apply for an order of mandamus compelling respondent to provide home birth services; before case came on, applicants' child had been born, rendering substantive relief sought moot; whether order of mandamus could issue where events had overtaken the principal relief sought; whether Court should exercise its discretion against the grant of declaratory relief where the declaration relates to future rights or depends on a contingency or where a mere academic question of no practical value is involved.

Held: Application refused.

Maguire v. South Eastern Health Board - High Court: Finnegan J. - 25/01/2001 - [2001] 3 IR 26

The applicants sought to have the birth of their sixth child at home. The respondents had a policy that all births take place in properly equipped maternity units but would facilitate home births. The policy regarded as unsuitable for home delivery the sixth and subsequent deliveries and refused the applicants' request. The respondent did offer a grant towards the cost of home delivery by way of ex gratia payment. The applicants sought to challenge the policy of the respondents and in this regard obtained leave to apply for an order of mandamus compelling the respondents to provide birth services as set out in section 62 of the Health Act, 1970. However as the child was subsequently born the issue before the court was whether it was appropriate to grant the relief originally sought. Finnegan J held that as events had overtaken the relief sought an order of mandamus should not now issue. Such relief should not be granted where the declaration relates to future rights or depends upon a contingency or where a mere academic question of no practical value was involved. The application for declaratory relief was refused

Citations:

HEALTH ACT 1970 S62

HEALTH ACT 1970 S62(1)

CHANCERY (IRL) ACT 1867 S155

ELLIOTSON V KNOWLES 1842 11 LJCH 399

STATUTE LAW REVISION ACT 1893

JUDICATURE (IRL) ACT 1877

RULES OF THE SUPREME COURT 1905 O.25 r5

RULES OF THE SUPREME COURT 1962 O.19 r29

RSC O.19 r29

AG V SCOTT 1905 2 KB 160

BENNET V CHAPPELL 1965 3 AER 130

GIBSON V UNION OF SHOP DISTRIBUTIVE & ALLIED WORKERS 1968 2 AER 252

PARSON V IARNROD EIREANN/ IRISH RAIL 1997 8 ELR 203

DEVLIN V MIN FOR ARTS CULTURE & THE GAELTACHT 1999 1 IR 47

BRADY V CAVAN CO COUNCIL 2000 1 ILRM 81

BELFAST WEST POWER LTD V BELFAST HARBOUR COMMISSIONERS 1998 NILR 112

SPRUYT & WATES V SOUTHERN HEALTH BOARD UNREP SUPREME 17.10.1988

1

Finnegan J. delivered the 25th day of January 2001

2

The Applicants are a husband and wife and reside at Daisybank House Powers Hill, Checkpoint, County Waterford. They have five children. At the institution of these proceedings the Applicants were expecting their sixth child and wanted a home delivery. The Respondent decided that the First Named Applicant was an unsuitable candidate for a home delivery and offered to deliver the First Named Applicant's baby in hospital which offer was declined. The Respondent has a policy that all births take place in properly equipped and staffed maternity units but will facilitate home deliveries. The policy regards as not suitable for home delivery the sixth and subsequent deliveries and on this basis considered the First Named Applicant to be unsuitable for a home delivery.

3

On 1st September, 1999 the Applicants sought and obtained leave to apply for an Order of Mandamus compelling the Respondent to provide the birth services set out in Section 62 of the Health Act 1970together with further and other relief and costs. The substantive relief sought in the Statement to ground the application for Judicial Review is in the following terms-

" An Order of Mandamus compelling the Respondent to provide midwifery services to the First Named Applicant who is with child pursuant to Section 62 of the Health Act 1970and regulations made thereunder"

4

The Statement goes on to seek further and other relief and costs.

5

Having refused to provide home delivery services the Respondent did offer to make a grant towards the costs of such services on an ex gratia basis. The Applicants' child was born on the 7th November, 1999. In these circumstances at the opening of the case it was submitted to me by Counsel on behalf of the Respondent that the issue was moot. The Applicants contend that they are entitled pursuant to the terms of the leave given to seek declarations which would in effect answer the following two questions:–

6

1 What is the ambit of the Respondent's obligations under Section 62 of the Health Act 1970?

7

2 Is it a sufficient discharge of the Respondent's obligations under Section 62 of the Health Act 1970to offer the Applicants £600.00 by way of ex gratia payment which is approximately half the normal cost of securing the services of an independent midwife?

8

Having decided that the substantive relief sought was clearly moot I heard argument as to whether it was appropriate that the matter should proceed further the Applicant seeking only declaratory relief and costs.

9

The Health Act 1970Section 62 thereof provides as follows-

" 62(1) A Health Board shall make available without charge medical, surgical and midwifery services for attendance to the health, in respect of motherhood, of women who are persons with full eligibility or persons with limited eligibility."

10

Prior to the Chancery (Ireland) Act 1867 Section 155 a Court of equity would not make a declaration of right except as incidental to relief given: Elliotson-v-Knowles (1842) 11L.J.CH.399. The Chancery Ireland Act 1867 Section 155 provides as follows–

11

155. No suit in this Court shall be open to objection on the ground that a merely declaratory decree or order is sought thereby, and it shall be lawful for the Court to make binding declarations of right without granting consequential relief"

12

While the Chancery...

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