Alan O'Brien (applicant) v The Commissioner of An Garda Siochana (respondent).

Judicial Review - Certiorari - Decision of Garda Commissioner dispensing with applicant's services - Applicant hospitalised after blow to the head - Several medical reports considered - Divergence of vied as to whether applicant suffered "acute psychotic episode" - Reports on applicant from his training officers also considered - Applicant not told of adverse reports from training officers - Whether decision irrational and unreasonable - Whether Commissioner took into account extraneous material - Whether audi alteram partem rule breached.

The High Court (before Mr Justice Kelly); judgment delivered 19 August 1996.

WHERE the respondent had dispensed with the services of the applicant, the reasons given in the notice so informing the applicant referred only to the applicant's hospitalisation. However, the Assistant Commissioner advising the respondent had considered reports from the applicant's superior officers which were not brought to the attention of the applicant. Therefore, the applicant's right to a hearing under the audi alteram partem rule was breached.

Mr Justice Kelly, in the High Court, so held in making an order of certiorari quashing the decision and remitting the matter to the respondent for consideration.

James Connolly SC and Bruce Antoniotti BL for the applicant, Eamonn Leahy BL for the respondent.

MR JUSTICE KELLY said that the applicant sought to quash a decision made by the Commissioner (the respondent) on 18 July 1994. The decision was made pursuant to article 16 of the Garda Siochana (Admissions & Appointments) Regulations 1988 by which the respondent dispensed with the services of the applicant as a probationer garda from 30 July 1994.

The applicant contended that the decision was flawed, firstly, as it was irrational and unreasonable. Secondly, it was said that the respondent took into account extraneous material when arriving at the decision. Thirdly, it was said that the respondent failed to afford the applicant an adequate opportunity to be heard in respect of the matters which led to the respondent making the decision.

Turning to the facts, Mr Justice Kelly said that the applicant was 29 years old and had become a trainee garda on 6 April 1992. The training involved five phases and during the third phase the applicant received a blow to the head while playing in a football match. After the match the applicant became confused and agitated and was admitted to St James's Hospital. That night he underwent a brain scan, a CT scan and he had a lumbar puncture. The following morning he felt well enough to go home but the hospital authorities required him to remain there due to an irregularity relating to his temperature. He was discharged from hospital on 10 May 1993 and returned home for one week before returning to Templemore Training Centre.

Mr Justice Kelly said that the applicant completed the third phase of training and completed phase four at Donnybrook Garda Station before returning to Templemore for the final phase. With less than a week to go on the final phase he was informed that he was to be subjected to medical revision and that his "graduation" would be deferred. The applicant attended the Garda surgeon on a number of occasions and the applicant was aware that the surgeon was investigating the circumstances surrounding his hospitalisation in May 1993. The applicant was informed by letter signed by the respondent and dated 22 April 1994 that his services were to be dispensed with on the ground that he was not fitted mentally to perform his duties as a garda as a result of his hospitalisation in May 1993 where an acute psychotic episode was diagnosed.

Correspondence followed and respondent extended time for the applicant to make submissions until 27 May 1994. On 26 May 1994 the applicant's solicitor wrote to the respondent making certain submissions relating to the injury the applicant received and his subsequent hospitalisation. The letter included a medical report from Dr Mullett, a consultant psychiatrist. On 17 June 1994 a report prepared by a senior clinical psychologist at St James's Hospital was forwarded to the respondent.

Mr Justice Kelly said that notwithstanding these submissions and repos the respondent upheld his decision and the applicant received a document suspending him from duty from 2 pm on 21 July to midnight on 30 July.

Mr Justice Kelly said that the only matter notified to the applicant as forming the basis for the respondent's conclusion was his alleged lack of mental fitness to perform his duties as a garda and this conclusion was reached because of the circumstances surrounding his hospitalisation in May 1993 where an acute psychotic episode was diagnosed.

Mr Justice Kelly said it was necessary to look more closely at what was alleged to have been the diagnosis at St James's hospital. It did not appear that the applicant was ever examined by a consultant in hospital. A discharge note written on 13 May 1993 was signed by Dr McDermott, a senior house officer to Dr Luke Clancy, a consultant respiratory physician, and Mr Justice Kelly said that while it seemed strange the applicant should have come under the care of a respiratory physician that appeared to have been what happened. Mr Justice Kelly described Dr McDermott's discharge note as somewhat confused. The note set out the diagnosis as "acute confusional state" and later in the report said that the diagnosis was "therefore one of an acute psychotic episode". The report went on to say that "there was no history of head injury" and Mr Justice Kelly said that the statement of fact concerning the head injury appeared to be wrong.

The applicant was assessed by Dr O'Keane, a psychiatric registrar to Dr Mullett, on the day of his discharge. Dr O'Keane's discharge note of 10 May 1993 recited that the applicant was admitted following a head injury on 6 May 1993. Dr O'Keane certified the applicant fit to return to work on 17 May 1993. Mr Justice Kelly said that this report was at variance with Dr McDermott's of three days later. It appeared from the report of Dr Mullett to the respondent that Dr O'Keane was of the view that the applicant was normal with no evidence of psychiatric disorder when he examined him 72 hours after admission.

Mr Justice Kelly said that Dr McDermott's report of the absence of a head injury was clearly wrong and a report was prepared into the incident by Sergeant Delaney in June 1993. Witness statements were taken from participants and spectators at the football match and the sergeant, in his report, concluded that the applicant received a blow to the head during the match.

Sergeant Delaney's report was sent to the Superintendent in charge of the probationer school at Templemore and as a result the Garda surgeon was asked to examine the applicant. The surgeon saw him first on 8 July 1993 and took a medical history but the surgeon had no reports nor records relating to the applicant's hospitalisation nor treatment there, other than the discharge notes. The surgeon reviewed the applicant again on 7 December 1993. He decided to await a full report from Dr Mullett. The applicant was recalled for a standard review on 26 January 1994 and again on 1 March 1994 and at all these reviews the applicant was physically well and fit for duty.

Prior to the last review the surgeon received Dr Mullett's report dated 26 January 1994 which was not helpful from the applicant's point of view. Dr Mullett reported that his registrar, Dr O'Keane had seen the applicant on 10 May 1993 and when the applicant was taken to A & E he became acutely psychotic and required physical restraint and medical sedation. The CT scan, lumbar puncture and bloods were all normal. At interview the patient recorded that he felt well. Rather extraordinarily, according to Mr Justice Kelly, he recorded that the applicant felt the events of 6 May 1993 might have been brought on by a knock to the head but went on to say that his team mates denied any trauma during the game. Mr Justice Kelly said that this was clearly at odds with the report of Sergeant Delaney. Dr Mullett's report went on to say that Dr O'Keane's impression was that this was "an acute psychotic episode in a 25 year old male, due to trauma". Mr Justice Kelly said that Dr Mullett did not distance himself from Dr O'Keane's impression nor did he state that trauma might not bring on an acute psychotic attack.

On 14 February 1994 the Garda surgeon furnished his report and said that the applicant had recovered from the episode and appeared to be well. This report raised a query from Assistant Commissioner Byrne asking if the applicant was fitted physically and mentally to perform his duties and whether the surgeon was satisfied that the applicant would become an efficient and well conducted member. On receipt on this query the surgeon reviewed the applicant on 1 March 1994. The surgeon averred that he informed the applicant of the nature of the medical reports and that there could be consequences for the applicant. The applicant said that his meetings with the surgeon consisted of a series of questions and answers without any specific medical test being carried out and the meetings did not last more than 10 minutes. He said that he was not informed of the contents of the reports.

On 8 March 1994 the surgeon responded to Assistant Commissioner Byrne that the applicant was in good health physically and mentally. However, he went on to say that in the light of the history the applicant would be at greater risk than average for having a relapse of the "breakdown" which occurred in May 1993 and for that reason the surgeon expressed concern.

The assistant commissioner wrote to the surgeon on 29 March pointing out that the applicant was due to "graduate" on 30 March 1994 and before he could do so it was necessary to know precisely the nature of the "acute psychotic episode" on May 1993 and whether it was likely to recur and, if so, how the applicant would be affected. The surgeon was asked to make firm recommendations to the respondent.

On 31 March 1994 the surgeon responded that the psychotic episode referred to was a specific medical term for a nervous breakdown and there was no method of knowing whether it would recur. The surgeon said that if the applicant was still in probationary period the respondent should seriously consider whether or not to renew his contract. This ended the surgeon's direct involvement except for a meeting on 5 May 1994 at the applicant's request which lasted 40 minutes and the applicant indicated that he would challenge the decision of the respondent.

Subsequently, the surgeon was asked to give his views on the report from Dr Mullett of 9 May 1994. Dr Mullett's report recorded the applicant's examination by Dr O'Keane and Dr Mullett and went on to state that he found no evidence of psychiatric disorder of any kind. He said that the descriptions of the applicant's condition would seem to fit an acute confusional state following head trauma, rather than a so called functional psychotic illness. In summary, Dr Mullett found no evidence of any residual signs of psychotic mental illness and the account of his episode sounded more like an acute organic confusional state. Dr Mullett considered that the risk of the applicant developing psychotic illness of a schizophrenic type would probably be much the same as that of the community as large.

The surgeon gave his views of this report on 3 June 1994 wherein he noted that Dr Mullett had changed his opinion and now felt that the applicant's confused state was not psychotic whereas the emphasis of the earlier reports was that the episode was psychotic. The surgeon pointed out that he did not see the applicant during this episode and was relying merely on medical reports.

Mr Justice Kelly referred to a memorandum prepared by Assistant Commissioner Byrne for the Deputy Commissioner of Administration wherein he had said that on the basis of the surgeon's report he was satisfied that the applicant was not equipped mentally to perform his duties as a garda. The memorandum went on to point out that during the applicant's training he was described as being indecisive and lacking confidence. An assistant to the training sergeant reported that the applicant had difficulty in dealing with unexpected changes and the firearms instructor stated that the applicant displayed a certain lack of maturity in his attitude towards firearms and had difficultly in retaining instruction. The Assistant Commissioner stated that factors other than the incident on 6 May 1993 may have contributed to the breakdown. He concluded that he did not believe that the applicant was equipped to deal - with the onerous task placed on a member and that, in the light of the surgeon's report, there was a very real danger of the condition recurring. Therefore, the Assistant Commissioner recommended to the respondent that the applicant should show cause why his services should not be dispensed with. The Deputy Commissioner agreed and submitted a memorandum to this effect to the respondent on 21 April 1994.

Mr Justice Kelly said that on foot of these recommendations the respondent served the notice on the applicant on 22 April 1994 and the applicant initially responded himself by written submission on 5 May 1994. Mr Justice Kelly said that the focus of this submission was what took place at St James's Hospital and made clear that the applicant believed that there was much confusion in the hospital concerning the history of the events there. This personal submission was followed by a communication from his solicitor. On 11 July 1994 the assistant commissioner in charge of personnel considered all the documents and compiled a report for the deputy commissioner. That report referred to the history of the correspondence and a report furnished by the applicant's solicitor from the senior clinical psychologist at St James's Hospital, Dr Bates, which described the applicant as very alert, intelligent and co operative, he was also described as slightly perfectionist nervous of being misjudged by others and highly achievement oriented. He also described the applicant as being slightly immature, did not easily form relationships and had genuine difficulty in dealing with strong arousing emotion. The assistant commissioner went on to state that he did not believe that this altered the situation to any great extent. The report went on to state that he must be guided by the surgeon's original report of 31 March 1994 and he recommended that the respondent dispense with the applicant's services. The deputy commissioner agreed with these views and said that the surgeon, having seen both of the reports from Dr Mullett and Dr Bates did not propose any change in his previous submission. As a result of these submissions, the respondent made the decision which was sought to be impugned.

On 29 July 1994 the applicant was given leave to apply for an order of certiorari.

Turing to the law, Mr Justice Kelly said that this was an application for judicial review and not an appeal on the merits and quoted Lord Bright man in R v Chief Constable of North Wales Police, ex parte Evans [1982]

WLR 1155 where he had said that judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made". This statement was approved in State (Keegan) v Stardust Compensation Tribunal [1986] IR 642 and in O'Keeffe v An Bord Pleanala [1993] 1 IR 39.

Mr Justice Kelly said that the on us of establishing that the decision was arbitrary or unreasonable lay on the applicant. In O'Keeffe Mr Justice Finlay had quoted from the judgment of Mr Justice Henchy in Keegan setting out the circumstances where a court may intervene in a decision of an administrative officer or tribunal on the basis of unreasonableness or irrationality as follows: "(1) it is fundamentally at variance with reason and common sense; (2) it is indefensible for being in the teeth of plain reason and common sense; (3) because the court is satisfied that the decision maker has breached his obligation whereby he must not flagrantly reject or disregard fundamental reason or common sense in reaching his decision".

Mr Justice Kelly said that the respondent, in making his decision had before him the reports of Drs McDermott, O'Keane and Mullett and apart from the discharge notes of Drs McDermott and O'Keane, no further reports were obtained from them. The respondent also had the various reports of the Garda surgeon and he was aware of the view of the surgeon that in the second report Dr Mullett had changed his opinion. Most particularly, Mr Justice Kelly said that the respondent had the surgeon's report of 31 March 1994 that if the medical history had applied prior to the applicant's employment he would have deemed him unfit.

In these circumstances, Mr Justice Kelly said that it appeared that there was evidence before the respondent upon which he could have made the decision which was sought to be impugned and the fact that the court might have taken a different view of the material was quite irrelevant. Mr Justice Kelly said that the respondent's decision was not fundamentally at variance with reason or common sense nor was it indefensible for being in the teeth of plain reason and common sense nor did the respondent breach his obligation whereby he must not flagrantly reject or disregard fundamental reason or common sense in reaching his decision.

Mr Justice Kelly said that there were three further documents adduced in evidence before him which were medical reports which were not before the respondent. All of these documents suggested - that it was unlikely that the applicant suffered from acute psychotic episode and that he was fully fit - for duty. Mr Justice Kelly said that it was not open to the court to consider this evidence since it was not before the respondent. Even if they were admissible, it was open to the respondent to choose between the various medical opinions expressed without being guilty of irrational or unreasonable behaviour.

It was suggested by the applicant that material contained in the report of the assistant commissioner influenced the ultimate decision. Mr Justice Kelly said that it was true that this report dealt with matters other than those arising directly from the period of hospitalisation and referred to reports prepared by various superior officers dealing with an alleged lack of confidence and indecision on the part of the applicant. Mr Justice Kelly said that at no time was the applicant confronted by these allegations nor was he given an opportunity to deal with them. In State (Gleeson) v Minister for Defence [1976] IR 280 Mr Justice Henchy said that the requirements of natural justice imposed an inescapable duty to give due notice of the intention to discharge and the essential facts and findings alleged to constitute that reason and to give a reasonable opportunity of presenting a response to that notice.

Mr Justice Kelly said that the Assistant Commissioner, in his memorandum of 19 April 1994, dealt with matters other than the hospitalisation of the applicant and its consequences and it was on foot of this report that the notice was prepared and served on the applicant. That notice dealt with the alleged mental unfitness because of the circumstances surrounding the applicant's hospitalisation in May 1993. It appeared that the poor reports on the applicant from his superior officers played at least some part in the decision to serve the notice of 22 April 1994 and the applicant was not informed of these reports and no opportunity was given to him to deal with them. From 22 April 1994 the whole thrust of the case made by the applicant was directed towards what was contained in that notice.

Mr Justice Kelly said that when the decision was made, the respondent had before him material which was adverse to the applicant but of which the applicant was unaware and such material clearly played a part in the original recommendation of Assistant Commissioner Byrne. Mr Justice Kelly said that it appeared that these reports played at least some part in the decision and they had been specifically tied into the question of the applicant's mental fitness by the assistant commissioner when he opined that "factors other than the incident of 6 May 1993 may have contributed to the breakdown".

Mr Justice Kelly said that fair procedures and the decision of the Supreme Court in Gleeson required that the applicant be given due notice of these reports adverse to him and a reasonable opportunity of presenting his response to them and he did not get either. Mr Justice Kelly said that he was not suggesting that the respondent was not entitled to have regard to these reports. However, it was important that a decision which such far reaching consequences not only be fair but be seen to be fair and in this respect the audi alteram partem rule was not adhered to.

The applicant also complained that he was not given an indication that his career was on the line by the Garda surgeon. The surgeon averred that at the consultation of 1 March 1994 he informed the applicant comprehensively as to the nature of the medical reports received including the reference to a psychotic episode and that he made it clear to him that the episode could have consequences for him. Mr Justice Kelly said that the onus in this case lay on thee applicant and he did not seek to cross examine the surgeon. In so far as there was a conflict between averments made by the applicant and the surgeon, Mr Justice Kelly said that such conflict could not be resolved without cross examination and since this was not sought, the applicant had failed to establish the facts of this matter.

Before concluding, Mr Justice Kelly said that there was no obligation on the respondent to direct an independent medical or psychiatric examination as had been submitted by the applicant. Mr Justice Kelly said that the respondent, was entitled to rely on the opinions of the surgeon and in the absence of the surgeon indicating the desirability of a second opinion, there was no legal obligation on the respondent to seek such opinion.

Mr Justice Kelly said that much of the applicant's case on unreasonableness had its source in a belief that the reports from the two non consultant hospital doctors at St James's Hospital were factually incorrect. Mr Justice Kelly said that it was remarkable that neither of the two doctors ever submitted any further reports and had they resiled from or varied their opinions a different view of matters might have arisen.

Mr Justice Kelly pointed out that the actual procedures which were followed in the present case conformed precisely with the requirements of Gleeson save for the one lapse already identified.

Having regard to these findings, Mr Justice Kelly directed that an order of certiorari be issued to quash the respondent's decision of 18 July 1994. Mr Justice Kelly said that the court had to pay particular respect to the fundamental importance in the structure of society played by the Gardai and in that force, the respondent had a critical role. Accordingly, an order pursuant to Order 84 rule 26(4) of the Rules of the Superior Courts was made remitting the applicant's case back to the respondent for consideration. In the interest of certainty the notice of 22 April 1994 was also quashed so that the respondent would be at large in formulating grounds and a new notice for service on the applicant and the applicant would have an opportunity to respond to such notice.

Solicitors: Hughes Murphy & Co (Dublin) for the applicant; Chief State Solicitor for the respondent.