High Court of Ireland Decisions

 


HC 306/04

THE HIGH COURT JUDICIAL REVIEW

[2001 No. 298 JR]

BETWEEN

SHAUNA TIERNEY, MAURA SHERLOCK, BRENDA McANESPIE AND SHARON O'NEILL

APPLICANTS

AND THE NORTH EASTERN HEALTH BOARD

RESPONDENT

JUDGMENT of Mr. Justice Aindrias Ó Caoimh delivered the 30th July, 2004.

By Order of this court (Kelly J.) made the 9^th May, 2001 the applicants were given leave for the following reliefs:

1. A Declaration that the Respondent in discontinuing provision of maternity services at Monaghan General Hospital has acted ultra vires in excess of and in breach of its reserved functions having regard to the provisions of Section 38 of the Health Act, 1970 as amended.

2. A Declaration that the Chief Executive Officer of the Respondent in directing discontinuance of maternity services at Monaghan General Hospital has acted ultra vires and in excess of his executive functions having regard to the provisions of the Health Act, 1970 as amended by the Health (Amendment) (No. 3) Act, 1996 in particular with the provisions of Section 4 thereof.

3. If necessary a Declaration that the decision of the Respondent herein to "temporarily suspend" maternity services at Monaghan General Hospital for an indeterminate period of time is in the circumstances a decision to terminate discontinue cease and/or remove from Monaghan General Hospital appropriate maternity and paediatric in-patient services as required and defined by Statute.

4. If necessary a Declaration that the Respondent has negligently and in breach of duty failed to discharge and execute its functions pursuant to the provisions of the Health Acts 1947 to 1996.

5. A Declaration that the Respondent has failed refused and neglected to implement its own plan for the provision and development of joint departments for Obstetrics and Paediatrics for both Cavan and Monaghan Hospitals having regard to its statutory duties pursuant to the Health Acts 1947 to 1996 and in particular having regard to the legitimate expectation of citizens in the Monaghan General Hospital catchment area.

6. If necessary an Order of Certiorari quashing each and every decision made whereby the Respondent herein has purported to discontinue suspend and otherwise cease the maternity in-patient department at Monaghan General Hospital in the absence of the exercise of appropriate statutory power to do so.

7. If necessary an Order of Certiorari quashing each and every decision made by the Respondent directing discontinuance of the maintenance of in-patient maternity services at Monaghan General Hospital having regard to the provisions of Section 38(5) of the Health Act as amended.

8. If necessary a Declaration that having regard to the provisions of

Section 38(1) of the Health Act, 1970 the Respondent its servants or agents is obliged to provide and maintain at Monaghan General Hospital an appropriate level of maternity services and paediatric care for in-patients.

9. If necessary an Order of Mandamus Compelling the Respondent to forthwith restore provide and progressively maintain at Monaghan General Hospital maternity and paediatric services for in-patients pursuant to the Health Acts 1947 to 1996.

10. If necessary an Order of Certiorari quashing any decision made by the Executive Officer of the Respondent in circumstances where the Respondent did transfer to and authorise its Executive Officer to act ultra vires and in breach of the Respondent's statutory powers and duties.

11. If necessary a mandatory injunction compelling the Respondent to forthwith restore provide and progressively maintain at Monaghan General Hospital maternity and paediatric in-patient services in accordance with its statutory power and duty pursuant to the provisions of the Health Acts 1947 to 1996.

12. If necessary a mandatory injunction compelling the Respondent to forthwith implement all and any requirements in consultant contracts whereby consultants engaged at Cavan General Hospital provide sessional commitments at Monaghan General Hospital and there attend for the discharge of duties in relation to maternity and paediatric in-patient services so as to implement its own stated objective and strategy.

13. If necessary an Order of Prohibition restraining the Respondent its servants or agents from taking any step which would further jeopardise the provision and progressive maintenance of maternity and paediatric in-patient services at Monaghan General Hospital having regard to the statutory powers functions and duties of the Respondent.

At the hearing of the motion before this court it was indicated by counsel on behalf of the applicants that they were seeking the relief at paragraphs 2, 3, 6, 9 and 11 and not the other reliefs set forth in the order and the statement grounding the application for judicial review. The grounds upon which the relief is sought are as follows:

l. That the Respondent, its servants or agents, has acted ultra vires and in breach of duty having regard to its statutory powers and duties pursuant to the provisions of Section 38(1) to Section 38(5) of the Health Act, 1970.

2. That the Respondent has acted unreasonably in the exercise of its statutory powers and duties and in particular has failed to discharge its statutory obligations in a reasonable and fair manner.

3. That the Respondent has unreasonably exercised its statutory power, and in particular has failed to diligently discharge its function of administering, providing and progressively maintaining at Monaghan General Hospital an appropriate level of hospital care for the provisions of in-patient maternity and paediatric services.

4. That the Respondent has exercised its administrative functions in or about the running, maintenance and provision of services at Monaghan General Hospital, more particularly maternity and paediatric services, in an unreasonable, arbitrary and inconsistent manner contrary to its statutory duty.

5. That in "temporarily suspending" maternity services at Monaghan General Hospital in such circumstances as amounts to a discontinuance in the provision of maternity services for the foreseeable future, the Respondent has acted unlawfully, ultra vires and in breach of statutory duty.

6. That in arriving at a decision to discontinue or temporarily suspend hospital services for an indeterminate period of time in such circumstances as amounts to the determination of maternity services at Monaghan General Hospital the Respondent has exercised its statutory powers in bad faith for an ulterior motive and/or an improper purpose, more particularly to cease to provide and progressively maintain, in breach of statutory duty, maternity and paediatric care on an in-patient basis at Monaghan General Hospital.

7. That in discontinuing for an indeterminate period maternity services for in-patients at Monaghan General Hospital the Respondent has failed to discharge its public duty for the provision and maintenance of Monaghan General Hospital in good faith.

8. That in purporting to exercise its statutory power, in such manner as enabled the Respondent to achieve by a device, more particularly temporary suspension for an indeterminate period, the withdrawal of in-patient maternity services from Monaghan General Hospital, the Respondent has wrongfully used its powers to achieve an unlawful object in breach of its statutory powers and duties.

9. That in withdrawing maternity services from Monaghan General Hospital, the Respondent has failed to have regard to all relevant and legitimate factors applicable to the provision and progressive maintenance of such services at Monaghan General Hospital, and in particular its own stated policy as enunciated in 1993 and again in 1998.

10. That the Respondent in withdrawing maternity services from Monaghan General Hospital, has failed to maintain an appropriate proportionality or balance between any adverse effects which its decision might have had upon the rights, interests and legitimate expectations of citizens in the Community to which such hospital service was provided and the purpose otherwise pursued by the Respondent in making the decision complained of.

11. That in withdrawing maternity services from Monaghan General Hospital the Respondent has failed to have any or any adequate regard for the legitimate expectations of citizens to have provided in their Community to them an appropriate level of in-patient maternity and paediatric care at Monaghan General Hospital.

12. That in withdrawing maternity services from Monaghan General Hospital the Respondent has failed to have regard to the legitimate expectations of citizens in that Community.

13. That the Respondent has acted in breach of the principles of natural justice and/or constitutional fairness and fair procedures in withdrawing maternity services from Monaghan General Hospital.

14. That the Respondent is in breach of its statutory duty and has acted ultra vires in discontinuing maternity services at Monaghan General Hospital in circumstances where there is no statutory power to so do having regard to the provisions of Section 38(1) to 38(5) of the Health Act, 1970.

15. That the Respondent has failed to implement its own stated objective and/or plan as enunciated in 1993 and reiterated in 1998, and in particular has failed to ensure the appropriate level of obstetric and paediatric cover at Monaghan General Hospital to safely provide in-patient maternity and paediatric care in accordance with good medical practice whilst possessing the capacity to provide such service within the Cavan/Monaghan Hospital Group.

16. That the Respondent, through ignoring its duty to provide and progressively maintain services at Monaghan General Hospital, has created and/or orchestrated a device whereby it now seeks to legitimately excuse the provision and maintenance of in-patient maternity and paediatric services at Monaghan General Hospital.

17. That in orchestrating the removal of insurance cover in or about the provision of insurance cover to Monaghan General Hospital, the Respondent has acted ultra vires in bad faith and in breach of its statutory duties and functions.

18. That in considering the absence of insurance cover in determining to discontinue the provision of maternity services at Monaghan General Hospital in circumstances created by its own conduct, the Respondent has acted ultra vires and in breach of its statutory duties and functions.

19. That the Respondent has negligently or otherwise failed to take all necessary and appropriate steps since the implementation of its own policy document for the Cavan/Monaghan Hospital Group in or about 1993 to provide and progressively maintain at Monaghan General Hospital an appropriate level of staff and services to provide in-patient maternity and paediatric care to an approved medical standard.

The applicant's application is grounded upon an affidavit of the third applicant Brenda McAnespie who at the time of the swearing of this affidavit was a mother of five children and then pregnant expecting her sixth child. She indicates that she resides in the catchment area of Monaghan General Hospital at Emyvale in the County of Monaghan which is a village located to the northern end of the county. She expresses her wish to have further children and that there be available to her at Monaghan General Hospital the level of maternity and paediatric services which she as a citizen is entitled to expect of the respondent having regard to its duties and obligations pursuant to the provisions of the Health Acts.

Mrs. McAnespie refers to the fact that Monaghan General Hospital is a general hospital which was established in or about 1937 with a complement of 90 beds for the treatment of medical and surgical cases. She says that at the time of swearing the affidavit, the hospital has a complement of some 150 in-patient beds of which 21 are maternity cases, 6 for gynaecology and 18 for children.

She says that believes that in 1993 the respondent hereinafter referred to as the Health Board adopted the plan or strategy entitled "a new direction for acute hospital services" to guarantee an active role for five hospitals in its region including Monaghan General Hospital, based upon the structures of hospital groups, joint clinical departments, joint posts so as to make available a wider range of services to citizens of the area. She says that the plan provided for acute services both in Monaghan General Hospital and Cavan General Hospital operating under the umbrella of shared consultant led joint departments in all the specialities, including surgical, maternity, paediatrics etc. She states that following the adoption of this plan, the Health Board Executive and documents emanating from it referred to Cavan General Hospital and Monaghan General Hospital as the "Cavan/Monaghan General Hospital" having sites at Cavan and Monaghan. She expresses the belief that the amalgamation was an excuse to fade out Monaghan General Hospital by degrees, by basing the substantive consultancy led departments in Cavan and servicing Monaghan General Hospital with outreach cover only from Cavan. She states that this fear was discounted by the Health Board and its executive. She indicates that the plan envisaged that the joint department established thereby would have available to it four consultant obstetricians in the Cavan/Monaghan Hospital Group joint department. She states her belief that in breach of the stated objectives of its plan and despite having four consultants available, the respondent has failed to implement adequately or at all, the joint department arrangement with Monaghan General Hospital leaving in Monaghan General Hospital only one resident consultant with no consultant cover. She states that there are two consultant paediatricians in Cavan/Monaghan Hospital Group but both of these are based in Cavan General Hospital and that the Health Board has not implemented its joint department arrangement with Monaghan General Hospital which has no paediatric consultant in the hospital and enjoys a weekly visit from one of the Cavan based consultants for a clinic having a period of approximating to 3 hours and a fortnightly visit from a second Cavan based consultant for a three- quarter hour clinic.

Mrs. McAnespie states that as a result of the failure of the Health Board to implement its own plan of 1993 the total of births recorded in 1999 at Monaghan General Hospital had fallen to a total of 344 whilst those at Cavan General Hospital were at a total of 917 of which some 300 had addresses in Monaghan. She states that the discrepancy arises by virtue of the concerted efforts on the part of the Health Board to make Cavan General Hospital the more attractive Hospital for the provision of maternity services, each having a full complement of three obstetricians, two paediatricians and all necessary nursing staff. She states her belief that the success of the 1993 joint department plan for the Cavan/Monaghan Hospital Group as so called adopted by the Health Board very much depended upon the appointment of consultants to both sites and their presence at both hospital sites. She states her belief that this depended on the service contracts of appointed consultants containing conditions obliging them to implement the joint department strategy and, insofar as the viability of Monaghan General Hospital was concerned, obliging them to give an equal viable service to the joint department in-patient service at Monaghan General Hospital site. She says that success further depended upon enforcement of such contract conditions with the consultants engaged.

By way of background, Mrs. McAnespie points out that in 1993, the maternity and childcare services at Monaghan General Hospital had only one resident obstetrician assisted by his Registrar but to all intents and purposes operating without a second consultant cover and without a consultant paediatrician in residence. She states that the community, its medical consultants in the hospital had for many years been lobbying for obstetric cover and a complementary paediatrician appointment at Monaghan General Hospital and the 1993 plan was presented as addressing these calls.

Mrs. McAnespie states that the 1993 plan was not implemented by the Health Board. While additional consultants were appointed to the Cavan/Monaghan Hospital Group for maternity and childcare services, such consultants with the exception of the one consultant were based at Cavan General Hospital without being obliged to attend at the Maternity Department of Monaghan General Hospital to thereat provide at an appropriate level of impatient maternity and childcare services. She said that the consultant at Monaghan was obliged to serve it single handily with his registrar and that there was no consultant paediatrician appointed in Monaghan General Hospital. She pointed out that at the time one paediatrician travelled weekly from Cavan for a clinic of approximately three hours and there is a fortnightly visit from a second Cavan based consultant for a three-quarter hour clinic. She says that in these circumstances the viability intended to be introduced by the 1993 plan was denied to Monaghan General Hospital. She states that there are four consultants at Cavan/Monaghan Hospital Group specialising in obstetrics and gynaecology, three of which are based at Cavan General Hospital.

It is stated that the knock-on effect of the failure to implement the plan has been that in 1999 of 674 Monaghan births only 344 occurred in what she describes as the "consultant starved Monaghan General Hospital Maternity facility". She states that this has led to consultant appointments to Monaghan General Hospital now being opposed on grounds of non-viability which was fostered by the failure on the part of the respondent to implement the 1993 plan for the joint departments of Cavan/Monaghan Hospital Group and the failure to provide the attendance of available consultants at Monaghan General Hospital for maternity and childcare services. She further complains that there has been a failure to upgrade Monaghan General Hospital in keeping with medical equipment and staffing advances and that in 1990 a figure of £5 million was estimated to be required to bring it up to date in many respects.

Mrs. McAnespie states that in or about November 2000 a report commissioned by the Health Board was published entitled "Report of the Review Group on Maternity Services in the North Eastern Health Board" by one Mr. Dermot Condon, Chairman of the Maternity Services Review Group of the Health Board and submitted to the Chief Executive Officer of the Health Board. She points out that this report recommended that maternity in-patient services must at a minimum be three consultant led and to justify that number must have in or about the region of 1000. This report specifically recommended the cessation of the single consultant led maternity services at Monaghan General Hospital. She points out that at a meeting of the Health Board on 27^th November, 2000 it declined to adopt this report and directed the establishment of a further review with a broader remit. She refers to a resolution of the Health Board passed on 27^th November, 2000.

It is indicated that the consultant at Monaghan Hospital, Mr. Alphonsus Kennedy, thereafter informed the Deputy Chief Executive Officer of the Health Board that in the light of this report the Condon Report, as it is referred to, he felt unable to provide a safe level of obstetric services until adequate and safe neo-natal services were available at Monaghan General Hospital and requested confirmation that the Health Board will accept full responsibility for anything untoward or adverse events arising from the failure on the part of the Health Board to prove same. It appears that following upon this correspondence the Chief Executive Officer of the Health Board decided to furnish this to the insurers for the Health Board the Irish Public Bodies Mutual Insurance Limited which indicated that in view of the reservations and concerns contained in the correspondence, coupled with the recommendations in the Condon report it felt unable to provide indemnity to the Health Board in respect of the Maternity Unit at Monaghan and Dundalk unless before the end of February, 2001 "appropriate interim measures are implemented in the near future pending a final resolution of the overall problems". On the 22^nd January, 2001, the Chief Executive Officer recommended to the Health Board a motion proposing the temporary suspension of maternity services at inter alia, Monaghan General Hospital. Consideration of the position was adjourned to yet another meeting of the Health Board. On 5^th February, 2001, the Minister for Health and Children wrote to the Chairman of the Health Board and stated that "single handed obstetrics units are no longer regarded as safe" and the way forward was "not a question of financial resources but is about putting in place services which comply with safety standards and internationally recognised best practice recommendations". At a meeting of the Health Board on 5^th February, 2001, and in place of the recommendation for suspension the Health Board directed the Chief Executive Officer to urgently seek the appointment of a temporary consultant obstetrician to the "Cavan/Monaghan Group" and on site paediatric cover at Monaghan General Hospital. Thereafter the Department of Health and Children wrote to the Chief Executive Officer of the Health Board by letter of 13^th February, 2001 with regard to a request for the approval of an additional temporary consultant. At a further meeting of the Health Board on 15^th February, 2001 the Health Board authorised the Chief Executive Officer to take all necessary appropriate actions to ensure the safety of patients in the event of a continuing refusal following a further request to the insurers to extend, cover inter alia, on the maternity unit in Monaghan General Hospital beyond 28^th February, 2001.

Thereafter it appears that nursing staff at Monaghan General Hospital Maternity Unit were requested to transfer to Cavan General Hospital and furthermore a letter was sent from AnnMarie Hoey, Manager of the Primary Care Unit of the Health Board, dated 27^th February, 2001 which stated that the Cavan/Monaghan Hospital Group regretted it must suspend temporarily in-patient maternity services in the Monaghan General Hospital site from 28^th February, 2001 and that from Thursday 1^st March, 2001 no in-patient maternity services would be available in Monaghan General Hospital until further notice. On 26^th February, 2001 the general manager of the Cavan/Monaghan Hospital group wrote to the then local consultant obstetrician/gynaecologist at Monaghan General Hospital clarifying arrangements in the event of the temporary suspension of maternity services at Monaghan General Hospital and more particularly stated that there must be a winding of the service with immediate effect from 28^th February, 2001.

Mrs. McAnespie points out that the Health Board has discontinued maternity in-patient services at Monaghan General Hospital with effect from 1^st March, 2001, for an indeterminate period and that there are now no maternity in-patient services being provided at Monaghan General Hospital. It appears as of that date that is 1^st March, 2001 those seeking maternity in-patient services have been obliged to attend Cavan General Hospital. It is clear that this represents an inconvenience to some persons including the applicants in circumstances where they are living some distance from Cavan General Hospital. Mrs. McAnespie complains that the service provided to her at Cavan General Hospital and states that as a result of what she describes as an unacceptably poor level of maternity service being provided to her at this hospital she was obliged thereafter to attend as a private patient, a service which she says she can ill afford.

Mrs. McAnespie states her belief that attending Cavan General Hospital for maternity services exposes her and her unborn child to an unjustifiable risk which is detrimental to the health of both.

Mrs. McAnespie states that as recently as 30^th March, 2001 the Health Board carried out a review of special services and reported while saying in a report from Dr. McLaughlin which report was recommended by the Chief Executive to the Health Board for approval. This report recommended that two consultants in obstetrics and gynaecology be appointed to Cavan General Hospital with no appointments based at Monaghan General Hospital and that a community paediatrician be based at Cavan Hospital with no appointment based at Monaghan General Hospital. It further envisaged that outreach services would be provided in obstetrics and gynaecology to Monaghan. This is perceived by the applicants as evidence of his decision to discontinue the provision of obstetrics, gynaecology and paediatric services on an in-patient basis at Monaghan General Hospital and that the current statement to the effect that a temporary suspension of in-patient services has occurred is inaccurate in light of the content of this report.

The applicant's contention is that the Health Board should have at all material times taken all necessary steps to implement its unapproved and adopted 1993 joint departmental plan thereby providing at Monaghan General Hospital all necessary consultant care, resulting in the birth numbers contended for and ensuring the continuance of insurance cover for a viable maternity and childcare service in Monaghan General Hospital.

In a supplemental affidavit Mrs. McAnespie indicates that on 8^th May, 2001 her solicitors wrote to Comhairle na n'Ospidéal drafting the outcome of their meeting to consider the application for approval, as a matter of urgency, of the proposed appointment of a consultant obstetrician and on site paediatric cover at Monaghan General Hospital. She states that she learned of an article in the medical weekly of the 7^th March, 2001 which reported that Comhairle na n'Ospidéal had at their meeting decided to defer the decision on the application for temporary consultant appointments pending consideration of a report in the matter. It was indicated that the Health Board Maternity Services Committee would examine the request for the approval of the consultant post. She states further that the appointment of a senior house officer is vital to the viability and function of any acute service unit including in particular obstetrics and gynaecology. The post of a senior house officer is of six months duration commencing the 1^st January and 1^st July in each year. She observes that no advertisement had been placed in relation to the senior house officer position for the term commencing on the 1^st July, 2001 for the obstetrics and gynaecology unit at Monaghan General Hospital.

Notice of opposition has been filed on behalf of the Health Board in which it is pleaded inter alia that the Health Board has no acted ultra vires and is not in breach of its statutory power duties as conferred by the Health Act, 1970. It is further contended that it has acted lawfully in and about its decision to temporarily suspend obstetric services in Monaghan General Hospital on 1^st March, 2001 which suspension relates to maternity delivery only and the respondent was not and is not in breach of the provisions of the Health Act, 1970 and in particular s. 39 (1) to s. 38 (5) thereof. The statement of opposition is essentially in the form of a traverse of the grounds advanced by the applicants. It is pleaded however that the respondent Health Board has not discontinued the provision of maternity or paediatric services in Monaghan General Hospital. It is further pleaded that the respondent statutory obligations do not requirement to provide or maintain any particular service at a given hospital. In this regard it is further pleaded that the respondent is under no duty to provide or progressively maintain any particular service at Monaghan General Hospital. At paragraph 31 of the Statement of Opposition it is pleaded as follows:

"The respondent did not determine on the discontinuance of the provision of maternity services at Monaghan General Hospital. Rather, the respondent determined on the temporary suspension of maternity delivery services in Monaghan General Hospital and such decision derived from consideration of the requirements of the service as embodied in the recommendations of the report of the review group on maternity services in the North Eastern Health Board (hereinafter refer to as the Condon report) as submitted to the respondent in November, 2000 while the withdrawal of insurance cover was an additional factor which the respondent had regard for in concluding that a temporary suspension of maternity delivery services was required in the said hospital."

It is further stated that the respondent never provided in-patient paediatric services in Monaghan General Hospital which services have been and continued to be provided at the Cavan Hospital. It is further pleaded at para. 35 that the respondent is continuing to provide the full range of services in Monaghan General Hospital as provided prior to 1^st March, 2001 save for the provision of the Maternity Delivery Services and for the reasons hereinafter set forth. The reasons in question are to be found at paragraph 38 of the Statement of Opposition. This reads as follows:

"The present decision to temporarily suspend services derives in part from the Condon report as referred to aforesaid and for the reasons therein set out. In this regard, the report refers to advices received from the Institute of Obstetricians and Gynaecologists who have stated that a viable unit to enable consultants to maintain their expertise and trainees to develop their skills requires in the region of 1000 births per annum. The report also advises that consultant led maternity services at Monaghan and Dundalk must cease in the immediate future and the provision of consultant led maternity services at Monaghan and Dundalk is no longer supported by the Institute of Obstetricians and Gynaecologists in that the number of births is insufficient to provide consultants with sufficient experience to maintain their own skills, or to train non-consultant hospital doctors. Further, the number of consultants is inadequate to allow sufficient time off duty to sustain health and pursue continuing professional developments. The report also states that a viable unit (or level 2 unit) offering appropriate maternity services should be staffed by a minimum of

three consultant obstetrics,

three consultant paediatricians,

three anaesthetists,

a midwifery staffing establishment sufficient to provide 1.5 midwives per women in labour (in this regard see p. 57 of the book of pleadings at para. 38 thereof)

the recommendation provides that level 2 delivery units must be located at Drogheda and Cavan with the potential for midwifery led obstetric unit at Dundalk and the recommendations in the said Condon report are referable in the main to the fact that births in Monaghan County in 1999 (and in preceding years) were very low as evidenced by a birth rate of only 341 in 1999. It was further pleaded that the respondent and in particular the Board of the respondent had no option but to temporarily suspend the provision of maternity delivery services pursuant to receipt of the Condon report. Moreover, the respondent is endeavouring to maintain maternity delivery services in Monaghan General Hospital and at its Board Meeting of 22^nd January, 2001 it was resolved, inter alia, to establish a further review with a broader remit. Thereafter, on 5^th February, 2001, the respondent resolved to seek approval from Comhairle na n'Ospidéal for an appointment of temporary consultant obstetricians to the Cavan/Monaghan Group and Louth/Meath Group and to seek in addition, approval for the immediate appointment of on site paediatric cover at both hospitals. This resolution was expressed to be without prejudice to the respondent's consideration of the recommendations of a further review approved by the respondent's Board on 27^th November, 2000. Comhairle na n'Ospidéal has yet to determine on the respondent's said request.

It is further pleaded that the Health Board is unable to comply with the conditions stipulated in the Condon Report at this juncture since an increase in the consultant staffing at Monaghan General Hospital can only be achieved pursuant to the approval of An Comhairle na n'Ospidéal while the number of deliveries in the hospital falls far short of the minimum required by the Institute of Obstetricians and Gynaecologists to maintain consultant skills and provide the basis for the training and supervision of trainee specialists. It is pleaded that the Health Board's suspension of maternity delivery services in Monaghan General Hospital was effected pursuant to the powers vested in the Board of the respondent by s. 3 (1) (a) of the Health (Amendment) Act, 1996. Finally it is pleaded that this court should in its discretion refuse to make an order, in particular a mandatory order, having regard to the legitimate concerns relating to the provision of a maternity delivery service at Monaghan General Hospital and the safety implications thereof since the Health Board is under a legal obligation to ensure that the health care service it provides conforms in all respects with acceptable standards of safety.

An affidavit has been sworn by Paul Robinson who is the Chief Executive Officer of the Health Board. He confirms that there is no acute in-patient paediatric service in Monaghan General Hospital and that an outpatient paediatric service is provided from Cavan Hospital and the Cavan based paediatric consultants travelled to Monaghan for this purposes. He refers to the fact that the children's beds referred to by Ms. McAnespie of her children and adolescents who were admitted for certain limited in-patient treatments of a medical or surgical nature.

Mr. Robinson refers to the 1993 Plan and to the fact that it was unanimously adopted by the Board and it accepted that it is clearly not justifiable to develop a total comprehensive general hospital service in each one of the five hospital sites. He states that the document also confirmed that it would not be possible to provide a full range of services on every site. He says that the plan was directed towards the preservation of five hospital sites in the Health Board's region. He takes issue with the assertion that the respondent Health Board was seeking to fade out Monaghan General Hospital by degrees. He states further that there is no reference in the 1993 plan to the number of consultant obstetricians in the Cavan/Monaghan Group. He says that in 1993 there were in fact two obstetricians in Cavan and one based in Monaghan. He points out that there are currently four consultant obstetricians/gynaecologists based in the Cavan/Monaghan Group. He refers to Mr. Kennedy having contractual commitment to Monaghan. He refers to another consultant having an 11 session contractual commitment to Cavan. He stated at the time of swearing this affidavit that there was a third post currently being filled in a temporary capacity pending a local appointment commissions appointment for replacement consultant comprising of eight sessions in Cavan and three sessions in Monaghan and where there was a fourth post consisting of 11 sessions in Cavan. He points out that there are two consultant paediatricians based in Cavan/Monaghan Hospital and they each have a sessional commitment to provide eight sessions in Cavan and three in Monaghan. He says that the Health Board cannot unilaterally alter a consultants contract to force a consultant to operate from any particular site and of the four consultants to whom he is referred only one has a commitment to be physically based in Monaghan. This was Mr. Kennedy who was the sole consultant carrying out maternity deliveries in Monaghan General Hospital until recent events resulted in the temporary suspension of the service.

Mr. Robinson says that Cavan Hospital has more demands on its services than Monaghan General Hospital and is therefore easier to "skill" than Monaghan. He says that the Health Board cannot attract consultants to Monaghan General Hospital if they are going to be under employed since consultants need to be in a position in which they can continually practice their skills. He says that if they are only handling a limited number of cases, they will move on or more accurately, they will decline to take up an appointment in the first place.

Mr. Monaghan refers to the number of births recorded at Monaghan General Hospital since 1993 which shows that in 1993 a high of 365 births were recorded while a low was recorded in the year 2000 of 303 births. He points out that in 1999 a total of 917 births were recorded at Cavan Hospital of which approximately 100 had addresses in Monaghan and not 300 as stated in Mrs. McAnespie's affidavit. Mr. Robinson further indicates that the service had been provided in proportion to needs. He indicates that the level of service demanded by the applicants has no objective justification in his view here in terms for the demand of such services or from the standpoint of the size of the hospital itself. He contends that the Health Board is required to allocate resources in the manner commenced with demand and that it has managed to achieve this objective to date. He contends that there is no requirement proposed by the 1993 plan to the effect that consultants had to devote equal time to each site and most appointments were on sessional commitments.

Mr. Robinson points out that the Health Board has never opposed the appointment of consultants to Monaghan General Hospital and he indicates that the viability issue does not derive from any alleged failure by the Health Board to implement the 1993 plan. He says that in order for a maternity unit to be viable there must be in the region of 1000 births per annum and that this competition has been advanced by the Institute of Obstetricians and Gynaecologists in Ireland and is confirmed in the Condon report. He points out that there are no obstetric units in the entire county Meath and no children are born in Meath. He points out that Meath births take place in other counties.

Mr. Robinson confirms that the Condon report was furnished to the Health Boards insurers since there is a requirement to notify insurers of material changes in the provisional service.

He states that the Health Board has been seeking extra cover in Monaghan General Hospital and has made application to Comhairle na n'Ospidéal in this regard. He points out that Comhairle formed a committee to inquire into the matter. He indicates that the Health Board cannot take any further action in the absence of Comhairle approval and that this act was as critical to an understanding of the respondent's contention that the maternity delivery service has not been discontinued in the sense asserted by Ms. McAnespie. He also points out that the Health Board was carrying out further review as resolved by its November, 2000 Board Meeting.

He states that there is no insurance placed on maternity delivery services in Monaghan General Hospital.

Mr. Robinson indicates that an implementation group was established with the following terms of reference:

(a) to prepare an action plan to ensure unnecessary appropriate actions were taken to ensure the safety of patients and staff pending a response from Comhairle na n'Ospidéal to the application for temporary consultant posts having regard to the special needs and wishes of the patients concerned;

(b) to agree implementations plan no later than Wednesday 21^st February, 2001; and

(c) to oversee the implementation of the action plan at the earliest possible date and in any event not later than the end of February, 2001 in order to comply with the current stated position of the Board's insurers.

Mr. Robinson indicates that am implementation plan was prepared and he refers to same. He confirms that insurance cover was discontinued with effect from 28^th February, 2001. Mr. Robinson categorises the situation as one of a temporary suspension of delivery services and not a discontinuation of maternity in-patient services.

Mr. Robinson says that Mrs. McAnespie's home would be just under one hour in ordinary circumstances from Cavan Hospital.

He takes issue with the assertion that she was obliged to attend as a private patient by virtue of an alleged unacceptably poor level of maternity service being provided at Cavan Hospital. He states that her decision was one of choice. He also rejects any assertion of risk in attending at Cavan General Hospital. At the time of swearing this first affidavit Mr. Robinson indicated that the suspension services at Monaghan Hospital was temporary pending a decision from Comhairle na n'Ospidéal regarding the respondents application for temporary appointments and the further review of maternity services which were then currently under way.

Much of this affidavit is argumentative in nature and it is not proposed to refer to these aspects of the affidavit.

The within proceedings were adjourned generally with liberty to re-enter on 15^th June, 2001.

On 5^th September, 2001 the applicants solicitors wrote to Comhairle na n'Ospidéal in relation to a decision of it to defer, pending consideration of a report awaited from the newly established committee, a decision on the Health Board's application for approval, as a matter of urgency, of the proposed appointment of consultant obstetrician and on site paediatric cover at Monaghan General Hospital. On 11^th September, 2001 Comhairle na n'Ospidéal stated that the decision remained deferred pending consideration of an expert report. The further review directed by the Health Board was published in a report headed "Report of the Maternity Service Review Group" in September 2001 chaired by a Mr. Kinder. This was adopted by the Health Board at a meeting of 22^nd October, 2001. By this report it was recommended that a level 3 obstetric unit be based at Our Lady of Lourdes Hospital, Drogheda; a level 2 obstetric unit be based at Kevin General Hospital, together with a level 2 special care baby unit; and midwife led units in Cavan and Drogheda with phased openings of units at Dundalk and Monaghan as soon as possible. These units were to permit community midwifery development and give great opportunity for the option of home births. Mrs. McAnespie indicates that there remained however the question of the appointment of consulting obstetrician and on site paediatric cover to Monaghan General Hospital site in accordance with the resolution of the Health Board and the application made to Comhairle na n'Ospidéal which application had been deferred pending consideration of an expert report of Comhairle na n'Ospidéal. Subsequent to the receipt by the Health Board of the report of the review group the Chief Executive Officer, Mr. Robinson, indicated to Comhairle na n'Ospidéal that the application for additional temporary appointments which had been submitted to Comhairle na n'Ospidéal no longer applied. This was due to the fact that the Health Board withdrew its application.

Based upon this information it is the belief of the applicants that there never was a bona fide intention of temporarily suspending maternity services at Monaghan General Hospital. It is further indicated that in or about July 2002 the gynaecological services which had existed at Monaghan General Hospital were discontinued.

In reply, an affidavit was sworn by Mr. Paul Robinson on 30^th May, 2003 in which he refers to the history of the case and in particular to the Kinder Report. This was adopted by the Health Board on 22^nd October, 2001. He says that following the adoption report the proposal was that units at Dundalk and Monaghan would be midwife led units. He says that it was outlined in the report that there would have to be phased openings of the units in Dundalk and Monaghan. A specific task force was established to oversee the implementation of the Kinder group recommendations and this task force issued a press interim progress report on 31^st March, 2002 and a second progress report on 12^th February, 2003. He points out that as is apparent from the report the midwife led unit in Monaghan is planned to open in 2005.

In his affidavit, Mr. Robinson says that the applicants proceedings were predicated on the contention that in temporarily suspending the consultant led maternity services in Monaghan the respondent discontinued maternity services in the hospital. He sets out his contention that this is incorrect as he says that they temporarily suspended maternity services because they were unsafe pending a review. He refers to the Kinder review having been carried out and that it recommended that the level of service be changed from a service led by a single handed consultant which existed pre February, 2001 to a midwife led service which is planned to open in 2005. On this basis he states as follows:

"The maternity service will therefore resume and it is the respondent's assertion in these proceedings that it is under no obligation to provide any particular or specific form of maternity service."

Mr. Robinson also explains the decision to withdraw the request to Comhairle na n'Ospidéal for approval for the appointment of consultant at Monaghan Hospital. He says that following the publication of the Kinder report it was decided that there should not be a consultant led service at Monaghan and hence there was clearly no requirement for the temporary consultants previously requested. He says that the respondent attempted to obtain temporarily consultants but in view of the findings in recommendations in the Kinder report it was decided that a mid wife led service would be put in place instead.

Submissions

Mr. Eoghan Fitzsimons S.C. on behalf of the applicant submits that this case raises a simple issue of statutory interpretation. In the first place it is submitted by counsel that an issue arises as to the proper construction of the relevant statutory provisions and in particular s. 38 of the Health Act, 1970 allied to the question of the distinction between the reserved functions of the Health Board and the executive functions of the Chief Executive Officer created by the Health (Amendment) (No. 3) Act, 1996. Counsel submits that a further issue arises whether the Health Board has discontinued maternity services or, as it maintains, merely temporarily suspended such services. Counsel further submits that an issue arises as to whether the respondent Health Board is entitled to classify Monaghan General Hospital and Cavan General Hospital as in effect one hospital operating a two separate sites and thus argue that providing maternity services in Cavan Hospital the Health Board is discharging any duty it may help to provide appropriate maternity services within its area. Section 38 of the Act of 1970 reads as follows:

"(1) A health board may, with the consent of the Minister, provide and maintain any hospital, sanatorium, home, laboratory, clinic, health centre or similar premises required for the provision of services under the Health Acts, 1947 to 1970.

(2) The Minister may give to a health board such direction as he thinks fit in relation to the provision or maintenance of any premises provided and maintained under subsection (1) and in relation to the arrangements for providing services therein, and the health board shall comply with any such direction.

(3) A health board may and, if directed by the Minister, shall discontinue the provision and maintenance of any premises provided and maintained by it under subsection (1).

(4) A health board shall not exercise its powers under subsection (3) in relation to the discontinuance of the provision and maintenance of a hospital, sanatorium or home save with the consent of the Minister.

(5) The Minister shall not give a direction under subsection (3) in relation to the discontinuance of the provision and maintenance of a hospital, sanatorium or home save after having caused a local inquiry to be held into the desirability of the discontinuance.

(6) Where, on a discontinuance under subsection (3), a person who held an office under the health board in the premises affected is offered a similar office by the board, the first-mentioned office shall, for the purposes of the superannuation of the person, be deemed not to have been abolished."

Counsel refers to the fact that the discontinuance provision in sub-s. 3 only refers to discontinuing the provision and maintenance of the premises, that is, that there is no reference to discontinuing the arrangement for providing services. It is submitted that it follows from this that it is only the provision and maintenance of premises (rather than services provided within the premises) which may be discontinued by the direction of the Minister which may be discontinued by the Health Board at its own discretion (with the Minister's consent). It is submitted that in each case there is a constraint on the Health Board or the Minister as the case may be. It is submitted that sub-s. 4 imposes the constraint on the Health Board and that it cannot exercise its discontinuance power save with the consent of the Minister. It is submitted that sub-s. 5 constrain a Minister in that before he gives any directions as to discontinuance he must hold a local inquiry into the desirability of the discontinuance.

Counsel submits that the distinction between the provision or maintenance of premises and arrangements for providing services therein seem to be quite deliberate, at least in the discontinuance context. It is submitted that it is unlikely to be accidental that there is no reference in sub-s. 3 to the Health Board discontinuing arrangements for providing certain services. On this basis it is submitted that if the Health Board is providing a service within a given hospital then it must continue to provide that service and cannot discontinue it. The applicants' argument in the present case is since maternity services have previously been provided in Monaghan Hospital the Health Board has no power to discontinue those services.

Counsel further refers to the fact that s. 38 of the Act of 1970 replaces sections 10 and 11 of the Health Act of 1947. Section 10 of the Act of 1947 gave the Health Authority power, with the consent of the Minister, to provide and maintain an institution which the Health Authority considered necessary. Section 11 permitted the Health Authority to discontinue (with the consent of the Minister) a Health Institution maintained by the Authority "or any department of such a Health Institution." Counsel submits that as there is no such reference to a Department of Health Institution or any analogous reference in the discontinuance provisions in s. 38 that the same cannot be implied.

Counsel refers to the decision of the Supreme Court in McMeel v. Minister for Health [1985] I.L.R.M. 616 in which the Supreme Court held upon an analysis of
s. 38 that the obligation to provide a hospital was not confined to the supply of the structure and embraced the supply of equipment, personnel and services. It was further held that the Minister's power under s. 38 (2) to give directions in relation to the "provision" of a hospital and in relation to the arrangements for providing services therein contemplated positive action and not the cessation or the discontinuance of what was being done. While the Minister would have been entitled, after holding a local inquiry, to have directed the closure of the entire hospital pursuant to s. 38 (3), he was not entitled to give a direction that certain services within the hospital (in that case) in-patient gynaecological services in Monaghan General Hospital) be discontinued. Counsel refers to portion of the judgment of O'Higgins C.J. at pp. 619 -620 wherein he stated as follows:

"The critical words are: …in my view it could not stop."

In the same case Griffin J. stated inter alia as follows at p. 623 624:

"While therefore the Minister could have required the Board to provide or to maintain existing premises or services, he was not empowered to direct them to discontinue existing services. The decision and direction given by the Minister were therefore ultra vires his powers under the subsection.

It is to be noted that while s. 11 of the Act of 1947 made express provision for the discontinuance of any department of a hospital, no such provision was included in s. 38 of the Act of 1970, and, desirable though it may be, no power was given to the Minister in that section to close a department of a hospital. The gynaecological services directed by the Minister to be discontinued in the present case would seem to be within any reasonable interpretation of 'a department of a hospital' if such a provision had been included in s.38."

Counsel refers to the notice of opposition which states that the "temporary suspension of maternity delivery services in Monaghan General Hospital was effected pursuant to the powers vested in the Board of the respondent by s. 3 (1) (a) of the Health (Amendment) Act, 1996." Counsel refers to the fact that this paragraph reserves certain functions to the Health Board which are those specified in the relevant part of the First Schedule to the Act. Counsel submits that only one of these appears to be relevant to the present case namely s. 38 (3). Counsel submits that this particular power does not extend to discontinuing a particular service within a hospital and therefore it is submitted that the Health Board's reliance on this provision is misplaced. Counsel further refers to the fact that the Minister has not consented pursuant to s. 38 (4) to the discontinuance or (temporary suspension) of maternity services in Monaghan Hospital.

Counsel further questions the power of the Board to temporarily suspend under s. 38 (3) the service being provided in a hospital. It is submitted that at best the power seems to be a power of discontinuance which, implies some more permanent cessation of the service rather than a mere temporary suspension. Counsel submits by reference to the McMeel case that the power of discontinuance relates to the hospital as a whole rather than to any individual service.

With regard to the question of whether the Health Board has merely temporarily suspended maternity services or otherwise it is conceded that this is an issue of fact. Counsel submits that the number of births at Monaghan General Hospital would and could be much greater than at present if a proper maternity service was provided.

While the Health Board's case is that it temporarily suspended the maternity services at Monaghan Hospital, counsel refers to the fact that insofar as reference is made by the Health Board to the terms in s. 3 (3) of the Health (Amendment) Act, 1996 which is referable to s. 38 (3) of the Act of 1970 that this being the case the Health Board's power, if exercised validly at all, should be an exercise of a 'discontinuance' power. Council refers to the fact that the Health Board through its Chief Executive stated that no decision in terms of s. 38 of the Health Act, 1970 had been taken and while the respondent Health Board is maintaining a maternity service at Monaghan General Hospital for operational reasons, it states that it cannot provide a delivery service. Counsel submits that the contention that there has been no decision of the Health Board under s. 38 of the Act of 1970 cannot be understood since it is clear that any of the other sections of the various Acts referred to in the first schedule of the Health (Amendment) (No. 3) Act, 1996 are reserved functions of the Health Board which would be of relevance to the discontinuance of suspension decisions. It is submitted that what the Health Board has done amounts to a discontinuance of the provision of maternity services for an indefinite period. It is submitted that this amounts to the discontinuance of the service which it is submitted the Health Board is not empowered to do. Counsel stresses that it is not clear what the "midwife led" services that are planned to be phased in at Monaghan Hospital amount to.

Counsel refers to the designation of 'Cavan/Monaghan Hospital Group' as something that appears to have arisen by reason of the 1993 reorganisation. Counsel states that there appears to be an issue as to whether or not Monaghan General Hospital is a hospital within the meaning of s. 38 of the Act of 1970 or whether it is merely a site of some part of a larger hospital known as the "Cavan/Monaghan General Hospital". Counsel submits that the Health Board cannot avoid the limitation on its powers contained in s. 38 of the Act by device of deciding to declare two hospitals to be one or one hospital group and thus create and maintain a fiction that services which were in practice discontinued at one hospital, in this case Monaghan Hospital, nonetheless continue elsewhere.

On behalf of the Health Board Mr. Gerard Hogan S.C. invites this court to find the difficulties which arose from a number of events which gave rise to the situation where it was not possible to continue with the maternity services at Monaghan General Hospital. He refers to the fact that to have a consultant there was proving problematic due to the limited number of births at the hospital. He submits that a quantum mass was necessary to make the unit viable. He submits that the board was not in a position to provide the consultant led maternity services. On this basis counsel submits that the board faced difficulties and that it cannot and should be forced to provide a service that it cannot provide or provide in safe way. Counsel submits that there was no conscious decision to achieve the result which has now been achieved. Counsel submits in the first place that in effect one has one hospital on two sites and that the decision of the Health was such as to maintain maternity services at this one hospital spread over two sites.

Dealing with the issue of the nature of the relief which is sought and whether mandamus should issue against the Health Board. Counsel submits that it should not in any event be faced with a situation where the court grants relief in the form of a declaration to the applicant. Counsel advances the fact that the decision in question giving rise to the suspension of the services in question at Monaghan General Hospital resulted from health and safety and insurance concerns. It is submitted that the Health Board cannot by a magic wand provide the services in question. Counsel submits that the Court should not grant a declaration either on discretionary grounds. Counsel poses the question if what has been done was ultra vires what is the Health Board supposed to do. It submitted that the Health Board is no position to act on foot of such a declaration.

Dealing with the issue as to the existence of one hospital on two sites, counsel refers to the affidavit of Mrs. McAnespie and indicates that the decision in question was taken by the board itself. It is conceded that this was not done pursuant to any specific statutory power but relates to a de facto amalgamation Counsel submits that if this court is minded to accept this submission that the applicant's case falls in limine. Counsel poses the question does the Act of 1970 ossify hospitals with the services. Counsel submits that there is nothing in the Act of 1970 to preclude the transfer of services. Counsel submits that if a hospital has two sites one can move the service from the one site to the other. Counsel submits that there is nothing in the Act of 1970 precluding the discontinuation of services. Further counsel submits that if there is anything in the Act of 1970 precluding such a discontinuance, that there is nothing in the Act precluding the temporary discontinuance of services. Counsel submits that in the instant case, there has been no discontinuance as such but a temporary suspension of services which the Health Board hopes will be resumed with a mid-wife lead service. Counsel concedes that the service in question which it is proposed to provide at Monaghan General Hospital will not amount to a consultant led delivery service.

Counsel further submits that the Act of 1970 is not restrictive as to the manner in which a service is to be provided. Counsel submits that a mid-wife led service still amounts to an in-patient service as contemplated by the Act of 1970.

Counsel refers to the scope of s. 38 of the Act of 1970. In this regard counsel refers to allay provisions of the Act of 1970. Dealing with the McMeel decision, counsel submits that in that case the Minister purported to give a direction under s. 38 which was a direction to discontinue services. The ministerial direction in that case was held to be ultra vires on the narrow basis relating to the provisions of s. 38(2) of the Act of 1970. It is indicated that this section contemplated a positive decision and not a negative decision. Counsel submits that this in essence is all that the McMeel case decided. Counsel submits that it addressed simply the provisions of s. 38(2) of the Act and indicated in that context what the Health Board could not do. Counsel submits that that decision has no application to present situation and that the provisions of s. 38(2) do not apply to the present case. Further counsel refers to s. 38 (3) and submits that this relates to premises and not to services. It is submitted that nothing in this sub-section applies to the discontinuance or discontinuation of a service. With regard to the observations of Griffin J. in the McMeel case counsel submits that what was stated by him in that case at p. 624 of the report where he indicated that no such provision was imputed in the Act of 1970 corresponding with the provisions of s. 11 of the Act of 1947 which made express provision for the discontinuance of any department of a hospital. He expressed the view that there was no power given to the Minister in that section to close a department of a hospital. Counsel submits that his observations in this regard are obiter in any event. Counsel submits that by the removal of s. 11 of the Act of 1947 that it does not follow that no such power is retained in the context of the Act of 1970. Counsel submits that there is a felonious inference being drawn from the repeal of s. 11 of the Act of 1947. It is submitted by counsel that it does not follow that the Minister does not have power or the Health Board does not have power to close down a department of a hospital. Counsel refers to the fact that the statutory predecessor of the Act of 1970 has been repealed. Furthermore counsel submits that the prohibition in question was sent to him in respect of premises and departments. On this basis it is submitted by counsel that anything short of the closure of premises can be done. It is submitted that all that s. 38 was addressed to control was the discontinuance of a premises. It is submitted that nothing in the Act exists such as to preclude the discontinuance of a service.

Counsel refers to s. 52(1) of the Act of 1970 and submits that once a service is provided within a Health Board region that there is no suggestion that it has to be provided at a particular place and in a particular manner. Counsel submits that any submission to the contrary would be absurd. On this basis counsel submits that there is nothing contained in s. 52(1) of the Act of 1970 which is of assistance to the applicants. Counsel further refers to the fact that s. 62 of the Act of 1970 does not refer to in-patient services. Counsel submits that on a proper construction of the Act of 1970, nothing in the Act is such as to preclude the discontinuing of in-patient maternity services at Monaghan General Hospital.

Without prejudice to these submissions counsel addresses the question has there been a discontinuance of the service in the sense concentrated for by counsel for the applicant by reference to s. 38(3) of the Act of 1970. Counsel submits that certain services in the form of anti-natal services are being continued at Monaghan General Hospital. What is not being provided is the traditional consultant led delivery service. Counsel submits that the circumstances in the instant case are such as to amount to force mageur. Insofar as it is expected that there would be a resumption of maternity services albeit in the form of mid-wife led maternity services in 2005, counsel submits that this does not amount to a discontinuance in a manner suggested by the applicants. Counsel submits on this basis that there has been in fact no ultra vires act on the part of the Health Board. Counsel submits that the legislation clearly authorised the Chief Executive Officer to take all steps as he saw appropriate in the circumstances. It is submitted that no health administrator in the position of the Chief Executive Officer could have taken any other decisions. In summary counsel submits that the Health Board did not act ultra vires.

In reply Mr. Fitzsimons addressed the issues raised by counsel for the applicant and submitted that the question of one hospital on two sites conflicts with the evidence put before the court by Mr. Robinson in his affidavit of the 7^th June, 2001. Counsel further submits that no such case has been advanced on behalf of the Health Board in its notice of opposition in these proceedings. Counsel refers to the services provided being mid-wife led services and it is submitted that in no way are the services in question reference to mid-wife delivery services. It is submitted that there is no evidence that deliveries will take place again at Monaghan Hospital and it is unclear as to the nature of the service that will be available in the hospital. Counsel stresses by reference to the McMeel case that the provisions of s. 38(3) did not permit the termination of services alone. It is submitted that if the board was entitled to act on the basis of s. 38(3) it did so in an erroneous manner and failed to follow the procedures set out in the section. It is submitted that there is no evidence of any consent on the part of the Minister. Counsel submits that the Health Board must provide the services in question. Counsel asks the question what was the point of vesting the hospitals in the Health Board if it was not going to run hospitals. Counsel submits that s. 38(3) of the Act of 1970 is such as to amount to a statutory restriction or the Health Board from discontinuing services. This, it is submitted includes maternity services. Counsel poses the question is it seriously suggested that the Health Board has the option to discontinue the services in circumstances where the Minister may not direct a Health Board to discontinue the services. Counsel submits that in the context of s. 38 of the Act of 1970 that the provision of hospitals must be equated with the provision of hospitals together with services therein. Counsel submits that one can call on (a) the provisions of s. 38(2) of the Act insofar as it is indicated by the Supreme Court in the McMeel case that the Minister was not entitled to give such direction. It is submitted that the Health Board cannot make such a decision. Counsel submits that once a service is provided in a hospital it cannot be taken from the hospital without effectively legislating for same. It is submitted that this is the entitlement of the Minister and not of Health Board.

With regard to the reliance by the Health Board on the Condon report and the views of Professor Bonner it is submitted by counsel that the Health Board cannot tie itself to the views of an eminent professor. It is submitted that at the time the Health Board had the option and could have sought extra staff as opposed to the taking of the road which it did. It was submitted that engaged in what it has described as a temporary suspension of services instead of taking a positive decision at the time.

CONCLUSIONS

In the first instance, I believe that it is clear from the evidence put before this court that the impugned decision in this case one which was taken in the light of prevailing circumstances and in particular having regard to the decision of the insurer's of the hospital to withdrawn insurance cover such as to effectively preclude the continuance of the maternity delivery services at Monaghan General Hospital. It is clear that the Health Board in question is providing such a service within its region and the essential issue that arises is whether it is precluded from discontinuing the services in question at Monaghan General Hospital, whether on a temporary basis or otherwise. It appears from the evidence before this court that the decision in question to temporary suspend the services in question in 2001 is one which in all likelihood will have permanent effect insofar as no indication exists whatsoever that there is any proposal to re-introduce the consultant led maternity service and in this regard, I refer to a delivery service to be included at Monaghan General Hospital. In this regard it is understandable that the applicants contend that the decision in question which was described as a temporary measure is one which has a degree of permanence. However, I accept on the basis of the evidence before this court that the decision taken at the outset was a decision taken in a situation of some emergency and was not intended to necessarily have permanent effect. It is clear that the Health Board seeks to provide some maternity service at Monaghan General Hospital and that this remains the plan in the circumstances of the mid-wife led maternity service to be introduced in 2005. Accordingly, I am satisfied that as matter stand the effect of the impugned decision has been one discontinuing the consultant led delivery service at Monaghan General Hospital in circumstances where it must be doubtful that such services will be re-instituted in the future.

With regard to the reliance by counsel for the applicants upon the authority of McMeel v. Minister for Health [1985] I.L.R.M. 616 I am satisfied upon reading of that case and in particular the judgments of O'Higgins C.J. and Griffin J. therein that the essential issue that was addressed on that appeal was the entitlement of the respondent Minister to direct the discontinuance of the services in question being the obstetrical and allied services. The Supreme Court made it clear that the power of the Minister under s. 38(2) of the Act of 1970 was positive in nature and did not entitle the Minister to direct the discontinuance of the services in question. The effect of the decision was such that any decision of a negative nature would fall to be taken by the Minister under the provisions of sub-s. 3 of that section and the succeeding subsections thereof. The judgment of Griffin J. insofar as it addressed the provisions of s. 11 of the Act of 1947 indicated the limitation on the power of the Minister by virtue of the repeal of that section by the Act of 1970. I do not consider that the judgment of Griffin J. is to be construed as restricting the power of a Health Board in relation to the provision of services under the Act of 1970 and in particular in relation to how it chooses to deliver those services provided it is meeting its overall statutory obligation. While the Minister may not have power under the Act of 1970 to "close a department of a hospital", I do not consider that a Health Board is restricted in relation to discontinuing services in a particular hospital provided it maintains the hospital in question as a hospital. It is clear that as time moves on the need for services may change. A Health Board operating a hospital which previously provided particular services and may have had an entire department devoted to the services in question, for example, the treatment of tuberculosis, may find that no requirement exists for such a service in the hospital in question today. In this regard it cannot be suggested that the Health Board would be obliged to maintain a service in circumstances where no demand existed for same.

With regard to the provision of maternity services, it is clear that the provision in question of such services arise in the context of the general obligations on Health Boards pursuant to the Act of 1970. Furthermore, in the context of s. 62 of the Act of 1970 certain obligations fall on Health Boards to make available without charge medical, surgical and mid-wife services for attendance to the health, in respect of motherhood of women who are persons with full eligibility or persons with limited eligibility. While the obligations in question are clear in this regard, it is to be noted that nowhere in the section is there any indication as to where the provision in question is to take place but is clear that the obligation is to provide such a service. I believe that this obligation must be construed on a rational basis enabling a Health Board to choose where the provision in question will take place as long as the decision that is taken in this regard is not such as to preclude the provision of the service for women residing in any part of its catchment area.

In conclusion I believe that the applicants have not satisfied this Court that the provision of maternity services at Cavan General Hospital is such as to breach any requirement of the Health Act of 1970 and furthermore I am satisfied that the decision in question taken in this case was not one precluded by the terms of s. 38 of the Act of 1970.

Were I to have held that there was an obligation to provide the services in question at Monaghan General Hospital I do not believe that that obligation could be set aside by merely deeming that hospital when taken together with Cavan General Hospital to constitute one hospital.

In conclusion I believe that the applicants have failed to establish an entitlement to the relief which they seek and in the circumstances I refuse this application.

Approved: Ó Caoimh J.