T. v The Chief Executive Officer of the Nursing and Midwifery Board of Ireland

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 02 October 2020
• Neutral Citation: [2020] IEHC 491
• Docket Number: [Record No. 2018/1068 JR]
• Court: High Court
• Date: 02 October 2020

BETWEEN

T.

APPLICANT

AND

THE CHIEF EXECUTIVE OFFICER OF THE NURSING AND MIDWIFERY BOARD OF IRELAND, THE FITNESS TO PRACTICE COMMITTEE OF THE NURSING AND MIDWIFERY BOARD OF IRELAND

AND

THE NURSING AND MIDWIFERY BOARD OF IRELAND

RESPONDENTS

[2020] IEHC 491

Barr J.

[Record No. 2018/1068 JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Professional misconduct – Erasure – Applicant seeking certiorari of a report issued by the second respondent – Whether the second respondent acted in breach of the applicant’s constitutional right to fair procedures

Facts: The applicant was a qualified psychiatric nurse. In judicial review proceedings, he sought certiorari of a report issued by the second respondent, the Fitness to Practice Committee (the FPC), on 11th October 2018, wherein the Committee found him guilty of professional misconduct and went on to make a recommendation that the appropriate sanction which should be imposed by the third respondent, the Nursing and Midwifery Board of Ireland, was the sanction of erasure. The applicant did not object to the findings of professional misconduct, due to the fact that they were based upon certain admissions that were made by him before the committee on Day 10 of its hearings. However, he objected to the report, and in particular to the recommendation of the committee in relation to sanction, due to the fact that certain documents were placed before the committee during its deliberations, which the applicant maintained were in breach of an express agreement which he had reached with the first respondent as to what evidence would be admitted before the committee in relation to the admissions that had been made by him. He further argued that by having regard to the challenged statements without his having had an opportunity to challenge the makers of the statements, the FPC acted in breach of his constitutional right to fair procedures. The applicant also alleged that the report of the second respondent was bad in law, because it did not deal with an offer that had been made on his behalf to give an irrevocable undertaking not to take his name off the inactive register of nurses, in lieu of sanction. The applicant maintained that the second respondent did not deal with that issue at all and in particular did not give any reasons why that offer had been rejected. On both of these grounds, the applicant maintained that the committee’s report should be struck down.

Held by the High Court (Barr J) that as the court could not exclude the possibility that the FPC had regard to all of the documentation before it, including the challenged documentation, when the applicant had not had an opportunity to challenge that evidence, the court must grant certiorari of the FPC report dated 11th October, 2018. The court was satisfied that having regard to the expertise of the FPC and to the nature of the issue that remained to be determined, being the issue of the recommendation of a sanction, it was appropriate to remit the matter back to the FPC with appropriate directions, so that they could furnish a fresh report and make a recommendation of sanction to the Board.

Barr J held that the court would make an order quashing the report of the FPC dated 11th October, 2018; it would remit the matter back to the FPC for fresh consideration based exclusively on the agreed evidence submitted to it on Days 10 and 11 of the hearings and thereafter the matter could proceed for consideration by the Board, which could consider the fresh FPC report and the agreed evidence that was presented to the FPC.

Application granted.

JUDGMENT of Mr. Justice Barr delivered electronically on the 2nd day of October, 2020

Introduction

1 The applicant is a qualified psychiatric nurse. In these judicial review proceedings, he is seeking certiorari of a report issued by the Fitness to Practice Committee, being the second named respondent, on 11th October 2018, wherein the Committee found him guilty of professional misconduct and went on to make a recommendation that the appropriate sanction which should be imposed by the third named respondent, was the sanction of erasure.

2 The applicant does not object to the findings of professional misconduct, due to the fact that they were based upon certain admissions that were made by him before the committee on Day 10 of its hearings. However, he objects to the report, and in particular to the recommendation of the committee in relation to sanction, due to the fact that certain documents were placed before the committee during its deliberations, which the applicant maintains were in breach of an express agreement which he had reached with the first named respondent as to what evidence would be admitted before the committee in relation to the admissions that had been made by him. He further argues that by having regard to the challenged statements without his having had an opportunity to challenge the makers of the statements, the Fitness to Practice Committee acted in breach of his constitutional right to fair procedures.

3 The applicant also alleges that the report of the second named respondent is bad in law, because it did not deal with an offer that had been made on his behalf to give an irrevocable undertaking not to take his name off the inactive register of nurses, in lieu of sanction. The applicant maintains that the second named respondent did not deal with that issue at all and in particular did not give any reasons why that offer had been rejected. On both of these grounds, the applicant maintains that the committee's report should be struck down.

The Inquiry Procedure under the Nurses Act 1985

4 The Nurses Act, 1985 was repealed and replaced by the Nurses and Midwives Act, 2011.

5 The inquiry, which is the subject matter of these proceedings, was held under the Nurses Act, 1985. Part V of the Act deals with the holding of inquiries into whether a nurse is fit to continue practising in that profession. It will be helpful to set out a brief description of the inquiry procedure that is provided for under the Act.

6 The Board, or any person, may apply to the Fitness to Practice Committee for an inquiry into the fitness of a nurse to practice nursing on the grounds of alleged professional misconduct, or alleged unfitness to engage in such practice by reason of physical or mental disability. Where the Committee, after consideration of the application, is either of the opinion that there is a prima facie case for holding the inquiry, or has been given a direction by the Board to hold the inquiry, the Committee must proceed to hold the inquiry.

7 The CEO, or any other person with the leave of the Committee, presents to the Committee the evidence of alleged professional misconduct or unfitness to practice by reason of physical or mental disability, as the case may be. In this case that was done by the CEO. On completion of the inquiry, the Committee must prepare a report to include its findings specifying the nature of the application for an inquiry and the evidence laid before it and any other matters in relation to the nurse which it may think fit to report. In its report, the committee invariably makes a recommendation as to what sanction should be imposed by the Board.

8 The Committee's report is then sent to the Board and the function of the Board is confined to the issues of confirmation of the Committee's report and, if the report is confirmed, a decision as to what sanction, if any, should be imposed on the nurse.

General Background

9 The applicant is a psychiatric nurse. In 2007 he was employed by the HSE to provide psychiatric services in the form of counselling at an outpatients' mental health facility.

10 In the period 2007 – 2008, the applicant provided counselling to a female service user (hereinafter referred to as “the complainant”) for an anxiety disorder. She was aged approximately 30/32 years at the time.

11 In or about 2008 the applicant moved to another part of the country to take up a different position of employment. He continued to have contact with the complainant after his therapeutic engagement with her had ceased.

12 On 18th June, 2009, the complainant made an allegation to a counsellor at a different mental health facility, that she had had a relationship, including having sexual relations, with the applicant between March 2007 and June 2009. The person to whom the statement was made reported the matter to her supervisor, who in turn reported it to the HSE. They carried out an inquiry which resulted in a Trust in Care report being issued on 15th December, 2011.

13 That report made a number of adverse findings against the applicant in relation to the therapeutic care that he had given to the complainant. Although it appears that some of the more serious complaints made by the complainant of there being a sexual relationship between her and the applicant, may not have been upheld in that report. However, the Court has not seen a full copy of this report.

14 The Trust in Care report was furnished to the Nursing Board, which is now the third named respondent, on 31st January, 2012. On 9th February, 2012 the Board determined that it would become the applicant for an inquiry pursuant to s. 38 of the Nurses Act, 1985 into alleged professional misconduct and alleged unfitness to engage in the practice of nursing by reason of physical and/or mental disability on the part of the applicant. On the same date, the Board also determined that it would issue proceedings before the High Court seeking the suspension of the applicant from the register of nurses. In the course of an application brought before the High Court pursuant to s. 44 of the Act, to have the applicant suspended from the register, he gave an undertaking that he would not attempt to have his name taken off the inactive register of nurses. That undertaking was given by the applicant in April, 2012. He had been on...