O'Ceallaigh v. An Bord Altranais [1998] IEHC 80 (22nd May, 1998)

JUDGMENT of Mr. Justice McCracken delivered the 22nd day of May 1998. 1. The Applicant is a nurse and a domiciliary midwife against whom a complaint has been made, which complaint is the subject matter of a hearing before the Fitness to Practice Committee of An Bord Altranais. The Committee sat initially on 9th March, 1998 on which day an application was made to the Committee on behalf of the Applicant to have the hearing held in public. This Application was refused and the hearing was adjourned to 11th March, 1998. On that day further preliminary applications were made on behalf of the Applicant, including, inter alia, an application that Ms. Mary Cronk, Professor Leslie Page and Miss Marie O'Connor be permitted to attend the hearings before the Committee. This Application was again refused, and in these proceedings the Applicant seeks a Declaration that the Committee acted unlawfully in not permitted these persons to attend, and also seeking an Order directing the Committee to permit those persons to attend the hearing whenever evidence is being adduced. 2. Ms. Mary Cronk is a midwife practising in the United Kingdom who has been in clinical practice for thirty years, and is, inter alia, a member of the Midwifery Committee and the Professional Conduct Committee of the United Kingdom Council for Nursing Midwifery and Health Visiting. Professor Leslie Page is Professor of Midwifery at the Wolfson Institute of Health at Thames Valley University and is attached to a clinic at Queen Charlotte's Hospital in London. The Applicant proposes to call these persons as expert witnesses before the Committee. Ms. Marie O'Connor is a research sociologist who has produced a report for the Department of Health entitled "Women and Birth: a National Study of Intentional Home Birth in Ireland", and is also the author of a book entitled "Birth Tides". I am told it is not intended to call her as a witness, but that she is advising the legal representatives of the Applicant. 3. The first argument put forward on behalf of the Applicant is that she is entitled to have these persons present pursuant to the provisions of Section 38 (4) of the Nurses Act, 1985 . That Section reads:- "When it is proposed to hold an Inquiry under subsection (3) of this Section the person who is the subject of the Inquiry shall be given notice in writing by the Chief Executive Officer sent by pre-paid post to the address of that person as stated in the register of the nature of the evidence proposed to be considered at the Inquiry and that person and any person representing him shall be given the opportunity of being present at the hearing." 4. The Applicant argues that the three persons concerned are representing her within the meaning of this subsection, and therefore are entitled as of right to attend the hearing. The Applicant is being represented before the Inquiry by a solicitor and two senior counsel, and therefore I do not have to consider whether she would be entitled to have arguments on her behalf put before the Committee by some person who was not legally qualified. Indeed, the Applicant states that Miss Cronk and Professor Page are being put forward as independent expert witnesses on her behalf. I cannot see how it could possibly be argued that an independent expert could be representing a party, as the whole point of the calling of these witnesses is that they will assist the Committee as outside experts, and not as interested parties only putting forward the point of view of the Applicant. The position of 5. Ms. O'Connor is that the present intention of the Applicant is that she will not be called as a witness, and she has no medical or nursing qualifications. Indeed, I find it difficult to understand how any advice which is within her expertise could be of assistance to the Applicant in meeting a case in which she is alleged to have acted unprofessionally in the treatment of a specific patient. The allegations against the Applicant all relate to her ability as a nurse and midwife, and not to sociological matters. Again, I cannot see how 6. Ms. O'Connor could possibly be said to represent the Applicant within the meaning of the Section. 7. It is accepted on behalf of the Applicant that the Committee has a discretion as to whether to hold the hearing in public or in private, and further has a discretion as to whether to admit specified people to attend the hearing. The whole question of such discretion was considered by the Supreme Court in relation to the Fitness to Practice Committee of the Medical Council in the recent case of Barry -v- The Medical Council in which judgment was delivered on 16th December, 1997. At page ten of that judgment Barrington J. said:- "In these circumstances the only question is not whether the Committee has the right to conduct its proceedings in private but whether it has a discretion to conduct them in public. While the Act contemplates that proceedings before the Fitness to Practice Committee shall be in private it does not require it. I can see no reason why the Committee should not hold its proceedings in public if all parties were agreed and if the Committee itself thought it was the proper thing to do. While therefore the normal procedure before the Committee is to hold its proceedings in private I see no reason why it should not hold its proceedings in public in a proper case. In other words I think the Committee has a discretion in this matter." 8. In the present case the Committee have exercised this discretion by refusing to allow the persons requested by the Applicant to be present. The procedures before a Committee such as this, where they are not specifically regulated by statute, are for the Committee to decide, subject always to the overriding provision that they must comply with the principles of natural and constitutional justice, and must apply fair procedures in relation to the hearing. An exercise of discretion of this nature is one with which I would not interfere unless the decision can be shown to be totally irrational or to be one which does not comply with natural justice. 9. It is urged on me that this decision was irrational, as it was expressed by the Committee to be based on the desire for privacy, while, on the other hand, the Committee indicated that the expert witnesses could be furnished with the transcript of the hearing as it took place. The argument is made that, from the point of view of preserving privacy, there is no difference between allowing the persons to be present and furnishing them with the transcript. While I accept that this is so, I do not think that this fact makes the decision irrational. 10. There are two other matters which influence me strongly in saying that the Committee had reasonable grounds for reaching their decision. The first of these is that the patient in respect of whom the complaint was made has strongly expressed her desire that the matter should be held in private and there should be no publicity. This, of course, is most understandable, and it is a wish to which I think the Committee not only are entitled to have regard, but ought to have regard. The second point that influences me is that, while the argument has been made to this Court that the presence of the experts at the hearing is essential to advise Counsel on technical matters as they arise, particularly in the course of cross-examination, no such case was made to the Committee. There is exhibited before me a transcript of the proceedings on the morning of 11th March which this point was argued. The basis of the Application to the Committee is set out at page seven of the transcript as follows:- "The reason I say this is that those two ladies will be giving evidence for Ann O'Dowd, I beg your pardon, Ann O'Ceallaigh, and they will want to hear the evidence that is being given against her. It is just simply not good enough that they get the transcript and then come in cold on the transcript. They want to see what evidence is being given against Ann O'Ceallaigh and then they can give their evidence accordingly. So, it is just simply in order that Ann gets a fair hearing. That is my application, to admit those two ladies." 11. On the basis of that Application it was totally reasonable and rational for the Committee to rule that the witnesses could acquaint themselves with the evidence by reading the transcript, and that they did not want to depart from their normal rule that the hearing must be in private. 12. The final point I have to decide is whether, notwithstanding the fact that it was not raised before the Committee, it would be a breach of natural justice or an unfair procedure for these persons not to be present. The case made to me is that the hearing will involve very technical matters, and that to enable Counsel to understand these matters and cross-examine in relation to them, it would be necessary to have the experts present so that they could assist and instruct Counsel. It is also submitted that it would be most unsatisfactory for the experts to be sitting outside the hearing, and for Counsel to have to be running in and out to obtain advice. This seems to me to envisage the prospect of the experts sitting beside Counsel and, in effect, having a consultation with Counsel and directing them what questions to ask in the middle of the hearing. This would certainly not be the procedure in Court, for, while we all know that expert witnesses may send notes up to Counsel, it is not the normal practice for Counsel to actually consult with an expert witness in the course of a cross-examination. The normal practice in Court is that if Counsel is in any way experiencing difficulties in relation to technical matters, he will ask the Court for leave to come back to that matter when he has taken instructions, and it would be very unusual for him to take those instructions there and then. Courts will always ensure that justice is done by giving Counsel time to take instructions, perhaps by postponing further cross-examination until the next day or by allowing a witness to be recalled for further cross-examination. The Committee has made it quite clear that it will also act in this way, and in fact it is far more in the interests of the Applicant that her expert advisers should have time to consider and discuss with Counsel any difficult technical points, rather than to have to give a whispered advice to Counsel who are already on their feet. I have no doubt that there is no inherent unfairness in the experts not being present, provided they are given the transcript of the evidence, and Counsel are afforded an opportunity to consult with them before completing cross-examination. I have no reason to think that Counsel will not be given ample opportunities to take advice from their expert witnesses and this is a sufficient guarantee of fair procedures. 13. Accordingly I will dismiss this application. © 1998 Irish High Court BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII