A former champion athlete has won his High Court claim that the Army adopted unfair procedures when ordering his discharge following a medical diagnosis that he had suffered epileptic fits.
However, Mr Justice Geoghegan also held it could not be argued by Sgt Stephen O'Toole, of Beechfield, Portlaoise, Co Laois, that a decision to medically downgrade him "flew in the face of reason". Sgt O'Toole, an Army physical training instructor, sustained two epileptic seizures in May 1991 and another in December 1993. Since then he has been on medication and seizure-free.
In 1996, the soldier was told to work until the end of that year. This surprised him and it emerged that it was because a senior officer with the Army Medical Corps, Lieut-Col Concannon, had formed the view he was unfit to remain because of his epilepsy.
The officer said it was essential that all personnel be capable of using firearms and he decided that Sgt O'Toole was incapable of doing so. But the procedures leading to the decision to discharge Sgt O'Toole were flawed in two respects, Mr Justice Geoghegan said.
Arguments against Sgt O'Toole's case by Lieut-Col Concannon in the form of hand-written comments and memorandums should have been supplied to Sgt O'Toole, he found. These arguments went before the Army Medical Board and the Director of the Medical Corps without Sgt O'Toole's knowledge and, therefore, the proceedings before the board and director were flawed.
In relation to a final application made by Sgt O'Toole to the Deputy Adjutant General, the judge said it was important the Deputy Adjutant General would have had all relevant documentation. Unfortunately, an element of unfairness arose, of which the Deputy Adjutant General was unaware. This was of such a serious nature that it invalidated the decision-making process adopted by the Deputy Adjutant General.
Sgt O'Toole's superior officer, Comdt P.J. Healy, had recommended the retention of the sergeant in a letter to the Adjutant General. The letter said Sgt O'Toole's service as a physical training instructor was "outstanding" and described his work as "excellent and highly efficient". Sgt O'Toole assumed this strongly supportive letter would be before the Deputy Adjutant General. However, the letter had never reached him because Comdt Healy decided instead to send a letter recommending discharge. Sgt O'Toole was not notified of this change of mind and was not furnished with a copy.
The judge said Comdt Healy had claimed that, after writing the original letter, he had received a Medical Board report and a verbal briefing from Lieut-Col Concannon. On that basis, he had said he felt he was left with no alternative but to recommend Sgt O'Toole's discharge.
The judge said he was not suggesting Comdt Healy was not entitled to change his mind and the judge suspected Comdt Healy may have overlooked informing Sgt O'Toole of his change of mind. The result was a fundamental unfairness. In those circumstances the decision of the Deputy Adjutant General to discharge Sgt O'Toole must be considered invalid. He quashed the decision.