A domiciliary midwife from Dublin emerged victorious at the Supreme Court yesterday following lengthy and expensive litigation initiated after An Bord Altranais (the Nursing Board) secured an injunction which had restrained her from practising for almost two years.
The proceedings to date have cost well in excess of £1 million but the Supreme Court has deferred until later this month the issue of who will pay those costs.
By a 4-1 majority yesterday, the Supreme Court upheld an appeal by Ms Ann O Ceallaigh, Temple Crescent, Blackrock, Co Dublin, against the High Court's refusal to discontinue an inquiry by the Fitness to Practise Committee of An Bord Altranais into three complaints against her.
The court found the board had not followed fair procedures when initiating the inquiries and in particular had not informed Ms O Ceallaigh of the complaints and given her an opportunity to respond.
The court also, by a similar majority, dismissed an appeal by the Nursing Board against another High Court decision of May 1999 lifting an injunction granted in August 1997 which had restrained her from practising. The order had been varied to allow some 40 women to avail of Ms O Ceallaigh's services.
However, the court rejected a submission by Ms O Ceallaigh that the board was required to give notice before applying to the High Court for an order under section 44 of the Nurses Act 1985 which has the effect of suspending a nurse from practising.
Mr Justice Geoghegan said section 44 had been enacted with a view to preventing immediate danger to the public. The board was entitled to take such proceedings without reference to the nurse in question.
He did not regard section 44 as being inevitably intertwined with section 38 of the Nurses Act, which provides for an inquiry into the fitness to practise of a nurse on grounds of alleged professional misconduct or alleged unfitness to practise by reason of physical or mental disability.
The three complaints against Ms O Ceallaigh, the inquiries in to which are now quashed, were made in 1996 and 1997 by the former master of the National Maternity Hospital, Dr Peter Boylan, and by the matron of another Dublin maternity hospital.
One of the complaints related to the birth of twins, one of whom was born dead, but Ms O Ceallaigh had said she was not responsible for that case and was called in only to assist another midwife at the last minute. No fitness to practise inquiry was initiated against that midwife.
In the other two cases, the mothers and babies involved are healthy and have no complaints against Ms O Ceallaigh.
An inquiry has already been held into another complaint (the first) against Ms O Ceallaigh which was also made by Dr Boylan. Ms O Ceallaigh was found not guilty of professional misconduct. However, she has complained that despite that finding, the Nursing Board is still seeking to censure her and recommend restrictions on her registration.
She has taken judicial review proceedings seeking orders quashing the conclusions and recommendation of the report of the committee on this complaint.
One of the central issues in the proceedings before the Supreme Court was interpretation of section 44 of the Nurses Act.
In his judgment, Mr Justice Barron accepted there had to be situations where a matter appeared so serious that it might be advisable for the board to apply to the court for an order suspending a nurse under section 44. "This, however, was not one of them," he said.
He said the board should have made more inquiries before seeking the order. He noted it was four months before Dr Boylan sought to make any complaint in relation to the first case and a further nine months before the board made its decision to apply to the court.
Because Ms O Ceallaigh was not contacted before a decision was made in each complaint that there was a prima facie case, there was a breach of fair procedures in relation to all three complaints once they became applications for an inquiry.
Mr Justice Barron was critical of the attitude of the board's administrators to the court proceedings and also of the failure of the chief executive officer of the board to consult the board when applications were taken to amend the injunction to allow Ms O Ceallaigh treat several women.
O Ceallaigh and the public, as well as the complainants, and it was inappropriate for the applications to vary the injunctions to be met on the basis of information available to the board in July 1997.
Mr Justice Hardiman said Ms O Ceallaigh had not been treated fairly in relation to the board's decision to hold inquiries into the complaints made against her. She ought to have been told of the allegations made and given a chance to deal with them. He said there was considerable evidence of a strong divergence of professional opinion on the merits of domiciliary childbirth as opposed to childbirth in hospital.
The court had no role in the resolution of this debate, the judge said. But its existence underlined the need for the dispassionate application of proper and fair procedures. Ms Justice Denham found the High Court was wrong in its finding in May 1999 that the court had to be satisfied - at that time - that the Nursing Board was satisfied then that it was in the public interest to continue the injunction restraining Ms O Ceallaigh from practising. She said the board must be satisfied that it was in the public interest to make the application when the original application was made to the court (in this case in August 1997).
It was not necessary for the board to reconsider the matter and be satisfied at the time of a future hearing that it was in the public interest to make the application.
However, insofar as the High Court had determined it would be wrong for a court to act upon information which was out of date, Ms Justice Denham said she would affirm the High Court decision lifting the injunction. She noted section 44 of the Nurses Act gave such draconian power a court should be slow to make an order for a long period.
The legislation also did not anticipate a situation where an application made in 1997 was heard two years later.
Mr Justice Murphy was the dissenting judge in both appeals. He did not see any circumstances from which it must be inferred Ms O Ceallaigh had a constitutional right to be heard at the preliminary stage of inquiries.