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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> O'Ceallaigh v. Fitness To Practice Committee [1998] IESC 60; [1999] 2 IR 552 (11th December, 1998) URL: http://www.bailii.org/ie/cases/IESC/1998/60.html Cite as: [1999] 2 IR 552, [1998] IESC 60 |
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1. This
is an appeal brought by Miss Ann O Ceallaigh from the judgment and order of the
High Court (McCracken J.) of 22nd May, 1998, refusing her the declaration which
she had sought, in judicial review proceedings, that she was entitled to have
certain persons present at a meeting of the Fitness to Practise Committee of an
Bord Altranais (the Nursing Board - hereinafter “the Board”) to
consider a complaint that had been brought against her in her capacity as nurse
and midwife.
3. The
scheme of the relevant provisions of the Nurses Act, 1985, with which we are
concerned in this present litigation is similar to that contained in
4. The
Fitness to Practise Committee (“the Committee”) is the Committee
established by the Board under s. 13(2) of the Act. The Committee is to carry
out its functions under Part V of the Act, which contains the provisions
governing “fitness to practice” and includes the provisions
governing the conduct of an inquiry into allegations of professional
misconduct. Section 38(1) of the Act provides that the Board or any other
person may apply to the Committee for an inquiry into the fitness of a nurse to
practise nursing on the grounds of:-
5. The
Committee must first examine the complaint and, if it finds that there is not
sufficient cause to warrant the holding of an inquiry, it must so inform the
Board. The Board, having considered the matter, may decide to take no further
action or it may direct the Committee to hold an inquiry.
6. If
the Committee has decided that there is a
prima
facie
case
for holding an inquiry, or if it has been directed by the Board to hold an
inquiry, then it should proceed to do so.
7. The
Chief Executive Officer of the Board, or any other person with the leave of the
Committee, shall present to the Committee the evidence of alleged professional
misconduct or unfitness to practise and, on completion of the inquiry, the
Committee shall embody its findings in a report to the Board specifying therein
the nature of the application and the evidence laid before it and any other
matters in relation to the nurse which it may think fit to report including its
opinion, having regard to the contents of the report, as to (1) the alleged
professional misconduct of the nurse, or (2) the fitness or otherwise of that
nurse to engage in the practise of nursing.... as the case may be.
8. The
Committee has the powers, rights and privileges vested in the High Court or a
judge thereof in respect of the enforcement of the attendances of witnesses and
their examination on oath or otherwise and the compelling of the production of
documents. A witness giving evidence before the Committee is entitled to the
same immunities and privileges as a witness before the High Court (s. 3 8(6)).
9. On
a finding of professional misconduct, the Board may decide that the name of
such person should be erased from the registrar of nurses or that, during a
period of specified duration, the registration of the person named in
10. The
outcome of the decision by the Board, consequent upon an inquiry by the
Committee, is subject to a right to apply to the High Court for cancellation of
the decision (s. 39(3)) and the High Court has power to cancel the decision, or
declare that it was proper for the Board to make a decision under the section,
or give such other directions to the Board as the Court thinks proper.
11. It
was established by this Court in the
Barry
case
that a Fitness to Practise Committee, such as this, is entitled to hold its
proceedings in public or in private. The only point at issue in that case,
however, was whether the public could be admitted and whether there could be
resultant publicity concerning the proceedings of the relevant Committee. This
Court held that the Committee had a full discretion and was entitled to order
that the proceedings should be held in camera. However, it should be noticed
that the complaints made in that case by a number of young women, former
patients of the doctor in question, concerned matters of a most intimate nature
concerning their
12. The
question raised in these proceedings is different. The matter for resolution
here is whether it is permissible to exclude persons whose presence it is said
by the person accused is necessary to aid in the defence to the allegations made.
13. Just
as there was no express reference in the legislation in question in the
Barry
case
to an entitlement of the Committee to hold the proceedings in private rather
than in public, so the relevant sections that we consider here are silent on
the question for resolution in this litigation. Indeed, there is no express
entitlement to the person accused to be able to give evidence herself in
defence of any allegations made, or to call witnesses. Of course, if the
legislation is to be given a constitutional interpretation - which it must,
since it is presumed to be constitutional - these entitlements must be implied.
15. In
the course of his affidavit, Mr. Colm MacGeehin, solicitor for the appellant,
set forth that counsel required the assistance of Mary Cronk and Professor
Leslie Page present at the hearing of the inquiry in assessing and
16. As
regards the research sociologist, Miss Maire O’Connor, it is said that
she specialised in maternity care since 1984. It is desired that she should be
present as well, although it is not contemplated that she will give evidence.
It is said that she had done a national survey on home births in Ireland
commissioned by the Department of Health some years ago and that she had done
research on various aspects of midwifery practise and that she would be of
immense assistance in the presentation of the defence.
17. In
the course of her affidavit, Miss Mary H. Gilmartin, Chairperson of the
Committee, deposed at paragraphs 13,14 and 15 of her affidavit as follows:-
18. In
my judgment, since persons are indubitably entitled to give evidence in their
defence, and to call witnesses in defence of a complaint of professional
misconduct (which is the allegation here),
prima
facie,
they
should be entitled to have present at an inquiry at which their conduct is
called in question any person who may assist their defence. This would be
subject, of course, to the orderly conduct of the inquiry. This does not, it
seems to me, breach the “privacy” or “confidential
nature” of the inquiry. Such witnesses would, of course, be expected to
observe due confidentiality and not to relate matters that took place at the
inquiry to any members of the public who were not concerned with the inquiry.
Further, I would leave open the entitlement of the inquiry to have witnesses
excluded in certain circumstances - just as courts do - but, as Miss Hewson
reminded us in her very helpful submission by reference to certain English
authorities, the idea of excluding expert witnesses from any court is rather
exceptional, to say the least. It should be recounted that in England the
practise relating to the exclusion of witnesses from a
court
applies
to an extent which is not current in this jurisdiction but this power to
exclude persons from a court in certain given circumstances is undoubtedly a
jurisdiction that courts possess. Miss Hewson referred us to the dictum of
Arnold P. in
Tomlinson
.v. Tomlinson
[1980] 1 WLR 322 that the power to
19. However,
Miss Hewson builds on that submission to say that really expert witnesses are
in a special category and, in a sense, form part of the “team”
representing the person arraigned and to that extent may be said to
represent” the person.
20. It
is, of course, the case that a person might have lay representatives -that is
clearly permissible under the legislation - but, since I am satisfied that the
three persons named should be entitled to attend as expert witnesses (or, in
the case of Miss O’Connor, as an expert who is there to help in the
presentation of the defence case) then I do not need to address the question of
whether the three also constitute “representatives” within the
meaning of the subsection in question.
21. It
seems to me that the provision of a transcript is not a solution. I think it
would also have the effect of prolonging the inquiry and that, on the whole, it
is far more desirable that the expert witnesses should be present. Further, in
the
22. So,
in a word, I do not believe that the presence of these expert people will
trench at all on the essential privacy and confidentiality of the proceedings
before the inquiry. They should be allowed attend and give such assistance as
is required from time to time.
24. The
issues in this case relate to the powers of the Fitness to Practise Committee
in relation to the holding of an inquiry pursuant to the terms of
25. This
case deals only with the first ground. The procedure to establish unfitness is
the same whichever ground is alleged.
26. Where,
as here, an inquiry is to be held by the first-named respondent
(“the
Committee”)
the
statutory provisions so far as they are material are as follows:
27. The
scheme of the section is to provide for a disciplinary hearing akin to that of
a hearing in the High Court. To this end the Committee is given power to
enforce the attendance of witnesses, to take their evidence on oath, to compel
the production of documents and where necessary to commit for contempt.
Further, a witness before the Committee is entitled to the same immunities and
privileges as a witness before the High Court.
S.
38
(3), (4), (5) do not include everything that takes place in court such as the
calling of witnesses by the other side and the cross-examination of all
witnesses. These and similar matters must be implied. Otherwise there could
not be fair procedures and the grant of powers equivalent to those of the High
Court would be worthless.
28. The
issue which has arisen relates to the discretion, if any, given to the
Committee as to who it may allow to be present at the inquiry as well
29. The
whole tenor of the section is that what takes place shall not be made public
save with the consent of the nurse concerned unless the allegation is
established.
30. There
is an identical provision in the Medical Practitioners Act, 1978. In
Barry
v. the Medical Council
unreported
decision delivered on 16th December 1997
this
Court held that the provisions of the relevant section required the hearing of
the inquiry to be in private unless the doctor concerned - here the nurse
concerned - requested a hearing in public. In that event the Tribunal had a
discretion whether to hear the matter in public or in private. The present
question did not arise in
Barry’s
case.
31. S.
38(5) prohibits from being made public inter alia “findings of the
Committee on any matter referred to it”. By s. 38(3)(c) the Committee is
required to “embody its findings in a report to the Board specifying
certain matters.” No further use is made in this paragraph of the word
‘findings”. The decision of the Committee is referred to as an
opinion. If the purpose of s. 28(5) was to prevent the whole report from being
made public it would have been simpler for that subsection to so state.
Nevertheless having regard to the fact that the only reference to
“findings” in subsection (3)(c) refers to the contents of the
report which includes the evidence laid before the Committee it seems to me
that the same construction must be placed upon those words.
32. It
is against this background and the obligation for the inquiry to be akin to a
court hearing that the issue in the instant case must be determined. The
section must be read so as to give it its presumed
33. The
consequences of an adverse decision by the Committee are serious. It must
therefore be obvious that the person before the Committee should not be
hampered in any way in their defence to the
34. It
has been submitted on behalf of the Committee that to allow the present
application would result in that hearing ceasing to be private and would
undermine the work of the Committee. I am unable to see how the work of the
Committee could in any way be affected by the number of persons present at the
hearing. So far as privacy is concerned, the
35. A
further submission was to the effect that the experts would be facilitated in
relation to adjournments. The manner in which the submission was put suggested
that even in the midst of cross-examination the Committee would allow an
adjournment to enable counsel to take further instructions or if necessary
would have a hearing on a further date when the witnesses could be recalled.
To admit that much is to my mind an admission that the basic ruling was
unreasonable. Either a ruling is correct or it is incorrect. To seek to
alleviate the inconveniences of a ruling merely reinforces the submission that
it was incorrect. There is a considerable difference between
hearing
the evidence and reading it. There is also a considerable difference in time
span. If you are present,
36. A
further submission set out in an affidavit on behalf of the Committee was to
the effect that it would act in accordance with natural and constitutional
justice and would not allow the applicant to be hampered in her defence.
Submissions in affidavits of that nature are pointless. There is an obligation
on the Committee to act in that manner in any event and nobody is suggesting
that it would not do so. In
Barry
v. the Medical Council
Barrington
J. said in the penultimate paragraph of his judgment as follows:
37. I
agree totally with that conclusion. is in my view a breach of the provisions of
s. 3 8(4). Nevertheless, here the refusal Even if this were not so, there are
also special circumstances which would justify the Court in exercising its
discretion in favour of the applicant. The second-named respondents
(“the
Board”)
regarded
the complaints made against the applicant as being so serious that they
warranted an application in the public interest that the applicant should not
be entitled to practise pending the resolution of the disciplinary proceedings.
It is against that
40. In
the month of December 1997 the Fitness to Practise Committee (the Committee) of
An Bord Altranais proceeded - in apparent conformity with the provisions of
Part V of the Nurses Act 1985 - to hold an inquiry into the fitness of the
Appellant to practice nursing on the grounds of alleged professional misconduct
set out in notice in writing dated the 19th day of December 1997. Under section
38 of the 1985 Act the Committee has a statutory
41. As
in the case of the Medical Practitioners Act 1978, no express provision is made
by the Act as to whether the inquiry should be conducted in public or in
private. However, subsection 5 of section 38 of the Nurses Act 1985 replicates
section 45 subsection 5 of the Medical Practitioners Act by providing as
follows:-
42. In
those circumstances the procedures of the Committee are governed by the
decision of this Court in
Barry
v. The Medical Council & the Fitness to Practise Committee of the Medical
Council
(delivered
on the 16th December 1997)
in
which the Court determined in relation to the medical practitioners that:-
43. The
only other material provisions of section 38, and the limited guidance which it
gives as to the procedure to be adopted by the Committee, is that it vests in
it powers rights and privileges of the High Court or a Judge thereof in respect
of the enforcement of the attendance of witnesses; their examination on oath
and the compelling of the production of documents. It may be significant too to
note the absence of any power in the Committee to protect it procedures from
actions which might have constituted contempt of court if those actions had
taken place in a court of law. Actions in the face of the Committee which would
44. It
is understandable that anyone would be deeply concerned by an allegation of
professional misconduct or of unfitness to continue to practice one’s
chosen career. It is clear that the Appellant’s sense of grievance had
been aggravated by the fact that pending the completion of the inquiry an
application was made to the High Court, first by way of ex parte motion and
subsequently by notice of motion, for orders, which were apparently granted,
restraining the Appellant from practising her profession pending the hearing of
the inquiry. The Plaintiff not only complains that the charges made against her
are unfounded but alleges that they derive from the antipathy of certain
identified members of the medical profession to home births. I draw attention
to these facts as it does appear that the Appellant has approached the inquiry
to be conducted by the Committee with a measure of concern which might be
expected but a degree of suspicion which may require explanation.
45. At
the opening of the inquiry before the Committee on the 9th March 1998 the
Appellant was represented by two senior counsel instructed by Messrs MacGeehin
& Toale Solicitors. Leading Counsel on behalf of Ms O’Ceallaigh asked
that the proceedings of the inquiry be conducted in public. Whilst that issue
was being canvassed the chairperson of the Committee requested that the persons
who had been identified as witnesses should withdraw. That request initiated a
debate as to the status and relevance of those and other witnesses. Having
heard extensive argument analysing both the law and the relevant facts the
chairperson ruled that the proceedings of the Committee on the inquiry would be
held in private. Clearly another tribunal could reach a different conclusion on
the same evidence and argument. On the other hand it would seem to me clear
beyond debate that the decision reached by the
46. Committee
on this issue constituted an entirely rational exercise by the Committee of its
statutory discretion and could not have been impugned on judicial review. The
proceedings initiated for that purpose were not successful in the first
instance nor pursued subsequently.
47. On
the second day of the hearing by the Committee (the 11 th March 1998)
applications were made by Counsel on behalf of the Appellant to permit the
attendance at the inquiry of certain specified witnesses. The nature and extent
of the application made in that behalf is summarised in the affidavit of Mr
MacGeehan dated the 13th March 1998 (at paragraph 3) as follows:-
48. The
same paragraph of the affidavit then goes on to record the Appellant’s
attitude to the proceedings of the Committee in the following terms:-
49. Whilst
the Appellant subsequently persisted only in the application insofar as it
related to the witnesses identified at (i) and (ii) above, it is important to
see the nature and extent of the application made to the Committee on the 11th
March 1998.
50. If
the Committee had acceded to the Appellant’s application in full this
would have amounted to reversing the decision made two days earlier to hold the
proceedings in private. In the circumstances it seems to me that the Committee
were required to explore the interest and involvement of the persons whose
presence was sought on behalf of the Appellant and more particularly how the
need for fair procedures could be reconciled with the then unchallenged ruling
of the Committee. In any event the matter was discussed at considerable length
before the Committee, whose ruling on the application is set out at page 66 of
the transcript of the 11th March 1998 and which I would quote in full as
follows:-
51. It
was against that background that a further application was made for a leave to
apply by way of an application for judicial review. The application on that
behalf was made on the 13th March 1998 when the relief sought was as follows:-
53. The
application was grounded, as already mentioned, on the affidavit of Mr Colm
MacGeehin in which he identified two of the witnesses as Ms Mary Cronk and the
other is Professor Leslie Page and set out their impressive qualifications. It
is significant to note that he identified them as “Two world-renowned
expert witnesses “. In his affidavit Mr MacGeehin explained the
importance of the witnesses in the following terms:-
54. That
and other arguments were rejected by Mr Justice McCracken for the reasons set
out in his judgment dated the 22nd May 1998. It is from that judgment and the
order made thereon that the Appellant appeals to this Court.
55. The
first argument made on behalf of the Appellant was that Ms Cronk and Professor
Page were and each of them was a
“person
representing”
the Appellant within the meaning and for the purposes of section 38(4) of the
1985 Act and as such manifestly entitled to remain at and participate in the
Inquiry.
56. I
am satisfied that the category of persons who may represent a nurse at an
inquiry conducted by the Fitness to Practise Committee is not limited to
members of either of the legal professions. In legislation of this nature
“representation” would extend to trade union representatives and to
persons holding relevant medical qualifications. Indeed, it may well extend to
friends or advisors possessing no professional qualifications. However, the
essence of representation as used in that subsection is to identify a person
who presents or conducts the case on behalf of his client (or friend) not the
party himself or herself and not a witness be he or she expert or otherwise
whose function would be to bear witness to the truth irrespective by which
party he or she was requested to attend.
57. In
my view the argument made that Ms Cronk or Professor Page
“represented”
the Appellant is wholly unreal and inconsistent with the stated facts of the
matter. At the commencement of the Inquiry “the representation” was
clearly and properly identified as being by two distinguished Senior Counsel
instructed by Messrs MacGeehin & Toale. Ms Cronk and Professor Page have
been consistently and no doubt correctly identified as distinguished
independent witnesses. Perhaps in other circumstances they could represent the
Appellant at
58. The
second argument advanced on behalf of the Appellant was that she was entitled
to have her defence conducted by Counsel on her behalf in such manner as she
and they chose provided that the Inquiry was not thereby disrupted.
59. I
do not doubt that in any proceedings before a tribunal be it judicial or
administrative the parties have a wide discretion as to how they should present
their case. It is equally clear, however, that the same tribunals have, and
must exercise, a reasonable measure of control over their own procedures to
ensure that the business thereof is completed efficiently and more particularly
in accordance with the requirements of natural and constitutional justice.
60. Any
court of law (and a fortiori any administrative tribunal or officer) should be
extremely hesitant in disallowing or even questioning the procedure or course
which Counsel proposes to adopt in the discharge of his professional functions.
Accordingly, I would have been very reluctant in the present case to exclude
from a hearing any witnesses, the presence of whom Counsel asserted was
material to the proper conduct thereof. However, in the present case the very
range of persons whom the Appellant sought to have present in the course of the
Inquiry forced the Committee into some review as to the relevance of those
persons so that their presence could be considered in the context of the
decision made by the Committee that its proceedings were to be conducted in
private.
61. The
analysis of the facts relied upon by the Appellant’s Counsel for
admitting the six categories of persons proposed by them were dealt with by the
Chairman of the Committee and the ruling which she made on that submission
which has already been quoted in full. The Appellant was satisfied to accept
the ruling insofar as it related to four of those categories and the issue on
the application for judicial review was confined to the remaining two. Counsel
did explain the particular reasons why he felt the presence of the two expert
witnesses and the specialist advisor - as I am sure Ms O’Connor may be
described - throughout the hearing was essential to enable Counsel to conduct
the defence in the manner which was described in the written submissions as
follows:-
63. This
argument was rejected by the learned trial Judge. As a matter of procedure he
pointed out that the proposal seemed “to envisage the prospect of the
experts sitting beside Counsel and, in effect, having a consultation with
Counsel and directing what questions to ask in the middle of the hearing
64. He
pointed out, correctly, that this is not a course of conduct which would be
permitted in a court of law. This aspect of the argument appears to be based on
the excessive modesty of Counsel. Whilst no member of the Bar in his capacity
as an advocate holds himself out as an expert in anything but law, the
requirements of the profession require him to master highly technical matters
of medicine, accountancy, engineering and science for the purpose of particular
cases and it is daily demonstrated that this is a task which Counsel achieve
with apparent, if deceptive, ease.
65. The
argument that the deprivation of Counsel of immediate access in the manner
proposed to his expert witnesses or advisors would be contrary to natural
justice and requires careful consideration. It is an important argument but
must be considered in the context not merely of the undertaking of the Board as
expressly given by the Chairman of the Committee to make available all relevant
documentation and the transcripts of the evidence of expert witnesses and to
facilitate the Appellant which such adjournment as may be required from
66. In
those circumstances I cannot foresee any possibility of injustice to the
Appellant as a result of the exclusion of the expert witnesses and the
specialist advisor. I can readily understand the Appellant’s contention
that this is not a “
sensible”
procedure. It may be that other courses could have been adopted. Indeed it may
be, with the benefit of hindsight, that it would have been preferable and more
realistic to conduct the entire proceedings in public but that is not the
issue. The Committee made decisions and rulings within their discretion and the
issue is whether they are rational not whether they are ideal or even
appropriate.
67. A
particular argument made to the effect that the expert witnesses were not or
might not be experienced in digesting the transcripts of evidence as opposed to
seeing a witness and hearing him or her give evidence seems to me to be as
offensive as it is unsound. Witnesses who are not merely highly qualified but
also expert must be, by definition, capable of studying, comprehending and
assimilating reports and a wide range of recorded evidence or information of a
technical or expert nature.
68. The
third argument made on behalf of the Appellant was that the refusal to admit Ms
O’Connor, Cronk and Page to the hearing was irrational and perverse
because it was made on the grounds of “preserving confidentiality”
which, having regard to the offer of the transcripts of evidence of other
witnesses established that
“the
true reason for excluding them cannot have been to preserve confidentiality;
there was some other reason which the Tribunal concealed by proffering the
entirely implausible ground of confidentiality”.
69. The
observation quoted in the written submissions made on behalf of the Appellant
does not appear to support this very serious challenge to the integrity of the
Committee. Furthermore, the contention appears to be based on a misstatement of
the grounds on which the application to permit the attendance of the named
witnesses was rejected. In the written submissions of the Appellant it is
stated that the grounds for rejection were for “preserving
confidentiality” whereas the Chairman of the Committee, Ms Mary
Gilmartin, in her affidavit had explained the grounds in the following terms:-
70. Whilst
I can accept once again that there is room for a difference of opinion as to
what course should be adopted and what rulings should be made it seems to me
that the rationale for the decision of the Committee is entirely logical and
wholly sustainable provided that it does not cause any injustice to the
Appellant in the presentation of her case and for the reasons already mentioned
I am satisfied that no such danger exists.
71. Lastly,
I feel I should deal with an argument which was made by reference to what is in
effect a practice direction made in England pursuant to Order 38 Rule 1 of the
UK Rules of the Supreme Court. The direction is quoted in the context of Order
38/1/6 of those Rules and is in the following terms:-
72. This
passage is quoted for the important observation of the then President of the
Family Division and the guidance it gave in relation to witness exclusion orders.
73. Assuming,
without deciding, that a similar or indeed any rule, as to the exclusion of
witnesses is permissible and exists in this jurisdiction I do not believe it
would be of relevance in the present case. There is no question of the experts
in the present case being excluded because their evidence might be influenced
or they might influence the evidence of others as a result of something seen or
heard in the course of the Inquiry. The problem with which the Committee was
concerned was different. They were, as Ms Gilmartin emphasised in the passage
quoted form her affidavit, seeking to maintain the privacy of the Inquiry: not
the purity of the evidence tendered to it. The distinction between the two
situations and the consequences which may follow are clearly demonstrated by
the provisions of the Australian Family Law Act 1975 which is quoted in the Law
Reform Consultation Paper in Family Courts as having the following effect:-