Appeal against midwife heard in camera

The Supreme Court yesterday ruled that an appeal by An Bord Altranais against the High Court's decision to lift an injunction which had prevented a Co Dublin midwife from practising must be heard in camera.

However, the court directed that a parallel set of proceedings by midwife Ms Ann O Ceallaigh challenging the nursing board's entitlement either to seek the injunction against her or to hold an inquiry into three complaints against her could be heard in public.

Both sets of proceedings were listed for hearing before the five-judge Supreme Court yesterday. In the first set, An Bord Altranais is appealing a High Court order of May 1999 discharging an injunction granted to the board in August 1997 restraining Ms O Ceallaigh, of Temple Crescent, Blackrock, from practising.

After the board secured the injunction, Ms O Ceallaigh successfully applied to vary it on many occasions and delivered 47 babies from the time it was granted to when it was discharged. In his judgment lifting the order, Mr Justice Morris said the board should have had regard to the mothers who had chosen to avail of Ms O Ceallaigh's services since the injunction was granted and should also have had regard to expert reports furnished on her behalf.

In the second action, Ms O Ceallaigh is appealing against the High Court's refusal to stop an inquiry by the board into three other complaints against her on the grounds of absence of due process. An inquiry into one other complaint against Ms O Ceallaigh concluded earlier this month with the board's fitness to practise committee finding her not guilty of professional misconduct. However, the committee's report stated Ms O Ceallaigh should have been "more vigilant and pre-emptive in seeking further professional opinion/intervention and transfer arrangements" for a pregnant woman "in light of her presenting symptoms". It has recommended Ms O Ceallaigh be censured and her practice monitored and supervised by the Superintendent Public Health Nurse.

Ms O Ceallaigh last week secured leave from the High Court to seek an order quashing the conclusions and recommendations of the committee's report. The legal proceedings precipitated by the board's decision to seek the injunction against Ms O Ceallaigh in August 1997 have cost more than half a million pounds to date and the final bill is expected to be more than £1.5 million. In a letter to Labour Party leader Mr Ruairi Quinn last December, the board said it had at that point spent £530,430 on the hearing by the fitness to practise committee into the first complaint against the midwife.

In the Supreme Court yesterday, Dr Michael Forde SC, for Ms O Ceallaigh, asked that the two matters before the court be heard in public.

Mr Gerard Hogan SC, for the board, said he was maintaining a neutral stance on whether the appeal against the lifting of the injunction be heard in public or private. However, he had to draw the court's attention to the imperative language of Section 44.2 of the Nurses Act 1985 which stated that such applications "shall" be heard otherwise than in public.

After considering the matter with the other judges, Mrs Justice Denham said the words of Section 44.2 were mandatory, stating that such applications "shall" be heard "otherwise than in public". She directed the first set of proceedings be heard in camera and the second set in public.

The hearing of the first set of proceedings concluded before 3 p.m. yesterday, after which the second set opened in public.

In that application, Dr Forde said the High Court was wrong not to find that the board should have notified Ms O Ceallaigh about its intention to establish in September 1997 a fitness to practise inquiry into three allegations against her. He argued this was the normal and inveterate practice in all comparable professions. There were coercive practical reasons for following such a procedure.

The hearing continues today.