Confirmation without Merits Review under s.74: High Court reaffirms Wednesbury-limited oversight, clarifies that cancellation cannot be coupled with conditions, and endorses cancellation notwithstanding a medical-disability defence

Introduction

In The Nursing and Midwifery Board of Ireland v Burke [2025] IEHC 557, the High Court (Barniville P.) confirmed the Nursing and Midwifery Board of Ireland’s (NMBI) decision to cancel a psychiatric nurse’s registration under section 69(1)(f) of the Nurses and Midwives Act 2011 (as amended) (the 2011 Act), following a Fitness to Practise (FtP) inquiry which found that he had a “relevant medical disability.” The case squarely engaged the High Court’s jurisdiction on “confirmation applications” under section 74(3), which directs the Court to confirm the regulator’s decision unless there is “good reason not to do so.”

The proceedings arose from a 2019 complaint by a healthcare company concerning the respondent’s conduct over a short employment period. The Preliminary Proceedings Committee (PPC) referred the matter to the Fitness to Practise Committee (the Committee) on grounds including professional misconduct and relevant medical disability. After a ten-day inquiry spanning 2024–2025, the Committee found all factual allegations proved, found a relevant medical disability beyond reasonable doubt, treated that disability as a complete defence to professional misconduct and Code breaches, and recommended cancellation. The Board adopted the recommendation on 11 June 2025. The respondent did not appeal within the 21-day period and ultimately opposed the Board’s confirmation application.

The central legal issues included: (i) the standard governing confirmation under section 74(3) of the 2011 Act; (ii) whether any procedural impropriety or breach of natural/constitutional justice occurred; (iii) whether the cancellation decision was so unreasonable that no reasonable Board could have made it; and (iv) whether conditions can lawfully be attached where the sanction is cancellation. The Court also addressed due process and transparency issues, such as public hearing with anonymisation of certain third parties.

Summary of the Judgment

Applying section 74(3), the Court must confirm the Board’s decision unless there is “good reason not to do so.” The High Court’s role is not an appeal on the merits; it is confined to judicial review-type oversight: procedural propriety, adherence to natural and constitutional justice, and Wednesbury/Stardust unreasonableness.
No procedural impropriety or breach of natural/constitutional justice was found in the FtP inquiry or Board meeting. Delay, while regrettable, did not vitiate the process.
The Board’s cancellation decision was not only reasonable; the Court indicated that a lesser sanction would arguably have been unreasonable on the evidence. The decision was therefore confirmed.
Conditions cannot be attached to a registration that has been cancelled; any conditions arise, if at all, in a future restoration process.
The Court heard the confirmation in public and anonymised the identities of staff witnesses and the company, aligning with Medical Council v Anonymous [2019] IEHC 109 and Gilchrist and Rogers v Sunday Newspapers Ltd [2017] 2 IR 284.
The Court ordered that a transcript of the Digital Audio Recording for the 13 October 2025 hearing be furnished to the respondent at the Board’s cost under Order 123, Rule 9 RSC.

Case Background

A director of a healthcare company complained in November 2019 about the respondent’s communications and conduct during his very brief employment as clinical lead. The PPC referred the matter to the FtP Committee (Part 8, 2011 Act) on professional misconduct, non-compliance with the Code of Professional Conduct and Ethics (December 2014), and relevant medical disability. A Notice of Inquiry (27 October 2023) particularised seven factual allegations (five relating to high-volume and inappropriate emails; one to a confrontation with HR; and one to asking a colleague if he had considered suicide).

The Committee found all seven allegations proved beyond reasonable doubt and, based on uncontroverted expert evidence (from a consultant forensic psychiatrist), found that the respondent suffers from a mental disorder amounting to a “relevant medical disability,” which the Committee treated as a complete defence to professional misconduct and code breaches. However, assessing public safety, lack of insight/treatment, and risk management, it recommended cancellation. The Board met on 11 June 2025, considered the respondent’s written submission, accepted the Committee’s reasoning, and imposed cancellation under section 69(1)(f). The respondent did not appeal within 21 days (section 73). The Board then applied to the High Court for confirmation (section 74).

Key Holdings and Orders

Confirmation granted under section 74(1) and (3): the Court saw no “good reason” not to confirm.
The High Court reaffirmed that the s.74 confirmation jurisdiction is narrow and does not permit merits review of the FtP findings or sanction unless the MAGA/Lohan-Mannion thresholds are crossed.
The Court endorsed the Board’s conclusion that cancellation was necessary, appropriate, and proportionate; any lesser sanction would arguably have been unreasonable given the expert evidence, chronicity, lack of insight or treatment, and risk to public safety.
Conditions cannot be attached where cancellation is imposed; conditions are for any future restoration application.
Hearing in public; identities of staff and the company anonymised; DAR transcript ordered for the respondent at Board’s expense.

Analysis

Precedents and Authorities Cited

The Court’s approach to section 74(3) is anchored in a well-developed line of High Court authority addressing similar “confirm unless good reason” provisions across regulatory statutes:

Medical Council v M.A.G.A. [2016] IEHC 779 (Kelly P.): This seminal judgment held that the confirmation jurisdiction is not an appeal on the merits. The High Court’s task is confined to ensuring procedural propriety, compliance with natural and constitutional justice, and that the decision is not so unreasonable that no reasonable decision-maker could have made it (the “Wednesbury”/“Stardust” standard; Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223; State (Keegan & Lysaght) v Stardust Victims’ Compensation Tribunal [1986] IR 642).
Medical Council v Lohan-Mannion [2017] IEHC 401 (Kelly P.): Reaffirmed M.A.G.A.; the only bases to refuse confirmation are procedural impropriety, breach of natural/constitutional justice, or unreasonableness of the kind “no reasonable council could come to.” The threshold is high.
Teaching Council Of Ireland v S.R. [2018] IEHC 582 (Faherty J.): Applied the same approach where the statute provided confirmation “unless it sees good reason to the contrary.”
Veterinary Council of Ireland v Brennan [2020] IEHC 655 (Irvine P.): Contrasted provisions that restrict the High Court to a confirmation role with others (s.80(5) of the Veterinary Practice Act 2005) that empower the Court to make “any other order that it considers appropriate,” highlighting that not all confirmation frameworks are identical.
In re M. (A Doctor) [1984] IR 479 (Finlay P.): Cited in relation to the different posture on appeal (s.73) where the burden would lie on the regulator to prove matters if the respondent appealed; this underscored the separation between appeals and confirmation applications.
Medical Council v Anonymous [2019] IEHC 109 (Kelly P.) and Gilchrist & Rogers v Sunday Newspapers Ltd [2017] 2 IR 284: Cited regarding anonymisation principles in public hearings when sensitive medical or third-party interests are at stake.

Legal Reasoning

1) The section 74(3) “good reason” test

Section 74(3) states: “The Court shall, on the hearing of an application under subsection (1), confirm the decision under section 69 the subject of the application unless the Court sees good reason not to do so…” Barniville P. reaffirmed that this does not vest an appellate merits jurisdiction in the High Court. Instead, following M.A.G.A. and Lohan-Mannion, the Court asks:

Was there any procedural impropriety?
Was there any lapse from natural or constitutional justice?
Was the decision so unreasonable that no reasonable Board could have reached it?

The Court emphasized that it is not open, at confirmation stage, to reweigh evidence, revisit FtP factual findings, or substitute its own sanction view unless the high threshold is met. The respondent’s attempt to litigate the merits (criticisms of expert evidence, procurement of witness statements, length of inquiry, and contested medical findings) lay outside the narrow confirmation remit and would properly have been ventilated on appeal under s.73—an avenue he chose not to pursue.

2) Procedural fairness and delay

The Court found no procedural impropriety or breach of natural/constitutional justice. The inquiry spanned ten hearing days or parts of days across nearly a year, and while protracted, this was due in no small part to the respondent’s extensive interventions and submissions. The respondent was provided with documentation, permitted to participate, cross-examine, and make submissions. The Board meeting on 11 June 2025 complied with fair procedures; the respondent submitted a detailed written statement, which the Board considered carefully. No unfairness arose from the respondent’s absence at the Board meeting—he chose not to attend.

3) Reasonableness of cancellation

The expert psychiatric evidence was “clear [and] uncontroverted”: the respondent suffers from a mental disorder—a paranoid persecutory psychosis or a personality disorder—amounting to a relevant medical disability (s.2). The Committee considered Dr O’Connell’s preliminary “desktop” report and an addendum report (the latter based on observation during the inquiry). The Committee permitted reliance on the addendum; the High Court found no procedural impropriety in that ruling, particularly given the respondent’s refusal to attend a scheduled assessment. The Committee further found that the disability was longstanding and persistent, with no evidence of treatment or insight, and concluded that it continued to exist.

Critically, the Court endorsed the Board’s assessment that cancellation was “necessary, appropriate and proportionate” to protect the public, despite there being no finding of professional misconduct (because medical disability was treated as a complete defence to those allegations). Barniville P. went further, noting that “a decision by the Board to impose any lesser sanction would arguably have been a decision which no reasonable Board could have taken in these circumstances.” This robust articulation will resonate in future cases where untreated impairment, lack of insight, and risk indicators are present.

4) Cancellation cannot be coupled with conditions

The Committee had recommended cancellation and conditions. The Board, after legal advice, concluded that it cannot attach conditions to a cancelled registration—a registration ceases to exist upon cancellation. Any conditions can only be considered if the registrant applies for restoration in the future. The High Court recorded and implicitly endorsed this statutory sequencing as correct.

5) Public hearing and anonymisation

Although the respondent’s condition was central, he did not seek a section 27 order under the Civil Law (Miscellaneous Provisions) Act 2008. The High Court nonetheless anonymised staff witnesses and the employer company, following prior practice (Medical Council v Anonymous) and the Supreme Court’s guidance in Gilchrist & Rogers on reconciling open justice with privacy and safety. The s.58 suspension proceedings (instituted in 2023) were not discussed substantively given their statutory requirement to be held otherwise than in public (s.58(2)).

Impact and Significance

1) Regulatory confirmation applications

This judgment strengthens and clarifies, in the context of the 2011 Act, the narrow supervisory role the High Court exercises on confirmation applications. Regulators can expect confirmation where processes are fair and the decision sits within the spectrum of reasonableness. Respondents should note that confirmation is not a back-door appeal on the merits; the proper route to challenge FtP findings and sanction is an appeal under s.73 within 21 days.

2) Sanctioning where medical disability is present

The case is notable for confirming that:

A proven “relevant medical disability” may operate as a complete defence to professional misconduct and Code breaches in an FtP inquiry.
Yet, that same disability can still justify the most serious sanction (cancellation) to protect the public, particularly where insight is lacking, treatment is absent, and risk indicators (e.g., impaired judgment, threatening behaviour) are established.
The Court’s statement that a lesser sanction might have been unreasonable sets a strong benchmark for similar impairment cases.

3) Conditions and cancellation

The judgment provides a clear, practical clarification for sanctioning under the 2011 Act: conditions cannot lawfully be attached to a cancelled registration. Committees and Boards should avoid pairing cancellation with conditions and reserve any conditionality for restoration applications.

4) Expert evidence in impairment cases

The Court endorsed the Committee’s acceptance of a consultant forensic psychiatrist’s addendum based on observation during the inquiry where the registrant declined assessment. For future cases, this underscores that a registrant’s refusal to engage with assessment will not prevent an impairment finding where reliable expert evidence can be sourced and fairness is maintained.

5) Transparency, privacy, and publication

The Court’s approach to public hearing with anonymisation aligns with the strong presumption of open justice tempered by privacy where justified. The Board’s decision not to publish in its eZine or website, but to make s.82 notifications, offers a template for proportionate transparency in medical-disability cases. The explicit decision not to refer to the National Vetting Bureau absent the statutory threshold further evidences careful statutory compliance.

Complex Concepts Simplified

Confirmation application (s.74): After the Board imposes a sanction and the appeal window closes without an appeal, it must apply to the High Court to “confirm” its decision. The Court must confirm unless there is a “good reason not to,” a high-threshold test focused on procedural fairness and extreme unreasonableness.
Appeal (s.73) vs confirmation (s.74): An appeal allows the Court to consider the merits; the regulator bears the burden to prove the case on appeal. A confirmation application is not a merits rehearing; it is a narrow oversight role.
Relevant medical disability (s.2): A physical or mental condition that may impair a nurse’s ability to practise safely. It can be a defence to “misconduct” but can still warrant protective sanctions (including cancellation) to safeguard patients and the public.
Wednesbury/Stardust unreasonableness: A decision so irrational or outside the range of acceptable outcomes that no reasonable decision-maker could reach it, justifying judicial intervention.
Conditions vs cancellation: Conditions are practice restrictions imposed on a continuing registration. Once a registration is cancelled, there is nothing to attach conditions to. Conditions become relevant only if the registrant later seeks restoration.
Interim suspension (s.58): An urgent, interim measure heard otherwise than in public. Its confidentiality contrasts with the openness of FtP and confirmation proceedings.
Anonymisation in public hearings: Courts may anonymise individuals or entities to protect privacy or safety interests, consistent with open justice principles.

Notable Passages

On the s.74(3) test: “The Court shall… confirm the decision… unless the Court sees good reason not to do so.”
On the Court’s limited role (M.A.G.A.): the Court is not exercising an appellate jurisdiction on the merits; it reviews for procedural propriety, natural/constitutional justice, and whether the decision is one which “no reasonable council would come to.”
On cancellation here: “not only am I not satisfied that the decision of the Board was so unreasonable that no reasonable Board could have reached the decision, on the contrary, I am satisfied that the decision… was entirely correct… a decision… to impose any lesser sanction would arguably have been… unreasonable.”
On conditions with cancellation: conditions are not legally appropriate where the registration is cancelled; they may be considered on any future restoration application.

Conclusion

The Nursing and Midwifery Board v Burke reinforces, with precision and practical clarity, the High Court’s constrained role in confirmation proceedings under section 74 of the 2011 Act. It makes three contributions of lasting significance:

It reaffirms that confirmation is not a merits appeal; the Court confirms unless there is procedural impropriety, breach of natural/constitutional justice, or Wednesbury-type unreasonableness.
It clarifies sanction architecture: cancellation cannot be paired with conditions; conditionality is for restoration, not cancellation.
It confirms that a medical disability, even when it absolves misconduct, does not insulate a practitioner from protective sanctions up to and including cancellation—especially where there is lack of insight, absence of treatment, and cogent risk indicators. Indeed, in strong impairment cases, a lesser sanction may itself be unreasonable.

For regulators, the judgment is a robust endorsement of protective sanctions grounded in expert evidence and fair process. For practitioners, it is a cautionary tale about the importance of timely appeals, engagement with assessments, and demonstrable insight and treatment. For the courts, it consolidates the jurisprudence distinguishing confirmation from appeal, and advances a consistent, principled approach to public protection in professional regulation.