A midwife has won her legal battle to have two expert witnesses and an adviser attend a hearing of the Fitness to Practise Committee of An Bord Altranais, the Nursing Board, on an allegation of professional misconduct against her.
The Supreme Court yesterday ruled by a two-to-one majority that Ms Ann O Ceallaigh, of Temple Crescent, Blackrock, Co Dublin, a self-employed domiciliary midwife, was entitled to have two British midwives and an Irish research sociologist present at the inquiry. The court also awarded costs to Ms O Ceallaigh.
In his judgment, Mr Justice Barron said the Nursing Board had regarded the complaints against Ms O Ceallaigh as so serious that they warranted an application to stop her practising pending the resolution of the disciplinary proceedings.
It was against that background, and Ms O Ceallaigh's submission that it was not just her, but the system of domiciliary midwifery which was on trial, that it would not be seen to be a fair hearing if witnesses forming part of the defence team were excluded from such a hearing at any time, he said.
The Supreme Court decision means Ms Mary Cronk, a midwife in clinical practice in the UK for 30 years; Prof Leslie Page, professor of midwifery at Thames Valley University; and Ms Marie O'Connor, a research sociologist who has produced a report for the Department of Health entitled Women and Birth: A National Study of International home birth in Ireland and is author of Birth Tides, will be entitled to attend the hearing.
Ms O Ceallaigh is the subject of four complaints to An Bord Altranais. Two were made by the master of a Dublin maternity hospital and two by the matron of another maternity hospital.
The FTP committee's inquiry in relation to the first complaint started earlier this year but was adjourned pending the decision on whether Ms O Ceallaigh was entitled to have expert witnesses present at the hearing. In relation to the other three complaints no inquiry has yet started.
In the interim the High Court has made an order preventing Ms O Ceallaigh practising as a midwife but not as a nurse. That order was subsequently varied to allow her to provide midwifery services to certain named patients.
Earlier this year Ms O Ceallaigh failed in her High Court claim that the FTP committee acted unlawfully in excluding the two midwives and Ms O'Connor from its hearings. She then appealed that decision to the Supreme Court, which reserved judgment last month.
During the appeal Dr Michael Forde SC O Ceallaigh, said the mother who was the subject of the first complaint against the midwife did not want the inquiry to proceed and was irate that she was being used "to get at" Ms O Ceallaigh.
In his judgment yesterday, Mr Justice O'Flaherty said that, prima facie, persons the subject of an inquiry at which their conduct is called into question should be entitled to have present at that inquiry any person who may assist their defence, subject to the orderly conduct of the inquiry.
The entitlement to have certain persons present did not seem to breach the privacy or confidential nature of the inquiry as had been argued on behalf of the FTP committee.
Such witnesses would be expected to observe due confidentiality and not to relate matters that took place at the inquiry to any members of the public not concerned with it.
He would leave open the inquiry's entitlement to have witnesses excluded in certain circumstances, just as courts do, but the idea of excluding expert witnesses from any court was "rather exceptional, to say the least".
He was satisfied the three persons named by Ms O Ceallaigh should be entitled to attend as expert witnesses or, in the case of Ms O'Connor, to help the presentation of the defence case.
Provision of a transcript to Ms O Ceallaigh's experts was not a solution. It would also, in his view, have the effect of prolonging the inquiry. On the whole it was far more desirable that the expert witnesses should be present.
"I do not believe that the presence of these expert people will trench at all on the essential privacy and confidentiality of the proceedings before the inquiry. They should be allowed attend and give such assistance as is required from time to time."
Also allowing the appeal, Mr Justice Barron said the FTP committee must, under the Nurses Act, admit to any inquiry any person representing that person who was the subject of the inquiry. This included any person who the nurse could reasonably argue was assisting in the preparation and presentation of her case.
The consequences of an adverse finding by the committee were serious and any person before the committee should not be hampered in any way in their defence.
It was clearly reasonable that those with professional and detailed knowledge of the work of a domiciliary midwife would be required to assist Ms O Ceallaigh in her defence. He was unable to see how the work of the committee could be affected, as it had submitted, by the number of persons present at the hearing.
In his dissenting judgment, Mr Justice Murphy said he could not, in the circumstances, foresee any possibility of injustice O Ceallaigh as a result of the exclusion of the midwives and Ms O'Connor.
"It may be, with the benefit of hindsight, that it would have been preferable and more realistic to conduct the entire proceedings in public, but that is not the issue. The committee have made decisions and rulings within their discretion, and the issue is whether they are rational, not whether they are ideal or even appropriate."
It seemed to him the rationale for excluding the witnesses - that it would undermine the privacy of the inquiry - was entirely logical and wholly sustainable provided there was no danger it would cause injustice to Ms O Ceallaigh. He was satisfied no such danger existed.
