Weldon v Minister for Health & Children and Others

• Jurisdiction: Ireland
• Judge: Kearns P.
• Judgment Date: 10 December 2010
• Neutral Citation: [2010] IEHC 444
• Court: High Court
• Date: 10 December 2010

[2010] IEHC 444

THE HIGH COURT

[No. 559 J.R./2009]

Weldon v Min for Health & Lourdes Hospital Redress Board

JUDICIAL REVIEW

BETWEEN

ANNE WELDON

APPLICANT

AND

MINISTER FOR HEALTH AND CHILDREN

AND

LOURDES HOSPITAL REDRESS BOARD

RESPONDENTS

GOLDBERG v KELLY 397 US 254 93 S CT 1172 35 L ED 2D 572

KIELY v MIN FOR SOCIAL WELFARE 1977 IR 267

O CEALLAIGH v BORD ALTRANAIS 2000 4 IR 54

CRIMINAL ASSETS BUREAU v HUNT 2003 2 IR 168 2003/10/2095

O'FLYNN & O'REGAN v MID-WESTERN HEALTH BOARD & ORS 1991 2 IR 223 1991/5/1098

SLATTERYS LTD v CMSR OF VALUATION & JUDGE DEVALLEY 2001 4 IR 91 2001/23/6146

FINNERTY v MID-WESTERN HEALTH BOARD UNREP CARROLL 5.10.1998 1998/19/7047

SOLAN v DPP & DISTRICT JUSTICE WINE 1989 ILRM 491 1988/10/3025

RSC O. 84 r21(1)

RSC O. 84 r21(2)

DE ROISTE v MIN FOR DEFENCE & ORS 2001 1 IR 190 2001 2 ILRM 241 2001 ELR 33 2001/6/1371

O'DONNELL v DUN LAOGHAIRE CORP 1991 ILRM 301 1990/8/2084

RSC O. 84 r21

JUDICIAL REVIEW

Certiorari

Redress scheme - Compensation - Unnecessary hysterectomies - Eligibility - Planned hysterectomy - Obligation to provide report concluding procedure medically unnecessary - Alleged breach of fair procedures - Failure to apprise applicant of reports commissioned by Board - Audi alterem partem - Delay - Consideration of delay at substantive hearing - Time limit - Discretion of court - Date of knowledge - Onus on applicant to give reasons for delay - Absence of reasonable explanation for delay - Goldberg v Kelly (1970) 397 US 254; Kiely v Minister for Social Welfare [1977] 1 IR 267; O'Ceallaigh v An Bord Altranais [2000] 4 IR 54; Criminal Assets Bureau v Hunt [2003] 2 IR 168; O'Flynn v Mid-Western Health Board [1991] 2 IR 223; Slatterys Ltd v Commissioner of Valuation [2001] 4 IR 91; Finnerty v Western Health Board (Unrep, Carroll J, 5/10/1998); Solan v Director of Public Prosecutions [1989] ILRM 491; De Roiste v Minister for Defence [2001] 1 IR 190 and O'Donnell v Dun Laoghaire Corporation [1991] 1 ILRM 301 considered - Rules of the Superior Courts 1986 (SI 15/1986), O 84, r 21 - Relief refused (2009/559JR - Kearns P - 10/12/2010) [2010] IEHC 444

Weldon v Minister for Health and Children

Facts: The applicant was given leave to obtain an order of certiorari to quash a decision of the respondent that inter alia she was not eligible to be considered for redress under the Lourdes Hospital Redress Scheme. The refusal by the respondent Board was based upon two expert medical reports. It was submitted that the applicant should have been apprised of the reports and that there had been a breach of the principle audi alteram partem. The applicant alleged that she qualified for the Scheme otherwise and that fair procedures ought to have applied. The question arose as to whether the applicant was guilty of delay so as to disentitle her to relief.

Held by Kearns P. that the contention of the applicant that she was not afforded fair procedures was without merit in this instance. The applicant was given notice of the intention to make a determination and was given ample opportunity to make her case. The applicant failed to take the steps which would have made her eligible to be considered by the Board. The respondent had successfully established delay which precluded the applicant from obtaining relief. The applicant had to fail in her application and as there was undue delay in applying for judicial review, the relief sought would be refused.

Reporter: E.F.

1 JUDGMENT of Kearns P. delivered the 10th day of December, 2010

2 By order of Peart J. dated the 26 ^th May, 2009, the applicant was granted leave to apply for judicial review of a decision taken by the second named respondent which had the effect of refusing the applicant compensation under the Lourdes Hospital Redress Scheme. The reliefs sought by the applicant include the following:-

3 (i) An order of certiorari quashing the decision of the respondents dated the 28 ^th August, 2008, which stated that the applicant was 'not eligible to be considered for redress' under the Lourdes Hospital Redress Scheme.

4 (ii) An order of mandamus requiring the respondents to consider all the evidence in the applicant's application under the Lourdes Hospital Redress Scheme including the evidence of Mr. Roger Clements, and to determine what redress is appropriate for the applicant.

5 (iii) A declaration that the respondents have failed to consider the applicant's application under the Lourdes Hospital Redress Scheme in a manner that is lawful or in accordance with the applicant's right to fair procedures.

6 (iv) A declaration that the second named respondent's refusal and/or failure to consider medical evidence other than that commissioned by itself in the applicant's case gives rise to a reasonable apprehension that the respondents have acted, and continue to act, in a manner that is biased and/or unfair.

7 (v) If and insofar as it is required, an Order granting an extension of time.

8 (vi) Such further or other order as to this Honourable Court shall seem meet.

9 (vii) An order providing for costs.

FACTUAL BACKGROUND

10 These proceedings arise out of the decision of the second named respondent, the Lourdes Hospital Redress Board (hereinafter referred to as "the Board"), in relation to a claim for redress under the Lourdes Hospital Redress Scheme made to the Board by the applicant.

11 The applicant had a planned hysterectomy in 1990 during which a bilateral oophorectomy was also carried out by Dr. Michael Neary at Our Lady of Lourdes Hospital, in Drogheda, Co. Louth.

12 The first named respondent, the Minister for Health and Children, introduced the Lourdes Hospital Redress Scheme (hereinafter referred to as "the Scheme") following the report of the Lourdes Hospital Inquiry. The Board was established as an independent redress board to determine applications and direct ex gratia payments to be made by the Minister in accordance with the Scheme. The object of the Scheme was to provide compensation to those women who underwent unnecessary obstetric hysterectomies and bilateral oophorectomies carried out by Dr. Michael Neary during the period 1974 to 1998.

13 The following is a chronology of the relevant events in relation to this application.

14 · On the 18 ^th June, 1990, the applicant underwent a planned hysterectomy at Our Lady of Lourdes Hospital in Drogheda. Dr. Michael Neary carried out this hysterectomy in addition to a bilateral oophorectomy.

15 · On the 18 ^th April, 2007, the first-named respondent established the Scheme to be administered by the Board.

16 · On the 25 ^th July, 2007, the applicant responded to a newspaper advertisement, placed by the Health Service Executive advertising the Scheme and calling on possible claimants to contact the Board, and applied for redress under the Scheme.

17 · The solicitor for the Board wrote to the applicant by letter dated the 2 ^nd August, 2007, acknowledging receipt of her application and seeking the applicant's relevant records and a copy of the required gynaecologist's report which would advise that the operation was medically unwarranted. It appears that the applicant sought copies of her medical records from Our Lady of Lourdes Hospital and was informed that, save for a histology report (which was provided to the applicant by the hospital), her records could not be located.

18 · The solicitor for the Board wrote again to the applicant on the 5 ^th September, 2007, informing the applicant that in order to consider her application a gynaecologist's report was required advising that the operation giving rise to the application was medically unwarranted.

19 · The applicant was further informed in conversation with the solicitor for the Board on both the 16 ^th January, 2008, and the 26 ^th February, 2008, that she was required to furnish a medical report stating that the operation of bilateral oophorectomy was unnecessary. The applicant was informed that the Board had written to the hospital to try to obtain hospital records that were not held on the applicant's chart and that the Board required a copy of the applicant's G.P. records.

20 · Notwithstanding the letters of the 2 ^nd August, 2007, the 5 ^th September, 2007, and the conversations of the 16 ^th January, 2008, and the 26 ^th February, 2008, no medical report was provided by the applicant which stated that the procedures performed on the applicant by Dr. Michael Neary were medically unnecessary. Notwithstanding that the obligation to provide such a report rested upon the applicant, the Board took the step of commissioning its own reports in order to ensure that the applicant's application was not struck out on the basis of her failure to provide such a report or her delay in doing so. The solicitor for the Board informed the applicant that the Board was commissioning these reports and she did not express any disagreement with this course of action. Reports were thus sought and obtained from Professor Wells, professor of gynaecological pathology at the University of Sheffield Medical School, and Mr. James G. Feeney, Professor of Obstetrics and Gynaecology. Both concluded that the hysterectomy and bilateral oophorectomy were medically warranted in the applicant's case due to her extensive endometriosis. · By letter dated the 28 ^th August, 2008, the applicant was informed that her application was refused with the Board deciding that the applicant's case was "not eligible to be considered for redress".

21 · By letter dated the 11 ^th September, 2008, the applicant's solicitor wrote to the Board and requested access to the documents and reports relied upon by it.

22 · By letter dated the 16 ^th September, 2008, the Board replied and enclosed the reports and documents requested. The Board confirmed that their decision was final and that the...