High Court of Ireland Decisions

1. This is a case of some urgency and therefore I propose to deliver judgment ex tempore. It is a case where perhaps a reserved judgment might be appropriate having regard to the evidence that I have heard and the legal submissions that have been made to me but I think in the circumstances I must proceed as a matter of urgency to deliver judgment now and therefore I will deliver it ex tempore.

2. There are two applications before the Court. The first seeks to discharge in its entirety an order made by the Court pursuant to the provisions of section 44 of the Nurses Act of 1985. That section provides as follows:-

3. There is in existence an order of the Court made pursuant to the provisions of section 44 of the Act and the first application seeks to have that order discharged in its entirety.

4. The second application only arises if Miss Ní Cheallaigh is unsuccessful in her first application. In such circumstances she seeks a variation of the order so as to permit her to provide midwifery services to five named individuals. Those named individuals have, at their own request, been joined as notice parties to these proceedings and both evidence and legal submissions have been heard on their behalf

5. In order to understand the application which is before the Court it is necessary to summarise in a short form the factual background against which the application comes before me.

6. Miss Ní Cheallaigh is a registered midwife. She is the subject of four separate complaints which have been made to her regulatory authority, the Nursing Board. Two of those complaints were made by the Master of the National Maternity Hospital The other two were made by the Matron of the Rotunda Hospital. In each case the Fitness to Practice Committee, which is provided for under the terms of the Nurses Act, 1985, has made a determination that these complaints disclose a prima facie case against Miss Ní Cheallaigh. On foot of that determination the Board applied to this Court under section 44 for an order in the terms of that section. That order was applied for and obtained ex parte on the 1st August 1997. It then came before the Court on an inter partes basis on the 13th August 1997. On that date Costello P. ordered as follows:-

7. The order went on to provide that the Summons, which was the grounding document which gave rise to these proceedings, was to stand adjourned for hearing to the list on Monday the 13th October 1997. In fact the matter came on earlier than that and was dealt with by Moriarty J. again on an inter partes basis. He made an order on the 3rd October 1997. By that order he permitted Miss Ní Cheallaigh to be at liberty to provide midwifery services to the second named Respondent namely, Sive O'Neill and also to persons who were listed to the schedule to that order, who were 13 in number. He also ordered that the order made by the President on the 13th August 1997 be varied so as to permit those services to be provided but the injunctive relief contained in the order of the 13th August was directed to continue in its varied form. It is clear therefore that the order which is now before the Court and which is sought to be varied is that of Moriarty J. of the 3rd October 1997.

8. Eight grounds have been advanced by Mr Forde on behalf of Miss Ní Cheallaigh and by Counsel appearing on behalf of the notice parties. These eight grounds are relied upon as a basis for the total discharge of the order made under section 44 of the Act. I will consider each of them in turn.

9. The first is a contention on the part of Miss Ní Cheallaigh that the order in this case was granted ex parte . It is therefore said that I am now considering an application to in effect discharge that order which was made without her having the opportunity to be heard fully in relation to the matter. It is quite true that the original order of the President of the 1st August was undoubtedly made ex parte . But the matter came before the Court on two subsequent occasions. The first was on the 13th August 1997 and the second on the 3rd October 1997. Whatever may be said of the hearing which took place on the 13th August there can be little doubt but that the hearing before Moriarty J. which went on for a period of two days in October, was undoubtedly an inter partes matter where these issues were thrashed out to a very considerable extent. That is the order which is now sought to be discharged. It is manifestly not one which was granted ex parte . It was granted at the end of a two day hearing and it seems to me this point concerning the ex parte nature of the order at present being considered by the Court is not well taken.

10. I move on therefore to the second point which is urged upon me as a basis for discharging the order. It is said that before an application can be made to this Court at all there is a condition precedent provided for in section 44 which must be complied with. It is this. The Board before making an application to the Court must be satisfied that it is in the public interest so to do. That is undoubtedly the case. Absent a determination by the Board that it is in the public interest to make an application to this Court, it is not possible for it to apply. Any order that may be made on a fallacious basis would automatically have to fall if the Court were satisfied that the Board did not satisfy itself that it was in the public interest to make the application.

11. The way in which the matter is put to me is in the form of an interrogatory addressed to me by Mr Forde. He says "how could the Board be satisfied that it was in the public interest to make the application?". He has referred to contraverted factual matters which are deposed to an affidavit in that regard. In fairness he does concede that he cannot ask for a determination of this question at this stage of the proceedings and in that respect he is undoubtedly right.

12. As I am not in a position to make a determination on this issue now, I cannot see that this particular argument can have a great deal of relevance for my consideration of the question of the discharging of the order. I regard this question of whether or not the Board satisfied itself that it was in the public interest to make the application under section 44 as a matter which is very much in contention as between the parties. Further than that I cannot put it or deal with it at this stage.

13. In any event I notice that this is one of the very matters which is raised in the judicial review proceedings which are for hearing in this Court next month. At this stage it is probably appropriate to say that in respect of three of the four complaints which have been levelled against Miss Ní Cheallaigh a judicial review application was successfully made to this Court and those judicial review proceedings are for trial next month. So the high water mark of the consideration which I can give to this argument is to treat it as a matter very much in issue between the parties but not one in respect of which I can make a determination at this stage. So in so far as this is relied upon as a ground for the discharge of the order, the only weight that I can give to it is that it relates to an issue which is in controversy.

14. The third point which Mr Forde has raised is one wherein he contends that there is no real substance in the complaints which have been made against his client. Now this of course relates to the merits. I cannot adjudicate on the merits of these complaints at this stage of the proceedings. From the evidence which has been adduced before me it is abundantly clear that there will be a head-on clash as between the Board and Miss Ní Cheallaigh at the hearing before the Fitness to Practice Committee. I have had opened to me the expert evidence which she proposes to adduce in respect of the complaints against her. It is manifest that there will be very serious controversy between the parties at the Fitness to Practice Committee. But it is that body that is enjoined by statute to determine this issue. It is not for this Court to do so and certainly not for this Court to do so at this stage of the proceedings. I must proceed on the basis that the body which is entrusted with the determination of these matters, namely the Fitness to Practice Committee of the Nursing Board, has already made a determination that a prima facie case exists against Miss Ní Cheallaigh. It may be that she will demonstrate to that Committee that it was wrong in so concluding and that she should be exonerated in respect of all of the complaints. But that is a determination that cannot be made here and now.

15. It seems to me that the views of this Court as expressed by Carroll J. in the case of Phillips v The Medical Council 1992 ILRM 469 are apposite. That Judge said (at page 474):

16. Whilst the Court was there considering an application to prohibit the further hearing of the complaint against Mr Phillips by the Fitness to Practice Committee, and that of course is not the matter I am dealing with here, nonetheless it appears to me that the reasoning of the Court there is apposite. The question of the substance to be attributed to these complaints is a matter for the Fitness to Practice Committee and not for this Court. As I have already said it is clear that there is going to be a head-on clash as between the parties when the matter comes to be determined by the Fitness to Practice Committee, but as a ground for discharging the injunction it does not appear to me to have any validity.

17. The fourth point which is made in support of the application to discharge the order relates to the provenance of the complaints. It is to be noted that both sets of complaints emanated from Maternity Hospitals. One is from the Master of the National Master Hospital. The second set of complaints comes from the Matron of the Rotunda Hospital. It is clear from what I have read in the evidence before me that there are two very different philosophies which are abroad concerning confinement. The first is the view that hospitals are the appropriate places for women to give birth to their children. In many of the hospitals there is in existence a policy called the active management of labour which requires medical and midwifery intervention at various stages during labour and at various stages of the actual pregnancy and the birth itself. The other view is that hospitals are not the appropriate places for women to have children. It is said that birth is a perfectly natural process. One is not ill by virtue of being pregnant and women should be entitled to have their babies at home if they wish to do so. It is not for me to adjudicate on which of these views is the more correct or the more accurate or whether either of them can be said to possess those qualities. It seems to me that it is a matter of personal choice for a woman to decide whether or not she wishes to have her baby in hospital. It may be that those two conflicting philosophies will colour the evidence which is to be given to the Fitness and Practice Committee or they may not. I cannot say. Insofar however as it is said that simply because these complaints come from institutions which may subscribe to what I might call the "hospital philosophy" that they are therefore to be in some way denigrated does not seem to me a matter that I ought to take into consideration on this application.

18. It is also said that there is evidence of actual bias on the part of the Master of the National Maternity Hospital and there are incidents referred to in the affidavits from where that suggestion emanates. Again it does not appear to me to be appropriate to make any adjudication on that. No doubt the Master will be cross-examined when he is giving evidence before the Fitness to Practice Committee on that topic. So again this complaint concerning the provenance of the material which is being put before the Fitness to Practice Committee relates to the merits and I cannot deal with the merits on this application.

19. I should however say in so far as the allegation of bias is concerned, Mr Forde urged upon me that the affidavit which was sworn in support of that contention had not been contraverted by the Board. Now it is clear that the allegation which was made is one of bias not against the Board but against one of the complainants to that Board. It seems to me that it is not justifiable that the Board should be criticised for not coming into the arena and seeking to obtain affidavit evidence from the complainants before it with a view to putting that matter before the Court. The Board has to hold the scales evenly as between Complainant and Respondent. Therefore I do not attach a great deal of significance to the fact that an allegation of bias made against somebody who is not before this Court has not been answered by a body which is required to act in a quasi judicial fashion in respect of the matter before it. In my view this complaint is really one which relates to the merits. The merits of Dr. Boylan's contention and Matron Kelly's contentions are not before me. Again I do not propose to discharge the order which has been granted on this ground either.

20. The fifth ground which is put before me as a basis for discharge relates to what are called exceptional delays on the part of the Nursing Board in getting on with these enquiries. First of all may I saw that in my view a party who successfully obtains an order under section 44 of the Nurses Act of 1985 is under an obligation to proceed with reasonable expedition thereafter. That is the principle which is applicable in respect of Interlocutory Injunctions granted in ordinary civil proceedings. I see no reason why it should not equally apply to a statutory body who obtains an order of the type contemplated under section 44. Indeed it may even be said that there is a greater obligation on such a body to do so because in the event of such an order being granted it can effectively deprive a registered nurse or midwife of the opportunity of earning a living. In such circumstances I am of opinion that a successful applicant for an order of this type must get on with the case and must do so expeditiously.

21. I have considered the correspondence which has been put before me and exhibited in the various affidavits. I am of the view that the delay really breaks down into three parts. There is a delay between the incident complained of and the making of the actual complaints to the Nursing Board. Insofar as those delays exist I do not think that they can be visited upon the Nursing Board. They are not responsible in that regard. It may very well be that the Complainants will be cross-examined at the hearing before the Fitness to Practice Committee concerning that aspect of the matter. If they thought that what had gone on was so serious why did they not report the matter to the Nursing Board the next day? That is really again to touch upon the merits of the matter. But the delay between the incidents and the complaints being made to the Nursing Board is not a matter in respect of which that Board can be justly criticised.

22. The second element of delay is between then and the making of the finding by the Fitness to Practice Committee of the existence of a prima facie case. It seems to me that the Committee is entitled to take a reasonable time in coming to a conclusion on matters as serious as are involved in making such a determination. I do not think that the delay which took place in that regard can be regarded as unreasonable.

23. The next period of delay is as between the obtaining of the orders under section 44, which was the 1st August this year, and what has now occurred. True it is that three of these applications to the Fitness to Practice Committee are effectively frozen by reason of the judicial review proceedings. But the fourth complaint was not. I think it is a matter of some importance that even as yet the notice which would give rise to a hearing before the Fitness to Practice Committee has not been served. A period since the 1st August of this year has gone by.

24. There are a number of factors which I think ought to be taken into account however in looking at what has occurred since then. First, it is contended, and I think with some degree of force, that it was not until the end of September that the Board was put into possession of certain records which were the subject matter of a discovery order. Having been put in possession of them the period from the commencement of October to date has gone by and still, as I say, no notice has been served. That period is said to be excused by the Nursing Board by a belief on its part that all four enquiries were to proceed together and that they would not proceed until such time as the judicial review application was disposed of in this Court. That is an assertion which has been made to me and there is some dispute concerning discussions which took place between Counsel in relation to the matter. I do not propose to make an adjudication on this. It seems to me there can be some element of criticism made of the Board for not getting on with expedition of the one enquiry which is capable of being disposed of. However it does not appear to me that the delay in question is such as to warrant the discharge of the order on that ground. In that regard I take into account that the effects upon Miss Ní Cheallaigh are not as drastic as they might otherwise have been because since the Order of Moriarty J. on the 3rd October she has been able to provide midwifery services to the various notice parties who are referred to in that Order. Her own evidence is that in any one year she would deal with no more than 45 individual patients. So I think her ability to earn her livelihood has been modified but only to a very small extent thanks to the variation of the original order which was granted by Moriarty J. on the 3rd October. Whilst I think there is a small element of criticism that might be made of the Nursing Board for not getting on with the matter more expeditiously than they did I am of opinion that that delay itself is not sufficient to warrant the discharge of the Order.

25. The sixth ground that is advanced is that Miss Ní Cheallaigh is self-employed and that of course is accepted and speaks for itself. I accept that an order of this sort is very serious for her as it is for any other self-employed professional person who is the subject of an order of the type envisaged in section 44. But in coming to this application I have not merely to consider her rights but I have to balance her rights as against those of other parties and in particular the public interest. It seems to me that given what has occurred since the original order was made this ground of itself would not be sufficient to warrant the discharge of the order.

26. The seventh ground which was addressed by Mr Forde was on the basis of the rights of the mothers who wish to contract with Miss Ní Cheallaigh to provide midwifery services. I think I have accommodated them fully by joining them at their own request as notice parties, by allowing them to adduce evidence and to hear submissions from Counsel on their behalf.

27. The final point which was made in support of the application to discharge the order was described by Mr Forde as that of precedent. He relies upon the Order of Moriarty J. in that regard. Far from being an authority in his favour it seems to me that the Order of Moriarty J. is against him because that Judge quite clearly varied the Order so as to enable midwifery services to be provided to the named individual set forth in the body of the order and the schedule to it. But apart from that the injunctive relief which was in being was continued. Therefore it seems to me that far from supporting the argument made by Mr Forde this order is actually against him because Moriarty J. continued the order in being subject only to the variation to which I have already referred.

28. These are the eight grounds which have been advanced. In my view neither individually nor collectively would they justify this Court in discharging the order which has already been made. Consequently I propose that the order should continue in force until the ultimate determination of these proceedings. I therefore refuse to discharge the section 44 order.

29. I now come to deal with the application to vary. This application is made by Miss Ní Cheallaigh and by five mothers to be. Four of them will be mothers for the first time. All of them sought to become patients of Miss Ní Cheallaigh subsequent to the order of this Court of the 1st August 1997. It is clear that they are all ladies who hold strong views. They do not wish to be hospitalised for their confinements. They not appear to subscribe to the active management of labour philosophy. They take the view, and they are entitled to take the view, that they wish to have their confinement at home with the assistance of a domiciliary midwife. In my view they are perfectly entitled to take that view and they are perfectly entitled to proceed in accordance with it. They contend that they have a statutory entitlement under the provisions of section 62 of the Health Act 1970 to medical and midwifery care and that the care should be available to them in their own homes. I will assume, without deciding that issue, that such is the case. The tragedy from their point of view is that they have chosen a midwife whose registration as such is no longer in effect having regard to the provisions of section 44 of the Act. So they have chosen a midwife who is not free to act as such, save with the leave of this Court. They contend however that she is the only midwife available to them and they adduced evidence to demonstrate that such is the case.

30. I am satisfied on the evidence that I have had from them that they are not unsuspecting or uninformed members of the public. It seems to me that it is precisely that segment of the public that section 44 seeks to protect. These ladies have made a deliberate and conscious decision that they wish to have a home birth with the assistance of a domiciliary midwife. If, therefore, they wish to employ Miss Ní Cheallaigh with their eyes open and are fully apprised of the facts I would be prepared to permit them to avail themselves of her services. But on the evidence before me I am not satisfied that the choice which they wish to exercise in regard to Miss Ni Cheallaigh is an informed one. They have been given what is described as a summary of the allegations made against her. That is being provided to them by a Solicitor, and I make no criticism whatsoever of the Solicitor and the imparting by him of such information to them. However Counsel appearing on behalf of them tells me that they have not read the complaints in this case nor have they read any documentation concerning those complaints. What they have been given is a summary via the Solicitor who is of course not qualified medically or in the field of midwifery. Again I make no criticism of him in that regard. I am quite certain that he was entirely bona fide and did his best but what he gave them was a summary and a summary can never in my view substitute itself for the entire and unexpurgated version of the complaints in question.

31. Having been told that they have not read the complaints nor any documents pertaining to them I do not think that their decision to proceed to avail themselves of the services of Miss Ní Cheallaigh can be described as a fully informed one. Before the Court would be prepared to permit them to avail themselves of her services I would have to be satisfied that they do have before them all of the necessary material so as to enable them to make an informed decision. Such a decision was quite rightly stated by Counsel to be for some of them, and perhaps all of them, a decision concerning the most important event in their lives. Therefore on the present state of the evidence I would not be prepared to order a variation so as to permit them to avail themselves of the services of Miss Ní Cheallaigh.

32. What I will do, however, is this. I propose to make an order which will put them into possession of the necessary factual material. I will then give them an opportunity to consider that and take independent medical or midwifery advice if they wish. If, having been fully apprised of the matter, they then wish to continue to avail themselves of the services of Miss Ní Cheallaigh I will permit them to do so. I will be satisfied then that they are fully informed and are in a position to make the decision of very great moment from their point of view.

33. I propose to make an order that the complaints which have been made against Miss Ní Cheallaigh in the form in which they were received by the Nursing Board should be furnished to the Solicitor acting on behalf of the notice parties. The notice parties will then be given a copy of those complaints and they will be enjoined from disseminating any of the information which is contained to any third party save (a) their husbands if they are married or the fathers of the unborn children if they are not and (b) any medical or midwifery expert whom they wish to consult. If having taken the views of those persons they then wish to proceed with the services of Miss Ní Cheallaigh they must notify the Solicitors for the Nursing Board of that fact and the order will be varied so as to provide for such an accommodation.

34. Insofar as the curial part of the Order under consideration is concerned, the application to discharge the injunction is refused. The application to vary is permitted in the following circumstances:-