State (Keller), The v Galway County Council and Another

• Jurisdiction: Ireland
• Judgment Date: 22 June 1958
• Date: 22 June 1958
• Court: High Court

The State (Keller) v. Galway County Council and Another

THE STATE (at the Prosecution of MICHAEL KELLER)

and

CHARLES F. McCONN and THE COUNTY COUNCIL OF THE COUNTY OF GALWAY, and in the Matter of the COURTS OF JUSTICE ACTS, 1924—1953, and In the Matter of Section 50 of the HEALTH ACT, 1953, and an Application for a Disability Allowance under the said Act

Public health - Maintenance allowance for disabled persons - Opinion to be formed by Chief Medical Officer - Opinion formed after consideration of matters outside the scope of his duty - Examination by Assistant Medical Officer - Report by Assistant Medical Officer to Chief Medical Officer - Mandamus - Health Act, 1953 (No. 26 of 1953), s. 50 - Disabled Persons (Maintenance Allowances) Regulations, 1954 (S. I., No. 207 of 1954),Articles 4, 5 - Health (Duties of Officers) Order, 1949 (S. I., No. 128 of1949).

Mandamus.

On the 2nd March, 1956, the prosecutor applied for and obtained a conditional order of mandamus directed to both respondents to hear and determine in accordance with law his application for a maintenance allowance under s. 50 of the Health Act, 1953. Cause was shown on behalf of both respondents as to why the conditional order should not be made absolute, and the prosecutor moved that the conditional order should be made absolute notwithstanding the cause shown.

The material facts as set out in the affidavits filed on behalf of the parties appear from the judgment of Davitt P.post.

The prosecutor applied to the Galway County Council for the payment of a maintenance allowance under s. 50 of the Health Act, 1953. Before the Council were liable to pay any such allowance, the Chief Medical Officer of the Council had to form an opinion in accordance with clause 4 of the Disabled Persons (Maintenance Allowances) Regulations, 1954.

The Chief Medical Officer formed his opinion on the application of the prosecutor, as a result of which the Council refused the application. The Chief Medical Officer did so upon the basis of a report by, and discussion with, an Assistant Medical Officer of the Council who had interviewed the prosecutor. He expressed his opinion in a note upon the bottom of the prosecutor's application form which showed that he had taken into consideration matters which clause 4 of the relevant Regulations did not require him to consider.

The prosecutor sought to have his application reconsidered and enclosed photographs of his deformity. His application was reconsidered. The Chief Medical Officer did not alter his opinion and the refusal of the prosecutor's application by the Council remained.

The prosecutor obtained a conditional order of mandamus directed to both respondents to hear and determine his application. On motion to have the conditional order made absolute notwithstanding cause shown, it was

Held, by Davitt P.:

1. The Chief Medical Officer was not under any duty personally to make a medical examination of the prosecutor before forming his opinion;

2. The Chief Medical Officer, in taking into consideration, when forming his opinion, matters which were outside the scope of his duty, had declined to carry out his duty according to law;

3. The Council, knowing from the note made by the Chief Medical Officer upon the application form of the prosecutor, that he had considered matters outside the scope of his duty, failed, by not instructing him to disregard these matters, to carry out their duty to the prosecutor;

4. The appropriate form of the conditional order should have directed the respondent to consider and deal with the application according to law and would be made absolute in that form.

Cur. adv. vult.

Davitt P.:—

The prosecutor, Michael Keller, is now thirty-six years old. When he was four he met with an accident and sustained a severe injury to his left hip. His present condition as described by Dr. O'Beirne who specialises in orthopaedics is that his left hip joint is destroyed; his pelvis is distorted; his left leg is shortened by nearly six inches, and is bent inwards and completely undeveloped. The muscles of the leg are wasted and there is gross limitation of movement. He has a lump on his left buttock which makes sitting for any length of time uncomfortable. When walking he maintains a twisted posture and when he sits his spine is twisted and his back continuously under strain. He used crutches until about ten years ago, but since then he has had the use of a satisfactory surgical boot and is able to walk and to cycle. He lives in Loughrea with his father who is an old age pensioner in receipt of something over a guinea a week, and his brother who earns £5 or £6 a week. He tried to learn the trade of a barber but after some weeks had to give up as the long periods of standing caused him severe pain in the leg. Apart from this attempt and some domestic work about the house he has never worked and apparently earns nothing.

The Galway County Council is a health authority within the meaning of the Health Acts, 1947 and 1953; and Dr. McConn is its Chief Medical Officer. Dr. Ida Gallagher is an Assistant Medical Officer.

Sect. 50, sub-s. 1, of the Health Act, 1953, provides that a health authority shall, in accordance with regulations to be made by the Minister for Health, make available a service for the training of disabled persons for employment suitable to their condition of health, and for the making of arrangements with employers for placing disabled persons in suitable employment. Sub-sect. 5 provides that a health authority shall in accordance with regulations made by the Minister provide for the payment of maintenance allowances to the persons specified in the following sub-section, viz.:— disabled persons over sixteen years of age who are unable to provide for their own maintenance, and whose relatives are unable to provide maintenance for them. Relatives include the parent of a disabled person and his brother if normally resident with him.

Pursuant to these provisions the Minister made the Disabled Persons (Maintenance Allowances) Regulations, 1954 (S. I., No. 207 of 1954). Articles 4 and 5 of these Regulations are as follows:—

"4. A maintenance allowance shall be payable by a health authority, on application being made to them, to a person (being a person specified in sub-section 6 of section 50 of the Act) who—

• (a) by reason of injury, disease, congenital deformity, or physical or mental illness or defect, which has continued or may reasonably be expected to continue for at least one year from its onset, is in the opinion of the Chief Medical Officer of the health authority substantially handicapped in undertaking work of a kind which, if he were not suffering from that injury, disease, congenital deformity or physical or mental illness or defect, would be suited to his age, experience and qualifications, and

• (b) is not maintained in an institution by or at the expense of a local authority.

  • 5. An application under Article 4 of these Regulations shall be accompanied by a certificate of a registered medical practitioner in the form set out in the Schedule to these Regulations or...