Need for fair procedures clarified

On the face of it, what happened to Ann O Ceallaigh following the referral of a woman in labour to Holles Street maternity hospital…

On the face of it, what happened to Ann O Ceallaigh following the referral of a woman in labour to Holles Street maternity hospital seemed drastic, threatening her very livelihood.

In June 1996 she brought a woman who was in prolonged labour into Holles Street, where a healthy child was delivered. Arising from this incident, the then master of Holles Street, Dr Peter Boylan, wrote in September to An Bord Altranais complaining about her.

Two months later he made a second complaint, concerning a case where a twin had died. It later emerged that this case did not involve Ms O Ceallaigh but another midwife, against whom no complaint was ever made. The board decided to institute Fitness to Practise proceedings against her.

She was unaware that Dr Boylan had made the second complaint or that the matron of the Rotunda had made two further complaints, both relating to delays in bringing women in prolonged labour into hospital. These complaints also went, unknown to her, to the Fitness to Practise committee.

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In none of these complaints was the mother consulted.

As Mr Justice Hardiman noted in his judgment: "Indeed, on the evidence, the patients strongly support the applicant's position and some at least of the patients to whom the complaints relate have expressly stated that the complaints were made without their authority and contrary to their wishes."

One of the mothers involved subsequently had a second baby delivered with the help of Ms O Ceallaigh.

Armed with the four complaints and urged by Dr Boylan to take action, the board decided to exercise its powers to seek an injunction preventing Ms O Ceallaigh from practising as a midwife, pending the outcome of the hearings. It went to the High Court to do this on August 1st, 1997, on an ex parte basis - that is, without notifying O Ceallaigh. her.

The injunction was granted. This meant that Ms O Ceallaigh could not practise her profession, though no malpractice or negligence had been proved against her - and none was alleged by any of her patients. The injunction was varied later to allow individual women to seek her services, and she delivered some 60 babies while the litigation was going on.

Meanwhile the Fitness to Practise process dragged on for almost three years, with a total of 19 days' hearings - all in private. Ms O Ceallaigh was only partially successful in challenging this, where she won the right in court for her expert witnesses to attend the hearings.

Ms Justice Denham said the many delays showed the need for a system of case management.

The Supreme Court examined two issues - whether the board followed fair procedures in processing the three later complaints to the Fitness to Practise committee, and whether it was correct in seeking the High Court injunction preventing Ms O Ceallaigh from working without notifying her, or at all.

There were differences in emphasis and nuance between the four judgments in Ms O Ceallaigh's favour, but they contain a number of important markers for the future, not only for An Bord Altranais's Fitness to Practise committee, but for those of other bodies governing professions such as doctors and lawyers.

In relation to fair procedures, Mr Justice Barron laid out a number of very clear conditions in such hearings. First of all, "there must be a filtering system before a decision is made to hold an inquiry", he said. This should involve the person against whom the complaint is made. "Matters which may have a serious adverse effect on the rights, let alone the livelihood, of the person affected should not be considered behind closed doors and without notice to such person."

Mr Justice Hardiman was also critical of the board's failure to tell Ms O Ceallaigh of the three later complaints. "Indeed, if the applicant's answer to the second complaint is the very basic one that she was not the midwife in charge of the case and was not responsible for the plan to have a home delivery, very little time would be required to make that point."

Mr Justice Hardiman saw the decision to seek an injunction preventing her from practising as something to be sought only in extreme and urgent circumstances, and rarely without notifying the person concerned. Such circumstances did not exist here, he said. Underlying the whole affair is the debate between advocates of home birth and those who favour obstetrician-led hospital deliveries.

In his letter supporting the second complaint, Dr Peter Boylan said: "I feel that An Bord Altranais needs to take decisive action in connection with midwife Ann Kelly continuing her practice in the community in Ireland . . . women are being exposed to the risks associated with attending home birth midwives in the community who are clearly not practising to an acceptable standard."

This is perceived by the home birth supporters as an attack on the practice of independent midwifery. According to her support group, "the complaints come from hospitals where birth is highly managed . . . By giving women a safe, low-tech, drug-free service in the freedom of their own homes, Kelly, and other midwives like her, are offering women a new kind of maternity service."

Mr Justice Hardiman commented that the court had no role in the resolution of this debate, but added that it "underlines the need for the dispassionate application of proper and fair procedures".