Judgment delivered on the 21st day of December, 2011 by Denham C.J.
1. This is an appeal by A. O’C, the respondent/appellant, referred to as “the appellant”, from the order of the High Court (Kearns P.) made on the 9th June, 2010 directing that she be suspended from the Register pending the determination of the inquiry of the fitness to practice committee into the grounds of professional misconduct alleged against the appellant under s. 44 of the Nurses Act, 1985
2. An Bord Altranais, the applicant/respondent, referred to as “the respondent”, brought a special summons, directed to the appellant, to require the appellant to attend before the President of the High Court. The special endorsement of claim of the special summons recited a number of matters, including the following: the appellant is a person whose name is entered on the register maintained by the respondent, pursuant to the Nurses Act, 1985, referred to as “the Act of 1985”. At a meeting of the respondent on the 2nd March, 2010, the respondent decided, having satisfied itself that it was in the public interest so to do, to apply to the High Court pursuant to s. 44 of the Act of 1985 for an order that, for such time as the High Court may direct, that the registration of the appellant’s name on the register shall not have effect.
3. On the 9th June, 2010, the said special summons came on for hearing before the High Court. The High Court had before it a number of affidavits.
The High Court Order
4. The High Court ordered that the registration of the name of the appellant in the General Nurse Division and in the Midwives Division of the Register maintained by the respondent:
“shall not have effect pending the Inquiry of the Fitness to Practise Committee of the [respondent] into the fitness to practise of the [appellant] on the grounds of alleged professional misconduct.”
5. The High Court ordered that the appellant:-
“be restrained from engaging in the practice of nursing and the practice of midwifery pending the determination of the Fitness to Practise Committee of the [respondent] into the fitness to practise of the [appellant] on the grounds of alleged professional misconduct.”
6. The order of the High Court made provision that notice of the orders be given to the Minister for Health and Children, the Chief Executive officer of the Health Service Executive, any employer or prospective employer or registration body enquiring as to the registration status of the appellant, and any prospective client of the appellant enquiring as to the registration status of the appellant. Further, the respondent was given liberty to publish a statement on the on-line register that until further notice the registration of the appellant’s name in the General Nurse Division and in the Midwives Division of the Register shall not have effect and is suspended under s. 44 of the Act of 1985.
The High Court Judgment
7. In counsel’s note of the judgment of the President of the High Court of the 9th June, 2010, it is clear that the President commenced his judgment by reciting that this was an application under s. 44 of the Act of 1985, and reciting the terms of the section. The President then stated that although the written submissions filed by the appellant addressed the format of the proceedings, as the matter unfolded that was not part of or the basis of the legal argument. No issue arises as to the propriety of the application being brought in a summary manner.
8. The President of the High Court recited that Dr. Forde, Senior Counsel, for the appellant, raised a jurisdictional issue. He argued that s. 44 of the Act of 1985 implies some type of meaningful participation by the party against whom such an order is sought by the respondent when it is considering whether to bring such an application. The President stated that the second leg of counsel’s submission concerned the threshold to be reached, counsel had submitted that there is a higher duty than in other Acts, where the requirement is that a person must be of the opinion that an application should be made.
9. The President dealt with the second point first. He stated:-
“The second point is a very easy matter to deal with on the facts deposed to on which no issue was really joined. There was a long labour associated with the stillbirth of a child which gave rise to an inquiry and the details need not be set out. The child was born on 22 April 2007 to Ms. Jordan. The affidavit of An Bord Altranais sets out this in detail and in particular, in the affidavit of the deponent Ann Carrigy, who sets out that the facts are such that give rise to a concern on the Board’s part that an application under section 44 was necessary. I am satisfied that the threshold is met. The Board formed the view and it was satisfied that it was in the public interest to apply under section 44.”
10. The President then referred to the earlier history of the case, including undertakings not to practice given by the appellant in 2008 and 2009 and how four days into the fitness to practise inquiry a decision was made by the appellant to withdraw from the inquiry because of some perceived bias.
11. An application for judicial review on the issue of perceived bias was brought before the High Court. It was rejected by Hedigan J. The President of the High Court then recited that the matter was on appeal to this Court. This Court has given its judgment in that matter and rejected the appeal by the appellant.
12. The President of the High Court referred to the issue of delay, and stated it should be laid at the door of the appellant.
13. The President addressed the submissions alleging a right of the appellant to be involved in the initial considerations of the respondent under s. 44 of the Act of 1985. The President held:-
“I do not believe that the Court is required to be satisfied that there is an enlarged right to participate in the deliberations of An Bord Altranais in this early stage of the proceedings when the decision is made to initiate the process. This is clear from a recent decision which I gave in Al Sukhun v. The Dental Council on the 14th May, 2010, where I cited a passage from the earlier judgment in the [Ó C] case where Mr. Justice Geoghegan at page 133 dealt specifically with the decision to bring court proceedings and stressed that:
‘…there would never be an obligation to give prior notification before s. 44 proceedings were commenced. Section 44 of the Act of 1985, has been enacted with a view to preventing immediate danger to the public. That is the paramount consideration.’
Dr. Forde in his usual ingenious way is endeavouring to reverse the cart backwards into s. 44 to set a threshold in relation to the Board being satisfied. I am satisfied that the section means there is an entitlement to natural justice rights but that those rights of the [appellant] are limited to a right of notification of the meeting and to be furnished with the relevant information and to make representations in that limited context. There is a complaint that the documents were furnished late in the day and there is no note of a consideration for the application for adjournment. I have to take into account a number of factors and have considered them. First, I am satisfied that Nurse [O’C] was notified in a timely fashion. It is a significant logistical exercise to convene a board of this nature and it is totally unacceptable that her solicitor simply said that she had prior commitments. There is nothing contained in the affidavit which gives sufficient reason for her non-attendance. Even if I had any reservations on this, there is the extra background in that Nurse [O’C] herself gave an undertaking not to practise rather than be subject to a s. 44 application. The subject of the undertaking and the Inquiry is now the same. No proper basis for any adjournment was demonstrated and the [appellant] and her advisors were given proper notice of the board meeting.”
14. The President distinguished the case of Lawlor v. Geraghty [2010] IEHC 168 (Unreported, High Court, 20th May, 2010). He stated that everyone knew well what was on the agenda in this case. He continued:-
“In a different case, receiving information the day before might not be sufficient. This is a case where there had been a four day hearing. Nurse [O’C] had appealed to the Supreme Court. The subject matter to be dealt with was precisely the same as that dealt with at the meeting in May, 2008. Nobody was under the slightest doubt of that.
As regards the merits of the section 44, I am satisfied that this is an appropriate case, weighing up the public against the private interest and it hasn’t been suggested that Mr. Gleeson [counsel for the respondent] is incorrect about this. Taking into account all of the factors, I am satisfied it is in the public interest to make an order as sought. I will also grant the order to notify the HSE and the Minister for Health.”
Notice of Appeal
15. The appellant filed four grounds of appeal, being that the learned trial judge erred in fact and/or law as follows:-
“(i) Not acceding to Ms. [O’C]’s request that the hearing should be treated as an interlocutory application rather than the trial of the action (since an interlocutory order can have maximum flexibility – ‘as it considers appropriate’ – while a final order ‘does not provide for a lesser sanction’ than a complete strike off).
(ii) Holding that, in the circumstances, there was no audi entitlement of any kind before the [respondent] becomes “satisfied” that a s. 44 application should be made and, consequently, there was no need for the [respondent] even to consider the application for an adjournment of at least 16-20 hours or of any of the concerns held by Ms. [O’C] (mainly, the possibility of ordinary nursing work, working abroad and the position where other expecting mothers were insistent on engaging her for a home birth).
(iii) Ordering her to pay the costs, regardless of what the outcome might be in the current F.T.P. Inquiry into identical allegations and any appeal from its determination.
(iv) Rejecting an application that there should be ‘liberty to apply’.”
Submissions
16. Written submissions were filed on behalf of both parties, and oral submissions were made to the Court.
Motion
17. The appellant brought a notice of motion to the Court for leave to adduce further evidence at the hearing of this appeal. The Court allowed the evidence in de bene esse, without making a decision on its relevance.
Statute
18. Section 44 of the Act of 1985 provides:-
“(1) Whenever the Board is satisfied that it is in the public interest so to do, the Board may apply to the High Court for an order in relation to any person registered in the register that, during the period specified in the order, registration of that person's name in the register shall not have effect.
(2) An application under this section may be made in a summary manner and shall be heard otherwise than in public.
(3) The High Court may make, in any application under this section, such interim or interlocutory order (if any) as it considers appropriate.”
It is this section which is the basis for the respondent’s action, and which is in issue in this appeal. The order of the High Court on the 9th June, 2010, was that the appellant be suspended from the Register pending the determination of the inquiry of the fitness to practise committee, pursuant to s. 44 of the Act of 1985.
Decision
19. In the High Court, as is apparent from the judgment, the President held that no issue arose on the propriety of the matter proceeding in a summary manner. In this Court counsel for the appellant argued that he had not abandoned the interlocutory position. He argued that the High Court could make an interim or an interlocutory order, pursuant to s. 44(3) of the Act of 1985, and that is what he sought i.e. pending the hearing of the inquiry. He argued that the order was to suspend the registration of the appellant pending the inquiry, that it was not an interlocutory order but a final order under s. 44. He argued that there should also have been a proportionate order, i.e. an order only suspending the registration of the appellant from practising as a domiciliary midwife, but not as a general nurse. He argued that if such an order had been made under s. 44(3) of the Act of 1985, it would have been proportionate.
20. This aspect of the appellant’s situation, this new case, arose after the appellant had withdrawn her undertaking not to practise. The order of the President of the High Court was of the same breadth as her original undertaking. There was little or no material in her affidavit as to her personal circumstances in the High Court, such as was moved before this Court in the motion to adduce further evidence. Counsel for the appellant argued before this Court that there was insufficient material to warrant such an extensive order in the High Court, yet the proceedings in the High Court were the consequence of the appellant revoking her undertaking not to practise. It is a rather circular situation.
21. On the issue of the jurisdiction of the High Court, I would affirm the High Court order. This was a special summons, seeking an order pursuant to s. 44 of the Act of 1985. This invoked the jurisdiction of the High Court. The summons would have allowed orders under s. 44(1), and/or s. 44(2), and/or s. 44(3). It was clear from the papers before the High Court that the respondent was seeking a full order pending the determination of the Inquiry of the Fitness to Practise Committee. Consequently, I would dismiss the appeal on this ground.
Audi Alteram Partem
22. Counsel for the appellant also submitted an argument of audi alteram partem. This arose in the following context. On the 22nd May, 2008, on her being notified of the respondent’s intent to make an application under s. 44 of the Act of 1985, the appellant voluntarily agreed not to practise her profession. Her counsel submitted that this was provided that the fitness to practise inquiry was conducted expeditiously. On the 5th May, 2009, the inquiry commenced. On the 8th May, 2009, the appellant raised objections of objective bias. Her objections were rejected, and on the 6th July, 2009, she commenced a judicial review. On the 13th October, 2009, the High Court (Hedigan J.) rejected her claim, and her appeal to this Court in the matter has been rejected. On the 19th February, 2010, the appellant advised the respondent that she was no longer bound by the undertaking not to practise which she had given previously. On the 24th February, 2010, the respondent advised her that it would meet on the 2nd March, 2010, at 3.30 p.m. to consider applying for a s. 44 order, and invited the appellant to attend. On the 1st March, 2010, the respondent sent the appellant the documentation it was intending to consider at the meeting. The appellant’s solicitor requested an adjournment. On the 2nd March, 2010, the respondent met in the appellant’s absence and decided to seek a s. 44 order. This decision was taken in the circumstances that the appellant had withdrawn her undertaking not to practise nursing and indicated she intended returning to practise on the 1st March, 2010. The appellant’s solicitors had represented her in 2008 when the same issues arose.
23. Section 44 of the Act of 1985 provides a mechanism for the respondent, in the public interest, to apply to the High Court to suspend the registration of a nurse. Clearly there are a wide range of circumstances which may arise in such situations. There may be acute emergencies, and, on the other hand, cases where time is not so important. Thus, there is no obligation on the respondent to give prior notification before s. 44 proceedings are commenced. I would agree with and adopt the words of Geoghegan J. in Ó C v. An Bord Altranais [2000] 4 IR 54 where he stated at p. 133:-
“The position in relation to a decision by the body to bring Court proceedings under s. 44 of the Nurses Act, 1985, was to be viewed quite differently, in my view. […] There would never be an obligation to give prior notification before s. 44 proceedings were commenced. Section 44 of the Act of 1985, has been enacted with a view to preventing immediate danger to the public. That is the paramount consideration. […] The natural justice rights of Ms. [Ó C] must be balanced against the public safety factors and the terms of the section itself would seem to me to achieve that balance with the result that it is not appropriate to superimpose some natural justice rights prior to the institution of proceedings.”
Consequently, I would dismiss the claim that there was a breach of audi alteram partem.
Notification
24. What is raised in this appeal, in effect, is whether the notification to the appellant of the proposed s. 44 procedure was sufficient. This issue arose in circumstances where the appellant has said on affidavit that she wished to provoke an application to court. In all the circumstances, where she had been notified on the 24th February, 2010, and where she was apparently proceeding to revoke her undertaking, there was good reason for the respondent to proceed on the 2nd March, 2010, and, in the circumstances, the notification was reasonable. Of course, the appellant would have a full opportunity to respond in court. Thus, I would dismiss the appeal on this ground, also.
Liberty to apply
25. The appellant also submitted that the High Court should have granted liberty to apply. It was submitted that the concern of the respondent was that the appellant not practise domiciliary midwifery. The order, it was submitted, should have been proportionate, that s. 44(1) is draconian, and so the principles of proportionality should have been applied. It was submitted that it was an error of law of the President of the High Court to refuse to give liberty to apply.
26. There is some doubt as to the extent, if any, of the submissions before the High Court seeking a more limited form of order, or to grant liberty to apply. However, I have considered the matters raised by the appellant.
Conclusion
27. In all the circumstances, on the facts before the High Court, I am satisfied that no case has been made out that there was any error made by the High Court.
28. For the reasons given, I would dismiss the appeal.
