A Social Worker v Coru

• Jurisdiction: Ireland
• Judge: Ms Justice Irvine
• Judgment Date: 17 September 2021
• Neutral Citation: [2021] IEHC 756
• Docket Number: 2020/69 MCA
• Court: High Court

In the Matter of Section 69 of the Health and Social Care Professionals Act 2005 (As Amended)

Between

A Social Worker

Applicant

and

Coru

Respondent

[2021] IEHC 756

2020/69 MCA

THE HIGH COURT

Judgment of Ms Justice Irvine, President of the High Court. delivered the 17 day of September, 2021

1 This is an application brought pursuant to s. 69 of the Health and Social Care Professionals Act 2005 (as amended) in which the applicant seeks to appeal against the cancellation of her registration as a social worker, which decision was communicated to her in writing on 3rd February 2020.

2 The matter first came before the Court, pursuant to s. 60 of the Act on 2nd February 2016, on which date the applicant's registration was temporarily suspended.

3 Before I discuss the background of the main application herein, I intend to briefly outline what has occurred in relation to two preliminary matters – firstly the ruling the Court delivered on 14th June 2021 in relation to a final peremptory adjournment of this matter to the 19th July 2021 and secondly a ruling I made on 19th July 2021 in relation to the anonymity of proceedings.

Court Ruling on final adjournment

4 On the 14th June 2021, this matter was scheduled to proceed by remote hearing. However, the Court was then in possession of an application made by the applicant for an adjournment of her appeal.

5 In considering the application for an adjournment, the Court took into account the procedural history of the matter, set out hereunder in slightly more detail than is customary, due to the fact that central to the applicant's contention is that she hasn't been afforded fair opportunity to be heard throughout this process. I therefore consider it necessary to outline the manner in which the applicant has been dealt with by the High Court and the opportunities to participate which have been afforded to her.

6 The applicant, by Notice of Motion dated 28th February 2020, appealed to this Court under section 69 of the Health and Social Care Professionals Act 2005 against the respondent's decision to cancel her registration as a social worker, which decision was made by the Health and Social Care Professionals Council (the Council”) on 31st January 2020. Following the delivery of a replying affidavit on 7th October 2020 the appeal was scheduled for hearing on the 18th day of January 2021.

7 In correspondence sent to the Court via email, the applicant applied for an adjournment of her appeal which had been listed for hearing on the following dates: 30 March 2020, 27 April 2020, 15 June 2020, 12 October 2020, 2 November 2020, 30 November 2020, 18 January 2021 and 22 March 2021. The reasons offered in the various letters sent by email included the Covid restrictions, a need for more time to prepare and the applicant's attempts to secure legal aid. Further reasons were advanced in correspondence dated 10th June 2021 and these included averments relating to her insolvency, the fact that she was awaiting a decision from an appeal to the Legal Aid Board and the fact that there are two outstanding criminal matters she had to deal with, in relation to which no further details were offered which might have assisted the Court in understanding their relevance.

8 The applicant had effectively sought the indefinite adjournment of her appeal, for the reasons she identified, rather than an adjournment to any specific date. Her correspondence was shared with the respondent who objected to the application, as per its email dated the 10th June.

9 The Court considered the application for adjournment and outlined the principal reasons for refusing the request:

• a. The applicant gave no indication as to when she would be in a position to proceed with her appeal. This the Court considered was wholly unsatisfactory in circumstances where the tight statutory timeframes provided for in section 69 and section 70 of the Act make clear that all appeals from any decision of the Council should be dealt with expeditiously, as should any application seeking to confirm a sanction proposed by the Council;

• b. The appeal had already been adjourned on eight occasions at the applicant's request;

• c. The fact that the applicant might be insolvent and going through the bankruptcy process did not afford her the right to the adjournment she sought;

• d. She has no entitlement to legal representation and her rights under article 40 of the Constitution, which require that she be treated equally before the law, do not entitle her to legal representation. Many unrepresented parties pursue litigation without representation;

• e. Insofar as the applicant relied upon the fact that she has appealed the decision of the Legal Aid Board to refuse her legal representation, she put no evidence before the Court to establish the date upon which she had appealed that refusal or as to when a decision on her appeal might be expected. The Court also noted that she had applied for legal aid in early 2020 and her application was refused on 9th October 2020.

• f. Insofar as the applicant sought to rely upon some outstanding criminal investigations which she stated might impact upon her appeal, she did not explain the nature of these investigations, nor how they might invalidate the findings made by the Professional Practice Committee or the resolution of the Council that her name be erased from the register of social workers. The Court also noted that the Inquiry before the Professional Practice Committee had been adjourned for a period in excess of one year to allow a criminal complaint made by the complainant against the applicant and a complaint by the applicant against the complainant be concluded. The applicant has not explained any nexus between any ongoing claimed criminal enquiries and the disciplinary process the subject matter of the appeal. Also, these were not mentioned in her affidavit grounding her appeal; and finally

• g. It was in the public interest that the within disciplinary process which commenced in 2015 and had led to her suspension by the High Court on 2nd February 2016 be brought to a conclusion.

10 Notwithstanding the foregoing, the Court was satisfied on that occasion that the applicant should be afforded one final peremptory adjournment of her appeal for a period of five weeks (until the 19th of July). This period was provided to the applicant so that she might prepare to present her own appeal in light of the Court's rejection of her application to postpone her appeal until such time as she might obtain legal representation and/or any outstanding criminal investigations in which she is involved have been completed.

Preliminary Application relating to anonymity

11 The matter then proceeded, and the Court conducted the hearing remotely on 19th July 2021. Initially the Court had received correspondence from the applicant indicating that she would not be in attendance of the remote hearing. However, notwithstanding this correspondence the applicant logged into the remote hearing and participated fully in the proceedings, in the course of which she made her own submissions to the court and countered those made by the respondent. As an preliminary matter, the Court heard submissions from the parties in relation to the reporting of this matter, the respondent having requested that the parties' identities be anonymised.

12 An application made on behalf of the respondent sought the following relief:

• a. That the witnesses in the inquiry would be anonymised; and

• b. That direction be given that nothing would be published connected with the appeal which might lead to those named in the proceedings being identified.

13 The reasons offered by the respondent in support of the application made were, in essence, that the reputation and good name of the witnesses stood to suffer serious damage if the proceedings were capable of identifying them, particularly one person (who I shall refer to as Mr. A) who was accused of sexual abuse by the applicant. The applicant made it clear to the Court in oral submission and also by email dated 15th July 2021 that she intended to waive her anonymity and that she would favour the public naming of the man who she has accused of sexually abusing her. She also notified the Court that she intends to publish the details of the abuse which she alleges was perpetrated by Mr A. in a book which she is currently writing.

14 The respondent herein did not seek to have the entire hearing in camera, but given the nature of the interlocutory application, the Court exercised caution and heard the preliminary application relating to publication in camera.

15 The Court considered the reputational damage which the publication of unproven allegations of the nature involved in this case could have, and also considered the importance that justice be administered in public.

16 In the case of Medical Council v T.M. [2017] IEHC 548, Kelly P. considered whether the High Court had power under the Medical Practitioners Act 2007 (the Act) to hear an application under s.76 of the Act otherwise than in public. In that regard he said that “…there is no express or implied power conferred by the Act for a s.76 application to be heard otherwise than in public” but that:

“In accordance with the decision of the Supreme Court in the Gilchrist case there is a common law power vested in the court to conduct such a hearing otherwise than in public provided that the circumstances are appropriate and that the conditions identified by the Supreme Court are met.”

17 The Gilchrist principles referred to are those set out by O'Donnell J. at para 45 in Gilchrist v Sunday Newspapers Ltd [2017] IESC 18, [2017] 2 IR 284:

• “(i) The Article 34.1 requirement of administration of justice in public is a fundamental constitutional value of great importance.

• (ii) Article 34.1 itself recognises however that there may be exceptions to that...