Ann O'Ceallaigh (applicant) v The Fitness to Practice Committee of An Bord Altranais and An Bord Altrainis (respondents).
Judicial Review - Declaration - Decision of the Fitness to Practice Committee of An Bord Altranais not to permit certain persons to attend hearing - Discretionary power of committee to hold hearing in public or private and to admit specified persons to attend the hearing - Committee must comply with the principles of natural and constitutional justice and apply fair procedures in relation to hearing - Nurses Act 1985, section 38(4).
The High Court (before Mr Justice Mc Cracken); judgment delivered 22 May 1998.
Procedures before a committee which is not specifically regulated by statute were for the committee to decide, subject to the overriding provision that it must comply with the principles of natural and constitutional justice and fair procedures in relation to the hearing. The court will not interfere with the exercise of this discretion unless this decision can be shown to be totally irrational or one which did not comply with natural justice.
The High Court so held in refusing the applicant a declaration that the Fitness to Practice Committee of An Bord Altranais had acted unlawfully in refusing to admit specified persons to attend the hearing.
Michael Forde SC and Barbara Hewson BL for the applicant; Richard Nesbitt SC and David Barniville BL for the respondents.
Mr Justice McCracken said that the applicant was a nurse and a domiciliary midwife against whom a complaint had been made, which complaint was the subject matter of a hearing before the Fitness to Practice Committee of An Bord Altranais. Following refusal by the committee to hold the hearing in public, further preliminary applications were made on behalf of the applicant, including inter alia an application that certain persons be permitted to attend the hearings before the committee. Mr Justice McCracken said that this application had also been refused and the applicant in these proceedings was seeking a declaration that the committee acted unlawfully in not permitting these persons to attend and also seeking an order to permit these persons to attend the hearing whenever evidence was being adduced.
Mr Justice McCracken outlined the professional qualifications of the specified persons, noting that the first argument forwarded on behalf of the applicant was that she was entitled to have such persons present, pursuant to the provisions of section 38(4) of the Nurses Act 1985, which states that when it is proposed to hold an inquiry under subsection (3) of that section, the person the subject of the inquiry and any person representing him have the opportunity of being present at the hearing. The applicant argued that the persons concerned were representing her within the meaning of this subsection and were therefore entitled as of right to attend the hearing.
Mr Justice McCracken said that the applicant was being legally represented before the committee and he therefore did not have to consider whether she was entitled to have arguments on her behalf put before the committee by some person who was not legally qualified. Mr Justice McCracken failed to see how two of the persons advanced by the applicant as independent expert witnesses could possibly be said to be representing a party as the whole point of calling these witnesses was they would assist the court as outside experts and not as interested parties only putting forward the view of the applicant. He noted that the third intended representative had no medical or nursing qualifications and he failed to comprehend how her expertise could be of assistance to the applicant and could not see how this person could be said to represent the applicant within the meaning of the section.
Mr Justice McCracken said that it was accepted on behalf of the applicant that the committee had a discretion whether to hold the proceedings in public or in private, and whether to admit specified persons to attend the hearing. He said that Mr Justice Barrington endorsed this principle in the Supreme Court in Barry v The Medical Council unreported, 16 December 1997) in relation to the Medical Council. He noted that in the present case the committee had exercised this discretion by refusing to allow the persons requested to attend the hearing.
Mr Justice McCracken said that procedures before a committee like the one in question, which were not specifically regulated by statute, were for the committee to decide, subject to the overriding provision that they must comply with the principles of natural and constitutional justice, and apply fair procedures in relation to the hearing. He continued that the exercise of this discretion was one with which he would not interfere unless the decision could be shown to be totally irrational or to be one which did not comply with natural justice.
Mr Justice McCracken indicated that there were two matters influencing him in saying that the committee had reasonable grounds for reaching their decision. Firstly, the patient in respect of whom the complaint had been made had expressed a strong desire that the matter should be held in private, a desire which the committee ought to have regard. Secondly, while the argument was made to the court that the presence of experts at the hearing was essential to advise counsel on technical matters as they arise, this case was not made to the committee. Mr Justice McCracken said on the basis of the application made in this regard, it was totally reasonable and rational that it was sufficient that the witnesses acquaint themselves with the evidence by reading the transcript.
Mr Justice McCracken considered whether it was a breach of natural justice or unfair procedure for these persons not to be present. It was argued on behalf of the applicant that due to the technical nature of the hearing, the presence of these witnesses was essential to assist and instruct counsel. Rejecting this argument, Mr Justice McCracken said that he was satisfied that the committee would adopt normal court practice if counsel was in any way experiencing difficulty in relation to technical matters, by either postponing further cross-examination to a later time or allowing a witness to be recalled for same. He concluded that there was no inherent unfairness in the experts not being present, provided they were given the transcript of the evidence and counsel were afforded the opportunity to consult with them before completing cross-examination and accordingly he dismissed the application.
Solicitors: MacGeehin & Toale (Dublin) for the applicant; Whitney Moore and Keller (Dublin) for the respondents.
Eimear McMahon
Barrister
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