Judge grants midwife right to challenge court ban

A home-birth midwife's legal battle to resume her suspended nursing career will continue in the High Court next week

A home-birth midwife's legal battle to resume her suspended nursing career will continue in the High Court next week. After a closed hearing in the Four Courts yesterday, Mr Justice Smyth ordered that the challenge of a self-employed domiciliary midwife, Ms Ann O Ceallaigh, to a court order banning her from working should be heard next Thursday.

Ms O Ceallaigh, of Temple Crescent, Blackrock, Co Dublin, is seeking to overturn an interim injunction granted on August 1st to An Bord Altranais restraining her from practising as a homebirth midwife pending the outcome of a disciplinary inquiry.

Mr Justice Smyth also granted her request for a judicial review of proceedings instituted against her by the board which, she claims, failed to follow proper procedures before applying to the court to suspend her practice.

Judge Smyth said it would be up to the judge hearing the judicial review to decide whether or not it would be heard in public.

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Ms O Ceallaigh claims the case against her is based on allegations of two nursing and medical executives in the Rotunda and Holles Street maternity hospitals.

Yesterday her counsel, Dr Michael Forde SC, asked to have her application heard in public on the grounds that an existing restriction on publicity was unconstitutional and breached the European Convention of Human Rights.

Dr Forde said O Ceallaigh his client would seek a declaration that the board failed to comply with the requirements of natural and constitutional justice, rendering its decision to seek the August 1st injunction unlawful and beyond its powers.

He said the board was allowed under Section 44 (2) of the Nurses Act, 1985, to conduct inquiries in order to be "satisfied" it was in the public interest to seek such an injunction, and since no such inquiries involving Ms O Ceallaigh had been made the board had deprived itself of locus stand to proceed against her.

He said Ms O Ceallaigh would be asking the court to declare unconstitutional the provision in the Act, stipulating the proceedings "shall be heard otherwise than in public".

"The practicality of the matter is that this particular issue has been all over the English newspapers in the last two weeks and all over the Irish papers within the past week," Dr Forde said.

Dr Forde said the proceedings brought by Ms O Ceallaigh had been drafted in a particular way which would allow them to be conducted in a manner that would protect the only legitimate confidences: the identities of four mothers, three of whom were prepared to identify themselves by giving evidence, and only one of whom was not a client of Ms O Ceallaigh's at the time and whose identity had been deliberately protected in documentation.

O Ceallaigh's application went ahead in public. Dr Forde said the board had come to court looking for the matter to be heard in camera after having instituted its proceedings in an ex parte fashion. "Having chosen to go by stealth without any notice of its initial application to my client, it now wants to bury any further proceedings in a cloak of confidentiality."

Mr Ger Hogan, council for the board, said he had addressed the court only on the question of procedure to be followed. At the very least the application for judicial review should be heard in camera. Any question regarding the substantive trial was for another day.