McMeel v Minister for Health

• Jurisdiction: Ireland
• Judge: O'HIGGINS C.J.,GRIFFIN J. Hedeman J. concuming
• Judgment Date: 01 January 1985
• Neutral Citation: 1985 WJSC-SC 541
• Court: Supreme Court
• Date: 01 January 1985

1985 WJSC-SC 541

THE SUPREME COURT

O'Higgins C.J.

Griffin J.

Hederman J.

192/84

McMEEL v. MIN HEALTH

MCMEEL AND OTHERS

Plaintiffs

and

THE MINISTER FOR HEALTH

AND NORTH EASTERN HEALTHBOARD

Defendants

Citations:

HEALTH ACT 1947

HEALTH ACT 1947 S10

HEALTH ACT 1947 S10(1)

HEALTH ACT 1947 S10(2)

HEALTH ACT 1947 S10(4)

HEALTH ACT 1947 S11

HEALTH ACT 1947 S11(1)

HEALTH ACT 1947 S11(2)

HEALTH ACT 1947 S2

HEALTH ACT 1953

HEALTH ACT 1970

HEALTH ACT 1970 S1(2)

HEALTH ACT 1970 S36

HEALTH ACT 1970 S38

HEALTH ACT 1970 S38(1)

HEALTH ACT 1970 S38(2)

HEALTH ACT 1970 S38(3)

HEALTH ACT 1970 S38(4)

HEALTH ACT 1970 S38(5)

HEALTH ACT 1970 S6

HEALTH ACTS 1947–1970

RSC 0.25

Synopsis:

MINISTER OF STATE

Powers

Health services - Hospital - Department - Closure - Statute - Interpretation - Power to give a direction to a Health Board in relation to "the provision or maintenance" of any premises - Health Board directed to discontinue gynaecological unit - Direction given ultra vires - Decision of High Court (24/5/84) reversed - Health Act, 1970, s. 38 - (192/84 - Supreme Court - 19/12/84).

McMeel v. Minister for Health

SOCIAL SERVICES

Health

Hospital - Department - Closure - Power of Minister - Statute - Interpretation - Power to give a direction to a Health Board in relation to "the provision or maintenance" of any premises - Health Board directed to discontinue gynaecological unit - Direction given ultra vires - Decision of High Court (24/5/84) reversed - Health Act, 1970, s. 38 - (192/84 - Supreme Court - 19/12/84).

McMeel v. Minister for Health

STATUTE

Interpretation

Minister of State - Powers - Hospital - Department - Closure - Power to give a direction to a Health Board in relation to "the provision or maintenance" of any premises - Health Board directed to discontinue gynaecological unit - Direction given ultra vires - Decision of High Court (24/5/84) reversed - Health Act, 1970, s. 38 - (192/84 - Supreme Court - 19/12/84).

McMeel v. Minister for Health

WORDS & PHRASES

"Provided and maintained"

Hospital - Department - Closure - Health Act, 1970, s. 38 - (192/84 - Supreme Court - 19/12/84).

McMeel v. Minister for Health

WORDS & PHRASES

"Provision or maintenance"

Minister of State - Powers - Hospital - Department - Closure - Power to give a direction to Health Board in relation to "the provision or maintenance" of any premises - Health Board directed to discontinue gynaecological unit - Direction given ultra vires - Decision of High Court (24/5/84) reversed - Health Act, 1970, s. 38 - (192/84 - Supreme Court - 19/12/84).

McMeel v. Minister for Health

1 JUDGMENT delivered the 19th day of December 1984by O'HIGGINS C.J. HEDERMAN J. Concurring

2 The plaintiffs reside in the County of Monaghan. Four of them are married women and two are married men. All are concerned for and interested in the provision and maintenance at the County Hospital in Monaghan of an obstetrical, gynaecological and paediatric service. It is because of the threatened discontinuance of these services that these proceedings have been commenced. The services in question are provided at present in the County Hospital in Monaghan. This hospital was built in 1937, prior to the reorganisation of health services throughout the country which took place under a number of Health Acts commencing in 1947 and continuing until 1970.

3 Health services in the County of Monaghan together with such services in the Counties of Cavan, Meath and Louth are now administered by the North Eastern Health Board. This Board was established with other similar Boards under the provisions of the Health Act of 1970. Some years ago the Minister for Health decided to build in the County of Cavan, within the North Eastern Health Board area, a new general hospital. Originally this hospital was planned to have 336 beds and it was intended that it would replace three existing hospitals which were: The Surgical Hospital in Cavan; The Medical Hospital at Lisdarn; and the The County Hospital in Monaghan. However, the proposal to close the County Hospital at Monaghan encountered considerable and sustained local opposition. Eventually the Minister modified his original plans. He decided to permit the Monaghan hospital to remain open and because of this to reduce the proposed size of the new hospital in Cavan from 336 beds to 241 beds. Having regard, however, to the number and distribution of obstetrical beds in thedevelopments planned for the area, the Minister concluded that it would be wasteful and uneconomic to continue the obstetrical and allied services in the Monaghan Hospital. His decision, therefore, was that the hospital would continue but without its obstetrical, gynaecological and paediatric unit. This compromise decision did not satisfy the Plaintiffs. They have brought this action seeking a declaration that the Minister's decision directing the discontinuance of the services in question is ultra vires and, accordingly, illegal and void and they have claimed associated relief. They base their claim on an alleged absence of statutory powers and also on allegations of interference with constitutional rights.

4 It is only necessary on this appeal to consider the question of the Minister's statutory powers to direct the discontinuance of theservices.

5 The Minister claimed in the High Court, in resisting the action brought by the Plaintiffs, that he was empowered to give the direction for the discontinuance of the services under the provisions of Section 38(2) oftheHealth Act 1970. The learned High Court Judge confined the argument at the trial to the issue thus raised. He did so because he concluded that this issue was one of law, capable of being decided without evidence on the pleadings and was one which, if decided in favour of the Plaintiffs, would have avoided the necessity for an enquiry, possibly prolonged, into the alleged breaches of constitutional rights. In fact he decided this question against the Plaintiffs but, having been pressed by both parties to facilitate an early appeal to this Court, did not take up the Constitutional issue, so that this Court could finally pronounce on the question of statutory powers. In my view this was a very sensible course to adopt and is the kind of procedure which is envisaged by and accords with Order 25 of the Rules of the Superior Courts. It has enabled this net issue to be considered on appeal in this Court without involving the parties in the costs of prolonged litigation which might prove in the end to have been unnecessary.

6 The Minister claimed that he was authorised to directthe discontinuance of the stated services under the provisions of Section 38(2) of the Health Act 1970and as indicated, the question which the trial Judge had to decide was whether this was so or not.

7 The Health Act 1970provided for a major reorganisation of health services throughout the country. In particular it established Health Boards for regions comprising groups of Counties. By Section 6 each Health Board was charged with the performance of what may, generally, be described as the health functions formerly discharged by the Local Authorities in the particular region, together with such additional functions as were conferred by the Act. By section 36 all health institutions and all other property which immediately before the establishment of each Board were used solely for the purposes of the health functions of the Local Authorities in the area of that Health Board, were transferred to that Board. The term "institution" is defined in the Health Act 1947as including "hospital" and the term "health institution" as meaning an institution maintained by a Health Authority under thatAct (see Section 2, Health Act 1947). It seems clear, therefore, that all hospitals which were used and maintained by Local Authorities acting as Health Authorities immediately before the establishment of the relevant Health Board, were transferred to that Board by the Health Act of 1970together with the responsibility for the discharge of all the existing health functions of the Local Authorities, together with responsibility for such new functions as were conferred on the Board by the newAct.

8 It is now necessary to consider the terms of Section 38 of the Health Act 1970, which provides as follows:

9 2 "38 – (1) A Health Board may, with the consent of the Minister, provide and maintain any hospital, sanitorium, home laboratory, clinic, health centre or similar premises required for the provision of services under the Health Act, 1947to 1970.

10 (2) The Minister may give to a Health Board such direction as he thinks fit in relation to the provision or maintenance of any premises provided and maintained under subsection (1) and in relation to the arrangements for providing services therein, and the Health Board shall comply with any such direction.

11 (3) A Health Board may and, if directed by the Minister, shall discontinue the provision and maintenance of any premises provided and maintained by it under subsection (1).

12 (4) A Health Board shall not exercise its powers under subsection (3) in relation to the discontinuance of the provision and maintenance of a hospital, sanitorium or home save with the consent of the Minister.

13 (5) The Minister shall not give a direction under subsection (3) in relation to the discontinuance of the provision and maintenance of a hospital, sanitorium or home save after having caused a local enquiry to be held into the desirability of the discontinuance.

14 (6) Where, on a discontinuance under subsection (3), a person who held an office under the Health Board in the premises affected is offered a similar office by the Board, the aforementioned office shall, for the purpose of the superannuation of that person, be deemed not to have been abolished."

15 Mr. Liston on behalf of the Plaintiffs contended that this Section did not empower the Minister to give the direction which he...