High Court of Ireland Decisions

1. The Applicant is a registered nurse and a domiciliary midwife in private practice. As such she comes within the jurisdiction of the Respondent, which is a body established by the Nurses' Act, 1985 for the purpose, as stated in Section 6 of the Act, of promoting high standards of professional education and training and professional conduct among nurses. To this end, the Respondent, as required by Section 13(2) of the Act, established a Fitness to Practice Committee. The functions of this Committee are set out in Part V of the Act, and in particular Section 38 provides:-

2. The ultimate sanction against a nurse is, as set out in Section 39 of the Act, that after receiving the report from the Fitness to Practice Committee, the Respondent may decide that the name of the nurse should be erased from the Register, or that the registration should not have effect for a specified time. If such a decision is made, the person to which it relates may apply to the High Court within twenty-one days to cancel the decision.

3. Four complaints were received by the Respondent relating to alleged professional misconduct by the Applicant. These were as follows:-

4. An inquiry has now commenced in relation to the first complaint, and stands adjourned pending a decision as to whether the Applicant is entitled to have expert witnesses present at the hearing of the inquiry. In relation to the other three complaints, no inquiry has yet commenced, and the only decisions that have been taken are pursuant to Section 38(3) that there is a prima facie case for holding an inquiry.

5. There was a specially convened meeting of the Respondent held on 31st July, 1997 at which it was resolved that it was in the public interest to make an application to the High Court for an Order that during a period to be specified in the Order the registration of the name of the Applicant in the Register should not have effect. An application was made at a Vacation sitting of the High Court on 1st August, 1997, following which it was ordered by the President of the High Court:-

6. It was further provided that the Applicant would be a liberty to apply to set aside or vary the Order on twenty-four hours notice in writing to the Respondent.

7. The matter came before the Court again on 13th August, 1997, in the course of which the Respondent sought an undertaking as to damages against the Applicant, which was refused, and the Order of 1st August was varied, it being ordered:-

8. This alteration only prevented the Applicant from practising as a midwife, but did not prevent her from practising as a nurse in any other speciality or as a general nurse.

9. The matter came before the Court again on 2nd and 3rd October, 1997, and following a hearing Mr. Justice Smyth varied the Order of 13th August by allowing the Applicant to provide midwifery services to certain named patients.

10. On 17th December, 1997 the matter again came before the Court on a Motion of the Applicant. Mr. Justice Kelly refused to discharge the Order of 3rd October, 1997, but added certain further names to the list of patients who could be attended by the Applicant. These Orders still remain in force.

11. The Applicant's submissions in relation to the Section 44 procedure come under two headings. Firstly, it is submitted that, before such proceedings can be instituted, the Respondent must be "satisfied" that it is in the public interest to do so, and that it could not be so satisfied without making reasonable enquiries, and in particular making enquiries from the Applicant herself. The second argument, which is somewhat related to the first argument, is that the procedure followed by the Applicant is in breach of the principle of audi alteram partem, namely, that the Applicant was entitled as of right to be given reasonable advance notice of the consideration by the Respondent of making this application, and should have been given an opportunity to present her side of the case.

12. The Respondent's primary answer to these submissions is that the effect of granting the relief sought would be to challenge the decision of the President of the High Court and of Mr. Justice Smyth and Mr. Justice Kelly, and that they had obviously decided that it was in the public interest to make an Order pursuant to Section 44. Put very shortly, their case is that, as the application for the Order succeeded, therefore the decision to make the application must have been correct. They also say that the only way in which the Section 44 Order could be challenged would be within those proceedings, by using the provision in the Order giving liberty to apply.

13. It is quite clear that if the Applicant were to succeed in relation to the Section 44 proceedings, the Orders made in those proceedings would still remain valid and in force, and the Applicant would still stand suspended from the Register of Midwives. The Applicant has been forced to acknowledge this, but says that the various declarations sought would entitle her to damages for breach of her constitutional rights. I have no doubt that the correct forum in which these arguments should have been made was within the Section 44 proceedings. On 29th September, 1997 the Applicant, in the Section 44 proceedings, brought a Notice of Motion seeking that the proceedings be dismissed on the grounds, inter alia:-

14. This Notice of Motion was considered by the Court and on 17th December, 1997 Mr. Justice Kelly specifically ordered:-

15. The Applicant's arguments in relation to the Section 44 proceedings have, therefore, already been determined in the course of those proceedings, which is where they ought to have been determined, and it is not open to the Applicant to come back to the High Court with the same issues by way of Judicial Review.

16. I should add that, even if I were wrong in this, I find it virtually impossible to see how the Applicant could be entitled to damages. She is suspended from the Register, not be the Respondent, but by the High Court, and any damages or loss which she has suffered must flow from the fact that she has been so suspended. Therefore, the Applicant could not obtain any real relief in these proceedings, and in effect the argument is moot. Under those circumstances, I would in any event exercise my discretion, which exists in all Judicial Review proceedings of this nature, and refuse relief to the Applicant.

17. The Applicant's case with regard to this procedure only concerns the last three complaints made against her. Indeed, she argues that the proper procedures were followed in relation to the first complaint, in that she was notified of the complaint and asked for comments before there was a decision to set up an inquiry. I think it should be said at the outset, however, that the proceedings are somewhat misconceived in relation to complaints Nos. 3 and 4. What is being sought is a declaration that the decision of the Respondent to refer any of the three cases to its Fitness to Practice Committee for the purpose of an inquiry under Section 38 of the Act is unlawful and void. In fact, the Respondent did not refer either cases 3 or 4 to the Fitness to Practice Committee. In those cases a direct request for an inquiry was made by the Matron concerned to the Fitness to Practice Committee, and under Section 38(1) this application is to be considered by the Fitness to Practice Committee and not by the Respondent. Having said that, however, I would in any event propose to deal with the application on its merits.

18. The Applicant argues firstly that the decision to hold an inquiry without notice to her is contrary to the practice of the Respondent, and she points to the fact that she was in fact given notice and asked for her comments in respect of the first complaint. I have to say that the Respondents have not given any satisfactory explanation as to why they did not notify her of the last three complaints, but they do deny that it is their settled practice to do so.

19. The Applicant also relies again on the principles of audi alteram partem, and argues that a decision of this nature should not be taken without consultation with the Applicant and without the Applicant having an opportunity to put forward her case. A number of authorities have been quoted in support of this proposition. One of these, namely, Ainsworth v. Criminal Justice Commission (1991-1992) 175 C.L.R. in my view has no relevance to these proceedings, as it concerned the procedure to be followed by what was in effect a tribunal set up by Parliament. The second case is the rather unusual and political case of Lewis v. Heffer (1978) 1 W.L.R. 1061. This case concerned a dispute within the Labour party in England, and challenged decisions of the National Executive Committee of the Labour Party to suspend certain persons pending the results of an inquiry. The Court of Appeal held that natural justice did not apply to such a decision since this was a holding operation pending the inquiry, and Jeffrey Lane L.J. said at page 1078:-

20. The Applicant here argues that her livelihood and reputation were at stake at the stage of the decision to hold the inquiry. However, at that time she had in fact been suspended under Section 44, and the decision to hold the inquiry did not make any real difference to her situation. Indeed, that decision in itself has no effect on the livelihood or reputation of the Applicant, and in my view, the comments in Lewis v. Heffer apply very much to the Applicant in the present case.

21. A similar approach was taken by the Supreme Court in Scariff v. Taylor and Others (1996) I IR 242, which concerned the preliminary decision to hold a court martial. In that case Denham J. said at page 262:-

22. In the present case, the procedure followed is governed by the provisions of Section 38 of the Act. Subsection (3) provides that where an application for an inquiry is made and the Fitness to Practice Committee is of opinion there is a prima facie case for holding the inquiry, it then shall proceed to hold the inquiry, but at that stage the provisions of subsection (4) come into being, and the person who is the subject of the inquiry must be given notice of the evidence proposed to be considered at the inquiry, and is entitled to be represented at the inquiry. Thus, before any decision as to whether the complaint should be upheld is made, the Applicant has the right to know the evidence to be given against her, and the right to put forward her arguments and be represented. I think the analogy of the position of the Director of Public Prosecutions, as put forward by Mrs. Justice Denham, is correct. The Director of Public Prosecutions does not, and is under no obligation to, consult a person who may be going to be charged with an offence. It is only after that person has been charged that they become entitled to know the nature of the evidence against them, and entitled to put forward their arguments. In my view, therefore, there has been no breach of fair procedures or failure to provide natural justice in the decision to proceed with the inquiries.

23. I should finally say that the proposition as originally put is, in my view, more or less unstatable. It is suggested that before deciding to seek an inquiry from the Fitness to Practice Committee, the Applicant should be entitled to be heard. I think the facts of this case show the fallacy of that argument. Clearly it could not be said that either the Master who made the first complaint or the Matron who made the third and fourth complaints had any obligation to notify the Applicant that they were going to seek an inquiry under Section 38(1). That being so, I cannot see how it could be said that the Respondent could be under any such obligation, as all that the Fitness to Practice Committee are being asked to do is to consider whether there was a prima facie case.

24. I would also point out that an analogy can be drawn with these very proceedings. The Applicant applied for leave to issue Judicial Review proceedings without notice to the Respondent, and without giving the Respondent any opportunity to be heard. That is the procedure laid down in the Superior Court Rules for Judicial Review proceedings, other than those under the planning legislation, and it becomes a matter for the Judge, on hearing the ex parte application of the applicant, to decide whether there is a prima facie case. It is frequently necessary to have procedures of this kind to filter out unstatable cases, and that is a preliminary step before the potential respondent is put on any risk at all.

25. I am satisfied there has not been any breach of natural justice or of the principle of audi alteram partem in relation to the Section 38 procedures in the present case.

26. Accordingly, I will dismiss this application.