Tierney (applicants/ appellants) & Others v North Eastern Health Board
| Jurisdiction | Ireland |
| Judge | Denham J. |
| Judgment Date | 09 July 2010 |
| Neutral Citation | [2010] IESC 43 |
| Court | Supreme Court |
| Docket Number | [Appeal No: 450/2004] |
| Date | 09 July 2010 |
[2010] IESC 43
THE SUPREME COURT
Denham J.
Hardiman J.
O'Donnell J.
and
STATUTORY INTERPRETATION
Construction
Ordinary and natural meaning - Discontinuance of services - Whether Health Service Executive had power to discontinue maternity services at particular hospital - Words and phrases - âÇÿPremises' and âÇÿservices' - McMeal v Minister for [1985] ILRM 616 distinguished - Keane v An Bord Pleanála [1997] 1 IR 184; (N(F) v Minister for Education [1995] 1 IR 409 and Brady v Cavan County Council [1994] 4 IR 99 considered - Health Act 1970 (No 1), ss 5, 38, 52 &62 - Appeal dismissed and title of case amended (450/2004 - SC - 9/7/2010) [2010] IESC 43
Tierney v Health Service Executive
Facts: The issue on appeal was whether the respondent had the power to discontinue maternity services in Monaghan General Hospital and the appropriate construction of s. 38 of the Health Act 1970. The High Court below had refused the application. The respondent argued that the service had not been discontinued but rather suspended and that s. 38 only applied to the discontinuance of the provision and maintenance of premises and not services. It was argued that the power to close a department of a hospital was an implied power.
Held by the Supreme Court per Denham J. that the issue raised for decision was the construction of s. 38 of the Act of 1970, which was a discrete question of law. It was not for a court of law to make social policy as to where maternity services should be provided. It was not in issue in the appeal whether there should be one or two hospitals in Cavan and Monaghan. Statues had to be construed according to their intent. The section upon which the appeal was grounded related to the provision of premises and the discontinuance of premises and not the provision of services. The appeal would fail. The statue did not mandate where the services should be provided. The decisions as to the provision of services were made under the implied powers which the respondent had to provide the service mandated by the Act of 1970. The respondent had the power to close a department in a hospital and did not act ultra vires in making the decision and the appeal would be dismissed.
Reporter: E.F.
The issue on this appeal is whether the North Eastern Health Board had the power to discontinue maternity services at Monaghan General Hospital. It is a question of law, being essentially the construction of s.38 of the Health Act,1970, hereinafter referred to as "the Act of 1970". Before addressing the issue of the construction of the statute, I shall refer to the general background of the case.
Shauna Tierney, Maura Sherlock, Brenda McAnespie and Sharon O'Neill, the applicants/appellants, who are referred to as "the appellants" in this judgment, have brought an appeal against the order of the High Court of the 29th July, 2004, and the High Court judgment dated the 30th July, 2004. The North Eastern Health Board, the respondent, is referred to as "the respondent" in this judgment.
Initially the appellants brought an application by way of judicial review, on a number of grounds, seeking relief by way of declarations and/orcertiorari, submitting that the respondent, in discontinuing the provision of maternity services at Monaghan General Hospital, had acted ultra vires.
The High Court ( Ó Caoimh J.) refused the application. Ó Caoimh J. concluded:-
"With regard to the provision of maternity services, it is clear that the provision in question of such services arise in the context of the general obligations on Health Boards pursuant to the Act of 1970. Furthermore, in the context of s. 62 of the Act of 1970 certain obligations fall on Health Boards to make available without charge medical, surgical and mid-wife services for attendance to the health, in respect of motherhood of women who are persons with full eligibility or persons with limited eligibility. While the obligations in question are clear in this regard, it is to be noted that nowhere in the section is there any indication as to where the provision in question is to take place but is clear that the obligation is to provide such a service. I believe that this obligation must be construed on a rational basis enabling a Health Board to choose where the provision in question will take place as long as the decision that is taken in this regard is not such as to preclude the provision of the service for women residing in any part of its catchment area.
In conclusion I believe that the applicants have not satisfied this Court that the provision of maternity services at Cavan General Hospital is such as to breach any requirement of the Health Act of 1970 and furthermore I am satisfied that the decision in question taken in this case was not one precluded by the terms of s. 38 of the Act of 1970.
Were I to have held that there was an obligation to provide the services in question at Monaghan General Hospital I do not believe that that obligation could be set aside by merely deeming that hospital when taken together with Cavan General Hospital to constitute one hospital."
The appellants have appealed the order and judgment of the High Court. The notice of appeal set out 16 grounds of appeal. However, as counsel for the appellants stated, the Court was asked a question of statutory construction. The essence of the appellants' case was that what the Health Board was providing could not be withdrawn. This proposition was made on the basis of s.38 of the Health Act,1970. Thus the appeal was about the construction of section 38.
In written submissions on behalf of the appellants it was submitted that the learned trial judge erred in identifying the issue in the case. The learned trial judge had stated that the essential issue was whether the respondent was precluded from discontinuing the services in question at Monaghan General Hospital, on either a temporary or other basis. On behalf of the appellants it was submitted that the learned trial judge erred - that the question was not whether the respondent was precluded from discontinuing the services but rather whether it was empowered by statute to suspend or discontinue the services.
Reference was also made to the finding of the learned High Court judge:
"I believe that the [appellants] have not satisfied this Court that the provision of maternity services at Cavan General Hospital is such as to breach any requirement of the Health Act of 1970 and furthermore I am satisfied that the decision in question taken in this case was not one precluded by the terms of s. 38 of the Act of 1970."
It was submitted that this issue had nothing to do with the provision of services at Cavan General Hospital but rather the discontinuance of the provision of the services in question at Monaghan General Hospital. The learned trial judge having rejected the respondent's case that between Cavan and Monaghan there was but one hospital at two sites, it was submitted that whether similar or alternative maternity services were being provided in Cavan General Hospital was not relevant to the appellants' case and should have formed no part of the learned trial judge's deliberation.
"And furthermore I am satisfied that the decision in question taken in this case was not one precluded by the terms of s. 38 of the Act of 1970."
It was submitted that the issues raised had nothing to do with whether there was a breach of the provisions of the Act of 1970 but rather whether the steps taken by the respondent in a discontinuance of the maternity services were duly authorised by the statute.
It was submitted that the relevant provision is s.38 of the Act of 1970. The respondent had relied on s.38(3) of the Act of 1970 and s.3(1)(a) of the Health (Amendment)(No.3) Act,1996 to commence suspension of the maternity services at Monaghan General Hospital. It was submitted that these statutory sections do not give power to the respondent to discontinue the services at the hospital. Indeed, it was submitted that not only is there no power given to the respondent to discontinue hospital services, but that there is a positive obligation to provide such services on a continuous basis. It was submitted that the respondent is bound to provide inpatient and outpatient maternity services under s.62 of the Act of 1970. It was argued that this obligation cannot be fulfilled without maintaining hospitals.
Reliance was placed onMcMeel v. Minister for Health and the North Eastern Health Board [1985] I.L.R.M. 616. It was submitted that notwithstanding that the ratio of the McMeel case relates to the interpretation of s.38(2), that the same principles of law apply in this case. It was submitted that (i) the dicta in McMeel enforce the legislative intent that the respondent be bound for better or worse to provide and maintain hospital services at the hospital; (ii) the positive injunctions in the statute were deliberately provided by the legislature in framing the Act of 1970; (iii) while the Health Act, 1947 expressly provided for the discontinuance of any department in a hospital, there is no such provision in the current statute after the repeal of s.11 of the Act of 1947 by s.1 of the Act of 1970; and (iv) any administrative decision of a statutory authority in order to be valid must fall within the substantive power conferred by the statute, and that there was no such statutory power for the respondent in this case.
In oral submissions Mr. Michael Counihan S.C., counsel for the appellants, stated that...
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