Supreme Court of Ireland Decisions

1. This is an appeal by An Bord Altranais the applicant/appellant (hereinafter referred to as the applicant) from a judgment of the High Court, Morris P., delivered ex tempore on the 18th May, 1999. It was submitted on behalf of the applicant that the President erred in his interpretation of section 44(1) of the Nurses Act, 1985. At issue is a point of law.

2. There has been extensive litigation between the parties. In special summons proceedings the applicant applied for an order pursuant to section 44 of the Nurses Act, 1985 (hereinafter referred to as the Act of 1985) which effectively sought a suspension of Ann O’Ceallaigh, the respondent (hereinafter referred to as the respondent) from practising as a midwife. An order was originally granted ex parte by Costello P. on 1st August, 1997. The applicant claimed:

3. The order of Costello P. on 1st August, 1997 stated:

4. Liberty was given to inform various persons, and it was then stated:

5. There have been many court hearings on this and related proceedings. Morris P., (unreported, High Court, 18th May, 1999) described the situation thus:

6. The learned President then held:

7. Against that judgment and order the applicant has appealed on the following grounds:

8. The applicant also appealed against the order for costs.

9. It was submitted on behalf of the applicant that the President erred in law in his interpretation of section 44 of the Act of 1985. It was submitted that the President erred in his determination that the court has to be satisfied at the time of the hearing, on 18th May, 1999, that the statutory precondition is met i.e. that the Board at that time is satisfied that it is in the public interest to make the application to the High Court.

10. Counsel for the applicant sought:

11. Counsel for the respondent, Ms. Barbara Hewson, B.L., submitted that the President of the High Court had indicated to the applicant that they could make a fresh application under section 44 to the High Court. Yet, they continued with this appeal and did not reapply to the High Court. Instead, the applicant has appealed to this court and invited this court to make relevant orders. Counsel pointed to the time involved and to the fact that the applicant had taken no steps in the months since the order of Morris P., on 18th May, 1999.

12. Counsel for the respondent informed the court that the first inquiry had been completed by the Fitness to Practice Committee, that the Committee had exonerated the respondent but that recommendations of the Committee are being judicially reviewed on the application of the respondent. The three other complaints and inquiries have been adjourned pending the first complaint being processed and matters litigated in the courts.

13. On the issue of the construction of section 44 of the Act of 1985, counsel submitted that the wording of the section is in the present tense. The section refers to the fact that “the Board is satisfied” and that this is the interpretation which is applicable at the hearing in court.

14. This appeal involves the construction of section 44 of The Nurses Act, 1985 which states:

15. This statutory relief may be utilised as a form of statutory injunction. It is stated that an order may be made “during the period specified in the order”. It is a summary procedure. It is an action which in its interim or ex parte use may be a rapid procedure to meet an urgent situation. Thus, whilst in some cases an application may commence without notice in others notice will be given. In some instances there may be an interim order and in others an interlocutory order or orders. The fairness and justice of the procedure is overseen by the Court - to whom the application is made.

16. Insofar as the President indicated that the Board had to be satisfied that it is in the public interest so to do on the original application and at a later date on a hearing of the application I would allow the appeal. I would set aside his determination that:

17. The words of the section

18. The procedure is severe - it may order a person (as here) to cease working. In 1997 Costello P. approached the application with care, for while granting the order ex parte, he ordered.

19. The section does not anticipate a situation where an application made in 1997 is heard in 1999. It anticipates a situation where an application is heard and determined within a reasonable time. If there has been a considerable delay and a developing situation and facts, depending on the circumstances, there may be a responsibility on a Board to meet the changing situation with fresh evidence. This does not mean that the court does not have jurisdiction to deal with the application. It means that in the absence of updating evidence from the Board and in light of current information from an applicant, the court may resolve a conflict on the evidence against the Board. For example, if the Board had sought an order suspending registration of a person who then filed affidavits directly denying the evidence of the Board, it may be a responsible act of the Board to react to that evidence. If there is conflicting evidence before the court it is for the court to determine the issue. Where there is a conflict, and where, as here, there is a considerable delay, it would appear appropriate for a professional body to address the changed or changing situation and/or conflicting evidence. It was this changing situation which the President addressed in his judgment. Consequently, I am satisfied that the President was correct in his determination:

20. The extensive delay in this matter and the widespread litigation between the parties is a matter of concern. At issue are proceedings raising matters of public interest and matters affecting a person’s right to work. It would be advisable where there is a multiplicity of litigation for it to be consolidated or taken together. Clearly it would be beneficial if there was a modern system of case management of such cases.

21. On the issue of the interpretation of section 44 of the Act of 1985, I would set aside the judgment as stated. In addition, the applicant sought that the matter be remitted to the High Court so that the High Court could consider making an order under section 44 of the Nurses act, 1985. The learned President refused to make the order sought. There is no extant order under section 44. Years have elapsed since the original application on 1st August 1997. There has been extensive litigation. Time has passed also since the learned President’s order on 18th May, 1999 and no further application under section 44 has been made by the applicant. The President left open the possibility of the applicant applying for a fresh order under section 44 of the Nurses Act, 1985 when he concluded:

22. In view of the considerable time which has elapsed since the original application for a section 44 order and the extensive litigation over the past few years it is clear that the situation in the year 2000 is different to that in 1997. Consequently, I would not remit these proceedings back to the High Court. The applicant may, of course, make an application pursuant to section 44 of the Act of 1985 at any time to the High Court.

23. Consequently, I would dismiss the appeal for the reasons stated.

24. Several parties have appealed on issues of costs against the order of the High Court. These matters were adjourned by this court until after the delivery of the decision of the court on the issue of law on the appeal.

25. An Bord Altranais or, in the English language, the Nursing Board (hereinafter referred to as the Board) was set up pursuant to s.6 of the Nurses Act, 1985 “to promote high standards of professional education and training and professional conduct among nurses” and to fulfil the other functions assigned to it by that Act. One of the statutory functions of the Board is to maintain a register of nurses (see s.27 (1)). Where a nurse has been found by the Fitness to Practice Committee of the Board (on the basis on an inquiry and report pursuant to s.38 of the Act of 1985) to be guilty of professional misconduct the Board may in that or other specified events, decide that the name of the nurse should be erased from the Register or that, during a period of specified duration registration of the person’s name in the Register should not have effect. The nurse to whom such a decision relates may within 21 days of the date thereof apply to the High Court for cancellation of the decision.

26. Ann O’Ceallaigh is and was at all material times a nurse whose name was included in the Register maintained by the Board as aforesaid.

27. Between the 27th September, 1996 and 26th June, 1997 the Board or the Fitness to Practice Committee thereof received complaints about the Respondent or applications for inquiries into her fitness to practice nursing on the grounds of alleged professional misconduct.

28. At a special meeting held on the 31st day of July, 1997 the Board made the decisions following:-

29. The Special Summons herein was issued on the 1st day of August, 1997 and grounded on the affidavit of Eugene Donoghue sworn on the same date. The material relief claimed in that summons was as follows:-

30. Pursuant to that Summons an ex parte application was made to the then President of the High Court, Mr Justice Costello, and on that application he made orders which included the following:-

31. The Respondent did not apply to have the order aforesaid set aside and did not adduce any evidence at the hearing of the Summons on the 13th of August, 1997 to contest the facts set out in the affidavit of Eugene Donoghue. On the inter partes hearing, the Summons was adjourned to the 13th day of October, 1997 and an order was made by the President restraining the Respondent “pending the hearing of this matter from engaging in the practice of midwifery” . The hearing of the summons on the 13th day of October, 1997 was anticipated by Notice of Motion issued by Ms O’Ceallaigh on the 29th September, 1997 and returned for hearing on the 2nd day of October, 1997 on which day it was heard by Mr Justice Moriarty.

32. In that Notice of Motion Ms O’Ceallaigh sought to have the summary proceedings dismissed and what is described as “the interim injunction” discharged for the reasons set out in the Notice of Motion in the following terms:-

33. It is clear from the order made by Mr Justice Moriarty on the 3rd October, 1997 that both the summons and the motion had been heard by him on that and the previous day. Moreover it would appear that both the Summons and the Notice of Motion were heard primarily on the evidence given on affidavit by Mr Donoghue in two affidavits, one dated the 1st day of August, 1997 and the other dated the 1st day of October, 1997, and two affidavits of Ms O’Ceallaigh, each dated the 26th day of September, one of which was sworn in other proceedings but incorporated by reference into the proceedings commenced by way of Special Summons.

34. In an ex tempore, but comprehensive, judgment delivered on the 3rd day of October, 1997, and in rulings made during the course of the oral submissions of which a stenographic record was made, Moriarty J ruled on the issues canvassed before him as follows:-

35. First, he accepted that there was or might have been some measure of infirmity in the form of the Special Summons by which the proceedings were instituted. He did say, however, whilst not deeming it necessary to do so he would, insofar as it was required, deem it a case in which the interests of justice would be met by invoking Order 124 of the Rules of the Superior Courts.

36. Secondly, he considered the nature and details of the complaints made to the Board and the response made by Ms O’Ceallaigh thereto in the affidavits sworn by her. He did not purport to make any determination on the substance of the complaints.

37. Thirdly, he had regard to the fact that some fourteen expectant mothers were then currently desirous of being patients of Nurse O’Ceallaigh and were desirous of having her services during their pending confinements.

38. Fourthly, he assessed a variety of criteria in determining whether the balance of justice and convenience required the granting or withholding of an injunction. In that connection he expressly referred to “the potentially and very considerable seriousness of the issue that arose in relation to the twins” .

39. Fifthly, he concluded by saying:-

40. By motion dated the 9th day of December, 1997 Counsel on behalf of Ms O’Ceallaigh applied on the 16th day of December, 1997 for an order discharging the injunctive orders made herein. Counsel on behalf of Ms O’Ceallaigh relied on eight grounds as bases for the discharge of the said orders. Those grounds were dealt with seriatim in the judgment of Mr Justice Kelly which was delivered ex tempore on the 17th day of December, 1997. The arguments made to the Court and the decisions thereon may be summarised as follows:-

41. With regard to permitting other patients to avail of the services of Ms O’ Ceallaigh, Mr Justice Kelly refused to make any such order unless and until the persons concerned read the complaints made against her and made a fully informed judgment thereon. Having done so they were entitled to notify the solicitors on behalf of the Board and then the order of restraint would be varied so as to permit them to avail of the services. Between 1997 and April, 1999 a number of orders were made relaxing further the restrictive order made by Mr Justice Moriarty on the 3rd October, 1997 and by Mr Justice Kelly on the 17th December, 1997 in ease of particular patients of Ms O’Ceallaigh.

42. By Notice of Motion dated the 29th day of March, 1999 and grounded on the affidavit of Mr Colm McGeehan, Counsel on behalf of Ms O’Ceallaigh, applied to the High Court on the 26th April, 1999 for the orders following:-

43. Apart from commenting upon the hardship which the order imposed upon his client Mr McGeehan pointed out in paragraph 7 of his affidavit:-

44. The learned President refused the relief sought. In his judgment delivered on the 13th day of May, 1999 he examined the history of the matter and in relation to what he described as “the extraordinary length that this matter has been hanging fire” he said:-

45. It must be emphasised that he made that comment in the context of explaining that Nurse O’Ceallaigh was fully entitled to exercise and invoke all of her legal rights.

46. As to the failure of the Board to “satisfy the statutory prerequisites for commencing the proceedings” the President distinguished between an obligation on the Board to satisfy itself that an application was necessary “in the public interest ” before the commencement of the proceedings, which he held had been discharged but also on the substantive hearing of the summons which he held had not taken place. In those circumstances he fixed the 18th of May for the hearing of the Special Summons.

47. In an ex tempore judgment of that date the President once again reviewed the material facts and in particular the complaints received by the Board between September, 1996, and June, 1997, and of those complaints he said:-

48. As to issues arising on the substantive proceedings the President said:-

49. The President held that the Board was bound to reconsider the evidence available to it as at the date of the hearing and not to rely on the information it received at the date when the complaints were made. He accepted that the Board had not reviewed the position and accordingly refused the relief claimed. He said that:-

50. The President commented further as follows:-

51. It was from that judgment and the order made thereon that the Board has appealed to this Court.

52. Despite the lengthy, and somewhat confusing, history of the matter the issue which arose in these proceedings and on this appeal reduces itself essentially to the proper construction of s.44 of the Nurses Act, 1985. Subsection (1) of that section confers a particular right on the Board to apply to the High Court. Subsection (2) prescribes the procedure by which the application may be made and the manner in which it may be heard. Subsection (3) defines the powers of the Court under the Section in the following terms:-

53. The only power of the Court under the section is to grant injunctions. That in itself is unusual. The fact that such relief may be sought and obtained in a summary manner, that is to say, on a Special Summons, is even more surprising. Reading the Act of 1985 as a whole it would seem that a purpose, but not necessarily the only purpose, of s.44 was to enable the High Court, on the application of the Board, effectively to suspend a nurse whose conduct is the subject matter of an inquiry under s.38 of that Act. Certainly s.44 is not in terms related exclusively to s.38.

54. The key to the interpretation of the section, as it relates to the present matter, is to be found in the procedure prescribed for bringing an application thereunder. It is to be brought in a summary manner. It is clear - and both parties agreed - that “in a summary manner” means in proceedings instituted by way of Special Summons. It follows that the application is brought, for whatever relief, by the institution of the special proceedings. The application under the Section is brought by the issue of the summons. The Board is empowered by subsection (1) to “apply to the High Court” and subsection (2) provides that “an application under this section may be made in a summary manner” . In my view it follows there is but one application and that is by the institution of the summary proceedings. If the Board is required to form an opinion or to satisfy itself as to where the public interest lies then it is on the institution of the proceedings that such a decision must be made. It does not seem to me that the Section relates the attitude or decision of the Board to any other time.

55. In my view once the proceedings were instituted it was a matter for the Court to make “such order as it (the High Court) considers appropriate” . The High Court would take on itself the onerous task of weighing whatever concerns, complaints or reports were put before the Board by way of evidence of alleged misconduct and any potential danger to “the public interest” as against the undoubted and immediate injustice to a nurse who would be precluded wholly or in part during a limited or specified period of time from carrying on her or his professional duties.

56. The Summons in its terms expressly sought an order restraining Nurse O’Ceallaigh from practising her profession pending the outcome of the inquiry then pending pursuant to s.38 of the Act of 1985. Unfortunately that particular plea seems to have been ignored in the course of the proceedings which were heard in the Autumn of 1997. Whilst orders were made by Mr Justice Moriarty and Mr Justice Kelly restricting (but not precluding) Nurse O’Ceallaigh from her professional activities, the duration of the orders was expressed to be “pending the hearing of this matter” rather than pending the hearing of the disciplinary inquiry or any specified period of time. Indeed it would seem that at different stages it was apprehended that the Court itself would conduct some form of disciplinary inquiry. Clearly this would be inappropriate as the legislature has expressly conferred that jurisdiction on the Nursing Board with an appeal, where appropriate, to the High Court. The only function of the High Court on the hearing of the summons would be to determine whether that Court considered it appropriate in the public interest to grant an injunction.

57. In my view the President erred in concluding that the Board was required to review the complaints originally received by it or any additional information which had become available in the proceedings or otherwise since the institution thereof with a view to satisfying itself that it continued to be in the public interest to apply to the Court for an order restraining the activities of the Respondent. Whether the passage of time has affected the quality of the complaints or whether the response of Nurse O’Ceallaigh in the affidavit sworn by her or the exhibits contained therein or any additional information gleaned from the other evidence would be sufficient to sway the Court in the exercise of its judicial discretion to grant or to withhold the orders sought is a matter for the Court. The application for the statutory relief was properly before the Court. It was for the Court to determine on the evidence adduced whether an injunction limited in time or in scope should be granted or withheld. That was a duty which, in my view, the learned President was bound to exercise irrespective of the current opinion (if any) of the present Board pursuant to s.44 aforesaid.

58. The fact that the interlocutory relief granted inter partes by Judges Moriarty and Kelly were expressed to continue until the hearing of the matter meant that those injunctions have now expired irrespective of the decision of the President. There is accordingly no restraint on Nurse O’Ceallaigh pursuing her professional activities. I would feel bound as a matter of law to remit the matter to the President of the High Court to reconsider whether in his judgment an injunction should be granted in the present proceedings although I appreciate the wisdom of the President in proposing that, if an injunction was to be sought at this stage, it might be desirable for the Board to review the matter, and if appropriate to institute fresh proceedings.

59. I would allow the appeal.