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Cite as: [2002] IEHC 32

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Tarrade v. Northern Area Health Board [2002] IEHC 32 (15th May, 2002)

THE HIGH COURT

2000/184JR

BETWEEN

CHRISTIE TARRADE

APPLICANT

AND

THE NORTHERN AREA HEALTH BOARD

RESPONDENTS

THE HIGH COURT

2000/185JR

ELIZA KANE AND JEFF KANE

APPLICANTS

AND

THE NORTHERN AREA HEALTH BOARD

RESPONDENTS

THE HIGH COURT

2000/237JR

BERNIE FOGARTY AND ALBERT FOGARTY

AND

THE NORTHERN AREA HEALTH BOARD

RESPONDENTS

THE HIGH COURT

2000/261JR

MAYA HERREN REDMOND AND THOMAS REDMOND

APPLICANTS

AND

THE NORTHERN AREA HEALTH BOARD

RESPONDENTS

JUDGMENT of Mr. Justice Roderick Murphy dated the 15th day of May, 2002.

1. ISSUES

1. These four Applications for Judicial Review against the Northern Area Health Board concern one particular common issue which is the mootness of the Application at the time of hearing, save for the issue of damages.

2. The Applicants sought an Order of Mandamus compelling the Health Board to provide domiciliary midwifery services to each of the Applicants who, at the time of the Application was with child. The Application was made pursuant to Order 62 of the Health Act, 1970. Each of the Applicants is a persons with full eligibility.

2. The Applicants and their spouses also sought damages.

3. In Tarrade and Kane leave to apply for Judicial Review was ordered by Mr. Justice Kelly on the 13th of April, 2000. In the case of Fogarty Mr. Justice Lavan granted leave on the 13th of May, 2000 and in the case of Redmond Mr. Justice O Caoimh granted leave on the 22nd of May, 2000.

4. Ms. Tarrade’s baby was due on the 10th of June, 2000. It was her first child and she was seeking birth at home. Ms. Kane and her husband were expecting their third child on the 15th of July, 2000. The Fogarty’s were expecting their third child on the 29th of August, 2000 and the Redmond’s were expecting their second child on the 14th of June, 2000. All wanted to have their children at home with only a midwife in attendance. Reasons were given in the respective Affidavits of the reasons why they preferred home deliveries and the cost of same. None were members of any health insurance scheme. They refer to the advice given to them by their common Solicitor, MacGeehin and Toal who advised that they were entitled under the Health Act, 1970. They were further advised by their Solicitor that if the Health Board has no domiciliary midwife in its employment, then the very least they should provide expectant women with the full cost of obtaining such services. On their instructions the Solicitor wrote to the Health Board seeking the services on their behalf. The letters were dated between the 24th of March, 2000 and the 9th of May, 2000. Reference in the letters to an arbitrary grant of £600 or £650 is made for those who contract privately with midwifes each say that they are not in a position to contract privately with a midwife and any such proposal would not be acceptable. The first three Applicants had taken the step of contacting midwife Philomena Canning who came to the conclusion that each of those Applicants was a suitable candidate for home birth and that the midwife would be willing to take her on as a client. Mrs. Redmond had engaged the services of midwife Ann O’Ceallaigh who proclaimed her to be a suitable candidate for home birth. Mrs. Redmond’s Solicitor refers to a puzzling pattern which has been followed in several recent cases that they had. The Health Board asked for an assessment to be carried out by a public health nurse and by a nominee of Holles Street Hospital who have their own birth scheme. The deponent questioned the point of this assessment.

3. In all cases the Health Board was asked to reply within a week.

5. ISSUE

4. The net issue, the Applicants submit, is whether the Health Board has a legally enforceable obligation to provide domiciliary midwifery service for the Applicants. Where no such service exist whether they have an obligation to compensate the Applicants for reasonable costs and expenses incurred in hiring independent midwives.

5. It would appear that the Health Board did not pay the grant to any of the Applicants.

6. HEALTH ACT, 1970

6. The Applicants base their claim on Section 62 of the Health Act, 1970. That Section provides as follows:

“62 - (1) A Health Board shall make available without charge medical, surgical and midwifery services for attendance to the health, in respect of motherhood, of women who are persons with full eligibility or persons with limited eligibility.

(2) A woman entitled to receive medical services under this Section may choose to receive them from any registered medical practitioner who is entered into an agreement with the Health Board for the provision of these services and who is willing to accept her as a patient.

(3) When a woman avails herself with services under this Section for a confinement taking place otherwise than in a hospital or maternity home, the Health Board should provide without charge obstetrical requisites to the extent as they may be specified by regulations made by the Minister.”

7. The Applicants referred to the judgment in Spruyt -v- The Southern Health Board (unreported Supreme Court decision, 14th of October, 1998). The legally enforceable obligation was stated to apply to all Health Authorities to provide mothers who wanted to have their children at home with the services of a midwife.

8. In the present cases the Health Board does not have its own midwifery services. The Applicants say they were constrained to hire independent midwifes. They say that they are entitled to be compensated by the Health Board for incurring that expense. While the statutory duty can be discharged by supplying a registered medical practitioner qualified and midwifery, where such practitioners no longer deliver the only persons who can now do that outside of hospitals are independent midwives such as Ms. Canning and Ms. O’Ceallaigh.

9. QUESTION OF MOOTNESS

APPLICANTS SUBMISSION

7. The issue of a mootness arises because each of the babies was born before the hearings of these actions. In Nevin Maguire -v- The South Eastern Health Board (J.R. 346 of 1999: Judgment of Finnegan J. (as he then was) of the 25th of January, 2001 the objection to mootness was upheld. In the present cases the Applicants seek damages and the Applicants submit, on that ground, the Maguire decision can be distinguished. This is so because there remains a live issue to be tried. If the Applicants succeed they will be awarded damages.

8. It is further submitted that it is virtually impossible to ensure that a Judicial Review dealing with such an issue could be heard and determined before a child is born. This would have the effect of denying mothers their constitutional right of access to the Courts. The Applicants submit that mootness objections arising from the comparatively brief duration of pregnancy has been regularly rejected in cases relating to abortion (see Rowe -v- Wade , 410 US 113 (1973)) and a constitutional texts commenting thereon.

9. The Applicants submit that it is unfair and invidious discrimination against women and contrary to Article 41 of the Constitution to apply a mootness argument. In relation to equal pay Dekker -v- Strichting (177/88) (1990) ECR 3941 rejected the objection to mootness.

10. Moreover, Costello P. in Sherwin -v- Minister for the Environment (High Court 11th of March, 1997) in relation to an issue arising out of the 1995 Divorce Referendum for which had taken place stated at page 22 as follows:

“The possibility that other referenda will take place in circumstances similar to those relating to the 15th Amendment is not a fanciful one and the issue raised by the Plaintiff may well arise again. It is therefore proper that the Court should clarify the Minister’s legal powers.”

11. Counsel for the Applicants submit that the Court should, in a similar manner, clarify the Health Board’s legal obligations under Section 62 of the 1970 Act.

10. QUESTION OF MOOTNESS

RESPONDENTS SUBMISSIONS

12. Mr. McEnroy, S.C., for the Health Board, objected to the Application on the ground that it was, indeed, moot. All cases were adjourned to await Mr. Justice Finnegan’s judgment in Nevin Maguire in April, 2001. The matters had been adjourned from December, 2000.

13. In relation to damages which the Applicants say they can now claim, Counsel for the Health Board says that even if there are enforceable rights they do not automatically give rise to an action for damages. There is no private law remedy to damages. Medical card holders rights do not encompass a right to action for damages.

14. Moreover where substantive relief is not available, then a private law remedy in damages cannot be granted.

15. The case is about the recognition of a new profession that of independent midwives at a new fee structure together with expenses. It is also about the funding of services that eligible patients elect to obtain.

16. The claim for a discrimination arises only where marital status is the ground. There is no discrimination in the provision of health services to the extent argued by the Applicants.

17. Each case turns on its own facts and particularly where it depends on uniquely human circumstances of the Applicants giving birth.

18. The Court should not be used to make policy statements: this is clearly the remit of the Health Boards.

11. APPLICANTS REPLYING SUBMISSIONS

19. The issue of discrimination is misunderstood.

20. If the mootness argument deprives women of their case given the delay in getting the case on then it should be rejected.

21. The issue is damages. Perhaps the Applicants have no right to damages but it is an issue. The Applicants are looking for damages for breach of a public law right: Glencar -v- Mayo County Council applies.

22. The Applicants are seeking a declaration that Section 62 requires the Health Board to make services available. Where it refuses to make such services available then it is an obligation to compensate those who make alternative arrangements.

12. THE DECISION OF THE COURT

23. It is clear from the decision in Nevin Maguire that the Court has already determined the issue of mootness. The Applicant’s are not entitled to pursue claim which has been adjourned pending and given that decision.

24. The only issue which is alive is that of damages, as clearly stated by Counsel for the Applicants. This raises two issues:

(a) Whether a right to damages exists in the absence of a positive determination of a substantive claim, and

(b) Whether damages can be awarded for an alleged breach of public law.

25. It seems to be clear that the obligation of the Health Board is a public obligation under Section 62 of the Act. The Act provides for services by a medical practitioner. Midwives are not medical practitioners even though they may be more experienced in midwifery particularly where medical practitioners no longer hold themselves out as obstetricians. This is clearly a policy matter for the Health Boards and for the medical profession. It is not for the Court to second guess. This policy nor, indeed, does the Applicants case require it.

26. If a case is moot, then clearly the Court cannot grant any substantive remedy. The question then arises whether damages can, in itself, be a substantive remedy. Damages depends on a breach of obligation which, if not proven, does not arise.

27. Moreover no authority has been advanced as to the awarding of damages for, allegedly, a public obligation breach. Such a claim is subsidiary.

28. It isn’t necessary for the Court to determine the substantive issue: the application is moot; damages as a subsidiary issue cannot arise in law without there being a breach.

29. Accordingly all four applications stand dismissed.