O'Shea v CORU
| Jurisdiction | Ireland |
| Judge | Ms. Justice Ní Raifeartaigh |
| Judgment Date | 31 July 2019 |
| Neutral Citation | [2019] IEHC 773 |
| Docket Number | [RECORD NO. 2018/449 MCA] |
| Court | High Court |
| Date | 31 July 2019 |
[2019] IEHC 773
THE HIGH COURT
Ms. Justice Ní Raifeartaigh
[RECORD NO. 2018/449 MCA]
Disciplinary sanction – Bias – Legal representation – Applicant seeking to cancel the respondent’s directions imposing a disciplinary sanction upon her – Whether the respondent’s investigation and decision-making process was flawed and biased
Facts: The applicant, Ms O’Shea, a social worker, applied to the High Court pursuant to s. 69 of the Health and Social Care Professionals Act 2005 to cancel the directions of the respondent, the Health and Social Care Professionals Council (CORU), imposing a disciplinary sanction upon her arising from two separate inquiries which had been conducted in respect of two allegations made against her. The first inquiry resulted in a disciplinary sanction of a suspension for 9 months with conditions. The second inquiry imposed a 12 month suspension. The applicant submitted that the whole CORU investigation and decision-making process was flawed and biased. She also submitted that it was unfair that she was not legally represented, stating that she had contacted upwards of 20 solicitors, but that all of them had refused to take her case.
Held by Ní Raifeartaigh J that, from her reading of the transcripts, there was no evidence whatsoever of bias against the applicant on the part of any of the decision-makers within the disciplinary process. Ní Raifeartaigh J held that, regarding the applicant’s complaint about the absence of legal representation, this was a matter in respect of which the Court had no power to provide a remedy. Ní Raifeartaigh J was not persuaded that there was anything wrong with the conclusions reached by any of the decision-making bodies engaged in the process.
Ní Raifeartaigh J held that, in all of the circumstances, she would uphold the decision of CORU.
Reliefs refused.
This case came before me by way of an application by a social worker pursuant to s. 69 of the Health and Social Care Professionals Act, 2005 to cancel the directions of the Health and Social Care Professionals Council imposing a disciplinary sanction upon her arising from two separate inquiries which had been conducted in respect of two allegations made against her. The first inquiry resulted in a disciplinary sanction of a suspension for 9 months with conditions; the second inquiry imposed a 12 month suspension.
The Health and Social Care Professionals Act, 2005 (“the Act of 2005”), as amended, provides for the establishment of the Health and Social Care Professionals Council and of Registration Boards in respect of certain health and social care professions; and for the registration of persons qualifying to use the title of a designated profession as well as the determination of complaints relating to their fitness to practice. The Council, known simply as CORU (which is not an acronym), was established by s. 6 of the Act of 2005. The function of the Social Workers Registration Board is to regulate the health and social care professions. Social work is a designated profession.
Section 50 of the Act of 2005 deals with instances of poor professional performance and any failure of a registered social worker (a “registrant”) to meet the standards of competence that may reasonably be expected of registrants practising that profession. This section also defines professional misconduct and sets out the role of various relevant entities including: the Preliminary Proceedings Committee (or “PPC”); the Professional Conduct Committee (or “PCC”); the Social Workers Registration Board (“the Board); and the Health and Social Care Professionals Council also known as CORU.
Section 3 of the Act of 2005 defines the term “relevant medical disability” as a physical or mental disability (including addiction to alcohol or drugs) which may impair a registrant's ability to practice that profession or a particular aspect thereof.
Section 53(1) of the Act of 2005 provides that as soon as practicable after receiving a complaint, the Council shall refer the complaint to a PPC for its opinion on whether there is sufficient cause to warrant further action being taken in relation to the complaint. This is subject to certain exceptions, irrelevant to the present case, where the Council itself is required to act immediately to cancel the registration.
Section 56(1) states that where the PPC is of the view that there is sufficient cause to warrant further action in relation to a complaint, it must refer it to mediation or a committee of inquiry.
Section 58 sets out that a committee of inquiry is obliged to hear and determine the complaint (“shall hear a complaint”). Provision is made as to when the complaint should be heard in public and when in private. Section 59 provides for all the powers, rights and privileges that are vested in the High Court regarding the attendance of witnesses, examining witnesses on oath or otherwise and compelling the production of records; the Court may receive evidence orally, on affidavit or by video live or recorded.
Section 63 provides that on completing an inquiry into a complaint, a committee of inquiry shall make a written report on its findings to the Council, specifying the complaint, the evidence and its findings. Upon receiving the report, the Council shall either dismiss the complaint or request the registration board to recommend an appropriate sanction in accordance with s.64.
The registration board must then make a recommendation of a sanction within 30 days pursuant to section 65.
Section 66 sets out that the Council shall, after considering the committee's report and any recommendation made by the registration board concerned, direct the board to impose on the registrant one or more than one disciplinary sanction specified in the direction.
Section 69 states that a registrant affected by a direction to impose a disciplinary sanction (other than admonishment or censure) may apply to the Court for an order cancelling the direction. At the hearing of the application, the Court may consider any evidence adduced or argument made, whether or not adduced or made to a committee of inquiry. After hearing the application, the Court may make any order that it considers appropriate, including an order cancelling, confirming or modifying the direction, and give to the Council or the registration board concerned any direction that the Court considers appropriate. As noted earlier, this is the provision pursuant to which the applicant brings the present application to the Court.
The first complaint made against the applicant Ms. O'Shea
A complaint was made about the applicant on 15th April, 2015 (“the first complaint” or “complaint number one”) by Mr. Gerard Brophy of Tusla to CORU. The complaint was that the applicant had breached the Children First Guidelines by failing (between 1st January, 2015 and 14th September, 2016) to disclose the identity of two people alleged by her to be employees of the HSE or Tusla who had engaged in or were engaging in the abuse of an identified child; which failure was alleged to constitute a failure as a registrant to meet the standards of competency that may reasonably be expected of registrants practicing the profession of social work.
The Preliminary Proceedings Committee (“the PPC”) considered the complaint of Mr. Gerard Brophy during a meeting on 15th September, 2016 and was of the opinion that there was sufficient cause to warrant further action being taken. The PPC sent it to the Professional Conduct Committee (“the PCC”) for an inquiry on the ground of professional misconduct, poor professional performance, and relevant medical disability.
A significant amount of correspondence then followed as between the applicant and the respondent's solicitors. By emails dated 22nd and 24th October, 2016, the applicant requested additional documentation for the purposes of the inquiry. By letter dated 27th October, 2016, the respondent responded and indicated that if there was any documentation that the applicant required for her defence, she could apply to the PCC for a summons for the production of records; she was invited to make this application in writing or in person.
First case management hearing
On 7th February, 2017, the PCC met for the purposes of a case management hearing during which the application for certain production summonses was due to be dealt with. The applicant failed to appear; in fact, she did not appear at any of the hearings (although she did engage in extensive correspondence with them throughout the process). I should perhaps explain that the case management hearings (of which there were quite a number) were conducted by three Committee members, advised by a legal assessor (invariably a Senior Counsel). Also in attendance on each occasion was a legal team for the Registrar and a representative of CORU. The PCC refused the production summonses sought by applicant but said that she was a at liberty to make a further application if she could demonstrate that the documents sought were relevant and necessary. I have read the transcript of this case management hearing and it is apparent from the transcript that this option was left open to Ms. O'Shea.
Notice of Inquiry in respect of the first complaint
A Notice of Inquiry dated 1st June, 2017 relating to the first complaint was served on the applicant by registered post and email on 2nd June, 2017. The Notice of Inquiry is a formal document which sets out the type of hearing that would take place and what allegations would be considered. These were stated to be as follows; -
“That you, being a registered Social Worker employed...
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