THE HIGH COURT
2003 J.R. 182
Between
NOREEN BRENNAN DONOGHUE
Applicant
AND
THE GALWAY/MAYO INSTITUTE OF TECHNOLOGY AND THE WESTERN HEALTH BOARD
Respondents
JUDGMENT of Mr. Justice Paul Butler delivered 9th day of May, 2003
The applicant is aged forty-five years and she resides in County Sligo with her husband and four children. She holds a diploma in education (speech and drama) and has, until recently, peen employed by the Department of Education as a substitute teacher. In or about October, 2001 she enrolled in a three year nursing diploma course with the first named respondent (hereinafter referred to as "GMIT") which course was run by the second named respondent (hereinafter referred to as "the Health Board") which has overall responsibility for-the education and training of student-nurses for registration with An Bord Altranais. The course partly consists of academic tuition--,which is carried out at GMIT as well as a number of clinical placements for each year of the course. The Health Board is responsible for these clinical placements which are carried out at various hospitals arm other locations -owned-and-operated by the Health Board. At the conclusion of each such placement the Health Board assesses each student by way of a proficiency assessment. The plaintiff passed the first assessment which took place in January/February 2002 but failed the next assessment which took place, in June/July of that year. She passed the third assessment.

Although the merits of the allegation does not concern these proceedings, by way of background it should be noted that the applicant clearly held a view that she was being bullied by certain people at GMIT and those allegations were being investigated.
As result of the applicant having failed the said clinical placement it was deemed necessary that a "learning plan" be agreed so that she could progress further. A number of efforts were made to set up a meeting with the applicant prior to February, 2003 and the applicant failed to attend such meeting. There is some dispute as to why such meetings did not take-place but the applicant attributes the -same to the fact that she did not wish to meet the people whom she alleged were guilty of bullying her and that she had a broken wrist. In any event, by letter dated 5th February, 2.0-0-3 (sent by registered post) Ms. Josephine Tiernan, Director of Nursing at Mayo--General Hospital, wrote to the plaintiff in the following terns:
"ReAction Plan for Failed Clinical Placement- B block 
Dear Ms. Brennan Donoghue,
I refer to correspondence sent by Mary McTague, Clinical Placement. Co-ordinator and Grainne Glacken, Nurse Tutor, on dates 27'h November and 18'h December, 2002 in which you were invited to attend a meeting to formulate an agreed Action Plan regarding your failed clinical placement on B block- Mayo General Hospital.
I understand that you-have failed to attend two meetings which have been scheduled for 11 th December, 2002 at 16. 00 hours and 7'h January, 2003 at 16.00 hours in the Steam Room at OMIT As you have been already been informed these meetings were intended to formulate an agreed action plan which is an essential part of your progression to becoming a Registered Nurse. Your non attendance causes me great concern and requires immediate action.
I wish to meet you in order to ascertain why you did not attend these meetings. This is a very serious issue which remains -Outstanding and I am requesting your attendance as follows: -
Date: Monday 10`h February.
Time: 14. 00 hours.
Venue: Office of Director of Nursing.
Please confirm your intention to attend this appointment by contacting Mary Dunne, Assistant Staff Officer, ext 2325. Also please note that failure to attend this meeting will result in Mayo General Hospital being unable to provide you with further clinical placements. If you wish to have another person in attendance with this can be facilitated.
Yours sincerely"
This letter was replied to by the Solicitor for the applicant by letter (sent, I understand, by fax) dated 7th February, 2003. That letter explained the applicant's unwillingness to meet with certain (other persons) and- went on in a somewhat ambiguous paragraph to state
"In the event that our client is forced to attend the interview and an alternative interview with alternative personnel is arranged for her she shall have no alternative but to apply to the High Court for an injunction preventing the interview from taking place ".
It is clear from the foregoing that there was a misunderstanding-on the part of the applicant and/or her Solicitor in that they seemed to be refusing to attend the interview on the l()th on the false basis that certain--named persons were to be at that interview and there was, to say the least, room for doubt as to whether they would attend any interview. In any event, on Saturday afternoon the 8th February, 2003 the applicant sent a fax wherein she appeared to agree to attend the interview provided her solicitor was free to do so while expressing the assumption that she would not be free (on the following Monday at 2 p.m.). She did however, go on to ask "can you suggest another date and dine with a realistic allocation of time to arrange for her presence ". That fax does- not appear to have been received until the following Monday morning (the morning on the day upon which the meeting was to take place) and its contents appeared to have been ignored.
By letter dated 28"' of February, 2002 Mr. Tony Canavan, General Manager of Mayo General Hospital, -wrote to the applicant notifying her that Mayo General Hospital would not be in a position- to offer her further clinical placements. He went on to say that -
"I have arrived at this decision because of your failed clinical placement at this hospital (3 June, '02 - 12 July '02) and your failure to address this issue through the instructions provided. GMT have been informed of this decision and will be in contact with you in due course ".
It appears that, if not reversed by arbitration, on appeal, by this Court- or otherwise, the effect of that decision would be to bring an end to the-applicant's studies for her chosen-career.
The applicant seeks an order of certiorari:_ (against the second named respondent) quashing-the said decision.
The first issue that arises is whether the said decision is capable of judicial review. It is strongly argued on behalf of the Health Board that this is a matter of private law that the rights and obligations of all the parties are circumscribed by the provisions of an agreement which was executed by the applicant. I note with interest the said agreement appears to have been signed by the Health Board on the lst May, 2002 and by the applicant on the following day. Both of these dates are long after when it is alleged that- the applicant enrolled. This matter was not argued by either side in the proceedings. The agreement in question contains an acceptance by the applicant of certain conditions and contains provision for arbitration in the event of a dispute.
I have considered the authorities to which I was referred and I am satisfied that the applicant's position' is more akin to that of a trainee Garda and that the impugned decision can be the subject of a judicial review.
I do accept that the Board went to pains to explain to the applicant that the purpose of the meeting was to address the issue of a failed clinical placement and a failure to co-operate in that regard. While it may or may not be described as "the straw that broke the camel's back", the fact remains that it was the applicant's failure to attend the meeting on the 10th. of February last that led to the decision in question. Indeed, the letter of the 5th. of February clearly spelled out what the consequences of such failure would be and the applicant had the benefit of the advice of her Solicitor thereon. While the Solicitor's response to that proposed meeting appears confusing and to be based upon a false premise, the applicant's said communication of the 8th. of February did alter the situation. somewhat in that she took up the offer of having someone present at the meeting and indicated a willingness to attend subject to the availability of that person, her Solicitor, at that time and, in the event of the Solicitor not being available at that time, then at a reasonable alternative time.

While I am not at all satisfied that the applicant has behaved reasonably or that she will ultimately succeed in being able to complete her course, I am satisfied that she was denied fair procedures and natural justice in that, following her said communication of the_ 8th. of February, she was entitled to be
given an opportunity of being heard as to why an alternative meeting should not be arranged before a decision (which effectively would put an end to hopes of a chosen career) was arrived at.

I, therefore, grant an Order quashing the said decision. In doing so, however, I wish to make it clear, that the Health Board is not in any way
precluded from coming to a similar decision in the event of fair procedures being adopted.