Fennelly v. Midland Health Board [1996] IEHC 38 (6th December, 1996)

1. The first named Plaintiff, Mr. Fennelly, is one of eight male co-Plaintiffs all of whom are or were psychiatric nurses employed by the Defendant, the Midland Health Board in St. Fintan's Psychiatric Hospital, Portlaoise. Two have taken early retirement. They each claim that they were and are employed to look after male patients only. They rely on Section 265 (1) of the Mental Treatment Act, 1945 (the "1945 Act") which provides:-

4. An interlocutory injunction was granted to the Plaintiffs on the 9th March 1992 restraining the Defendant from requiring the Plaintiffs to work in or about the personal custody or restraint of any female patient.

5. Mr. Fennelly, whose circumstances are representative of his co-Plaintiffs, was employed in St. Fintan's Hospital by the Defendant for twenty two years. He was appointed to the permanent post of trainee psychiatric nurse (male) by letter dated the 19th October, 1973. Enclosed with the letter of appointment was a sheet with "Qualifications and Particulars of Office" for his information.

8. Until 1989 he worked with male patients exclusively. He was rostered to work in the rehabilitation unit (a mixed unit) in 1989. He refused, was suspended and then did work there for a year. In 1990 he was rostered to work in the assessment unit (also a mixed unit). He wrote on the 18th March, 1990 to the Assistant Chief Nursing Officer asking to be reassigned. He was not successful.

9. On the 25th February, 1991 he wrote to the Chief Nursing Officer (C.N.O.) requesting rostering away from the rehabilitation integrated ward. He was told in reply by the C.N.O. on the 28th February, 1991 that the deployment of nurses was the prerogative of the C.N.O. and was based on professional judgment acting in the interest of patient care and service needs. He was told that he could not opt out of the arrangements and would be rostered accordingly.

1 The Plenary Summons was issued on the 24th July, 1991 followed by the interim injunction in March, 1992. The reason he gave in evidence for refusing to work in the integrated wards was that he felt it would offend his modesty and that of the female patient. He would be taking them to the toilet, restraining them and changing their clothing. He had a fear of allegations of sexual assault.

10. Dr. Liam Hanefy the former Resident Medical Superintendent (R.M.S.) from 1978 to 1995 said that as the mental health service evolved it was felt that the hospital milieu should resemble the home situation i.e. both sexes should mix as part of the therapeutic process. He explained that in integrated wards the dormitory areas are separate and the integration of patients is during the day in communal work and at meal times. He estimated 10% of acute patients at some time become so disturbed as to need restraint and seclusion, particularly in the Assessment ward. They are obliged to keep a strict record of restraint and seclusion.

11. Dr. Ronald Augustine, the current R.M.S., also stated that it was important for patients to function as full members in the community. They had to change the social circumstances in the hospital so that men and women met each other and learned to get on and cope. He said the R.M.S. is responsible for the medical treatment of all patients and for their well being and safe custody. He said if someone is professionally trained they should treat challenging behaviour in a clinical way.

12. Evidence about the organisation of the hospital was given by Patrick Smith, the C.N.O. There are five wards in St. Fintan's Hospital, one exclusively female, one exclusively male and three mixed or integrated wards - the Rehabilitation ward, the Assessment unit and the Admission unit. There is no male nurse in the female ward and there are male and female nurses in the male ward. In the mixed patient wards there are male and female nurses.

13. Due to a change in thinking in the Psychiatric Services, integrated wards were first introduced in late 1985 to prepare individuals for discharge into their own communities. The Rehabilitation unit opened in 1985 and the Assessment unit in 1988. Male and female nurses were employed because of male and female patients. The two segregated wards, male and female, are psychogeriatric wards, where the average age is in the mid-seventies. The Rehabilitation ward has 30 patients able to leave the ward and go into the grounds. They are free to move about although a doctor or nurse might say not to leave the ward on a particular day.

14. In the Assessment ward or unit people are admitted as acute or recurrent patients, generally of short duration. How long they remain, depends on the opinion of the psychiatrist. The ward is generally locked because of the acute cases.

15. In certain cases it may be necessary to recommend special nursing if an individual required more attention or if a patient was transferred temporarily to a general hospital. Special nursing is one to one and the duration depends on the doctor's decision. It is generally reviewed every 24 hours. It is not a management decision. To the knowledge of Mr. Smith, a male nurse had not been required to give special nursing to a female patient. However, he did say it could have happened.

16. Following the repeal of Section 17(2)(c) and (d) of the Employment Equality Act, 1977 by the European Communities (Employment Equality) Regulations, 1982 (S.I. 302 of 1982), Mr. Smith believed he could deploy male nurses into wards with female patients. He said that while he could roster male and female nurses to a ward, during the day people are sent off to deal with different matters. It could happen that there would be two male or two female nurses left there. It is for the ward manager to say who is to go on errands. From

8 a.m. to 8.30 p.m. three are rostered and from 8.30 p.m. to 8 a.m. two are rostered. Some are off at 6 p.m. Due to the complexities of the rostering system over a fourteen day period, it might happen occasionally that only male nurses are rostered on to a ward. Night duty lasts twelve weeks. People look to do it and they try to facilitate them.

17. Under the old system of promotion there were two streams, male and female. Promotion depended on seniority. Those streams have now disappeared. Promotion is now on merit following interview. To be considered for promotion to deputy nursing officer or nursing officer, the nurse would be expected to work with mixed patients. He could not recall any specific complaint of a sexual nature being investigated.

18. The personnel officer at St. Fintan's, Mr. Lawrence Bair, gave evidence that he understood it was illegal to make distinctions between male and female nurses after the enactment of S.I. 302 of 1982 which repealed Section 17(2)(c) and (d) of the Employment Equality Act, 1977. It precluded recruitment, selection or assignment based on gender.

19. Mr. Gerald Barry, an official of the Local Government Statutory Negotiating Board, (head of the health division), gave evidence about the Psychiatric Nurses Forum which started in 1980 and lasted for five years (although the Plaintiffs claim its Report was rejected). The Forum was concerned with methods of recruitment of psychiatric nurses and promotion and assignment. He said that the upshot of the Forum was that the method of promoting psychiatric nurses based on seniority changed to promotion based on merit by way of interview. The method of recruiting changed. It was no longer from a training school for psychiatric nurses but from staff nurses. He said it was no longer possible to give effect to Section 265 because of Equality legislation.

Article 1.1 "The purpose of this Directive is to put into effect in the Member States the principle of equal treatment for men and women as regards access to employment, including promotion, and to vocational training and as regards working conditions and on the conditions referred to in paragraph 2, social security. This principle is hereinafter referred to as the principle of equal treatment".

Article 2.2. "This Directive shall be without prejudice to the right of Member States to exclude from its field of application those occupational activities and where appropriate the training leading thereto, for which, by reason of their nature or the context in which they are carried out, the sex of the worker constitutes a determining factor".

(b) any provisions contrary to the principle of equal treatment which are included in collective agreements, individual contracts of employment, internal rules of undertakings or in rules governing the independent occupations and professions shall be, or may be declared, null and void or may be amended;

(c) those laws, regulations and administrative provisions, contrary to the principle of equal treatment when the concern for protection which originally inspired them is no longer well-founded shall be revised; and that where similar provisions are included in collective agreements, labour and management shall be requested to undertake the desired revision".

Article 6 "Member States shall introduce into their national systems such measures as are necessary to enable all persons who consider themselves wronged by failure to apply to them the principle of equal treatment within the meaning of Articles 3, 4 and 5 to pursue their claims by judicial process after possible recourse to other competent authorities".

21. However, as regards the first part of Article 3(2)(c) and the first part of Article 5(2)(c) Member States shall carry out a first examination and if necessary a first revision of the laws, regulations and administrative provisions referred to therein within four years of notification of this Directive".

Article 9.2 . "Member States shall periodically assess the occupational activities referred to in Article 2(2) in order to decide in the light of social developments, whether there is justification for maintaining the exclusions concerned. They shall notify the Commission of the results of this assessment.

(c) where an establishment or institution is confined (either wholly or partly) to persons of one sex requiring special care supervision or treatment and the employment of persons of that sex is related to either the character of the establishment or institution or the type of care, supervision or treatment provided in it,

23. It is common case that Section 265(1) has not been expressly repealed. In considering the interpretation to be put on Section 265(1) Mr. Gaffney for the M.H.B urged that it should be construed as referring to special nursing. I think this is putting too specialised a meaning on what is in essence a general provision. It does not refer to the care of patients. It refers to custody and restraint. A strict interpretation would preclude a male R.M.S. from being employed to look after female patients as one of the duties of an R.M.S is to be responsible for the medical treatment of all patients in the hospital and their well-being and safe custody (see Article 13(2)(i) of the Mental Hospital (Officers and Servants) Order, 1946) (S.I. 203 of 1946). I am sure that such an interpretation would not be justified. It seems to me that Section 265(1) does not preclude a male nurse from being employed in connection with the care, medical or otherwise, of a female patient. Article 33(2) of S.I. 203 of 1946 which sets out the duties of a mental nurse does provide that a male mental nurse should not enter the female departments of the hospital save on the direction of the person in charge. So a male nurse could be directed to enter female departments.

25. The Plaintiffs argue that S. 265 of the Act is still good law as it has not been repealed. The Health Services Act 1981 (S.7) did repeal the 1945 Act but was never brought into operation. In the Government White Paper on a new Mental Health Act published in July 1995 it is stated that the government proposes to repeal S. 265 of the 1945 Act (para. 11.18) saying:-

"It is considered that with the development of modern nursing standards and practice the retention of this provision is unnecessary. The repeal of Section 265 would also remove any uncertainty as to whether or not the Employment Equality Act 1977 as amended supersedes the provisions of the 1945 Act".

26. On the interlocutory application Keane J. took the view that the Courts in the case of modern statutes are slow to suppose the legislature overlooked an express repeal but intended to repeal a section by implication. He held that, bearing in mind that the Courts are slow to do that and bearing in mind that a general Act does not impliedly repeal a more specific Act, Section 265 should apply.

27. However, the question is not so much whether the Employment Equality Act, 1977 as amended, impliedly repealed Section 265, but rather whether there is an effective derogation by the State from the Council Directive 76/207/EEC to support the continued application of Section 265.

In the case of Publico Minstero v. Ratti , (1979) ECR 1629 there was legislation about the labelling of solvents which ought to have been amended to comply with two Council Directives. The E.C.J. considered the legal nature of a Directive and said (commencing at paragraph 22):-

23. It follows that a national court requested by a person who has complied with the provisions of a directive not to apply national provisions incompatible with the directive not incorporated into the internal legal order of a defaulting Member State, must uphold that request if the obligation in question is unconditional and sufficiently precise.

24. Therefore the answer to the first question must be that after the expiration of the period fixed for the implementation of a directive a Member State may not apply its internal law - even if it is provided with penal sanctions - which has not yet been adapted in compliance with the Directive, to a person who has complied with the requirements of the Directive".

"The derogation from the principle of equal treatment which, as stated above, is allowed by Article 2(2) constitutes only an option for the Member States. It is for the competent national court to see whether that option has been exercised in provisions of national law and to construe the content of those provisions. The question whether an individual may rely upon a provision of the directive in order to have a derogation laid down by national legislation set aside arises only if that derogation went beyond the limits of the exceptions permitted by Article 2(2) of the directive.

Paragraph 53. In this context it should be observed first of all that as the court has already stated in its judgments of 10th April, 1984 (Case 14/83 Von Colson and Kamann v. Land Nordrhein - Westfalan (1984) E.C.R. l891 and Case 79/83 Harz v. Deutsche Tradax G.m.b.H. (1984) E.C.R. 1921, the Member States' obligation under a directive to achieve the result envisaged by that directive and their duty under Article 5 of the Treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of Member States, including, for matters within their jurisdiction, the Courts. It follows that in applying national law, and in particular the provisions of national legislation specifically introduced in order to implement Directive No. 76/207 national courts are required to interpret their national law in the light of the wording and the purpose of the Directive in order to achieve the result referred to in the third paragraph of Article 189 of the EEC Treaty. It is therefore for the Industrial Tribunal to interpret the provisions of the Sex Discrimination Order and in particular Article 53(1) thereof in the light of the provisions of the Directive, as interpreted above in order to give it its full effect."

29. This case is unusual in that individual Plaintiffs are seeking to uphold discriminatory provisions against a public body. It is those private individuals which are seeking to take advantage of the failure of the State specifically to repeal S. 265.

30. In my opinion Section 265 is discriminatory. Once the derogation contained in Section 17(d) of the Employment Equality Act, 1977 which was permitted by Article 2.2 of Directive 76/207/EEC, was repealed in 1981, there was no justification for the continuation of Section 265 in domestic law. As stated in the Johnson case, the obligation to achieve the result envisaged by a Directive and to take all appropriate measures is binding on all authorities of the Member State including the Courts. The Court is required to interpret national law in the light of the wording and purpose of the directive. Therefore in my opinion Section 265 ceased to have any application in domestic law once the derogation contained in Section 17 of the Employment Equality Act, 1977 was repealed. In the hierarchy of legislation the Directive takes precedence over domestic law.

31. It cannot make any difference that it is individual Plaintiffs who are seeking to uphold the discriminatory provision and it is a public body which claims it no longer applies. If the situation were reversed, the Court would have to hold the section is discriminatory and has no application. The same law must apply in both cases.

33. However, their duties are set out in Article 33 of the Mental Hospitals (Officers and Servants) Order, 1946 (S.I. 203 of 1946). This Article sets out the duties of male and female mental nurses. They are identical except for the provision in sub paragraph 25 already mentioned. However, where male nurses are directed to enter the female departments of the hospital, it means there is no difference between the duties of male and female nurses.

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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Fennelly v. Midland Health Board [1996] IEHC 38 (6th December, 1996) URL: http://www.bailii.org/ie/cases/IEHC/1996/38.html Cite as: [1996] IEHC 38

High Court of Ireland Decisions

Fennelly v. Midland Health Board [1996] IEHC 38 (6th December, 1996)