T. v The Chief Executive Officer of the Nursing and Midwifery Board of Ireland (Approved)

Factual and Procedural Background

The Applicant, a qualified psychiatric nurse, was the subject of a Fitness to Practice Inquiry conducted under the Nurses Act, 1985, arising from allegations of professional misconduct relating to his therapeutic relationship with a former service user. The Inquiry was initiated following an adverse Trust in Care report issued by the Health Service Executive (HSE) in 2011, which was furnished to the Nursing and Midwifery Board of Ireland in 2012. The Board applied for an inquiry into the Applicant's fitness to practice, and the Fitness to Practice Committee (FPC) found a prima facie case to proceed.

The inquiry process was protracted, involving multiple judicial review proceedings brought by the Applicant challenging the inquiry’s delay and procedural matters. After partial stays and preliminary hearings on the issue of delay and prejudice, the substantive inquiry resumed in September 2018. On Day 10 of the hearing, the Applicant made admissions to several allegations of professional misconduct, and an agreement was reached on the evidence to be admitted before the FPC for the purpose of findings and recommending sanction.

The FPC issued its report on 11th October 2018, finding the Applicant guilty of professional misconduct and recommending erasure from the register as the appropriate sanction. The Applicant objected to the report, particularly on grounds that the Committee had considered certain documentation that was agreed to be excluded, and that the FPC failed to address an offer he had made regarding an irrevocable undertaking not to seek removal from the inactive register. The Applicant initiated the present judicial review seeking to quash the FPC report.

Legal Issues Presented

1. Whether the Fitness to Practice Committee breached the Applicant’s right to fair procedures by considering documentation in its sanction deliberations that was agreed to be excluded from evidence.
2. Whether the FPC’s report was legally defective for failing to address the Applicant’s offer of an irrevocable undertaking in lieu of sanction.
3. Whether the Nursing and Midwifery Board of Ireland was tainted by receiving and considering the challenged documentation, thus warranting prohibition from further participation.
4. Whether the Applicant’s participation in the inquiry hearings constituted waiver or estoppel of his objections to the admission of certain evidence.
5. Whether the inquiry process should be quashed or allowed to continue subject to directions, given the procedural irregularities alleged.

Arguments of the Parties

Applicant's Arguments

• The FPC breached an express agreement reached on Day 10 of the hearing by considering extensive documentation, including unredacted witness statements and the full Trust in Care report, which was agreed would be excluded.
• This breach tainted the FPC’s decision-making, as the Applicant was denied the constitutional right to a fair hearing, including the opportunity to cross-examine witnesses on prejudicial assertions.
• The FPC failed to address or give reasons for rejecting the Applicant’s offer of an irrevocable undertaking not to seek removal from the inactive register, rendering the report legally bad for lack of adequate reasons.
• The Board was similarly tainted by receiving all documentation, including the challenged material, and should be prohibited from considering sanction.
• The Applicant did not waive his objections to the admission of challenged materials by participating in the hearings, as the exclusion of such materials had been expressly agreed with the CEO.
• Given the seriousness of the procedural breaches and the prejudice caused, the inquiry should be brought to an end and the FPC report quashed.

Respondents' Arguments

• The inquiry and Board proceedings must be conducted fairly, but the Applicant had admitted serious professional misconduct, limiting the scope of the proceedings to sanction.
• There was only one Fitness to Practice Committee and one inquiry, albeit with changes in membership; the documents placed before the FPC had been put before it during the entire inquiry process.
• The distinction between "intended evidence" (documents admitted for preliminary issue only) and "admitted evidence" (documents admitted by agreement) is recognized; the FPC and Board were capable of distinguishing these in their deliberations.
• The Board is statutorily obliged to receive all materials before the FPC, and restricting such materials would unlawfully interfere with its functions.
• The Applicant’s objections to the admission of challenged materials were waived or estopped by his participation and agreement to admissions at the substantive hearing.
• The FPC was not required to explicitly mention the Applicant’s offer of an irrevocable undertaking in its report; the rejection of the offer was implicit in the recommendation of erasure.
• The court should exercise curial deference and allow the inquiry process to continue, permitting the Applicant to make submissions on sanction before the Board.
• If any procedural irregularity is found, the matter should be remitted to the FPC and Board for reconsideration rather than terminated.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court acknowledged the fundamental right to a fair hearing in disciplinary inquiries, including the right to cross-examine adverse witnesses. It accepted that the challenged documents were admitted before the FPC solely for the limited purpose of determining the preliminary issue of delay and prejudice, as made clear by the legal assessor and the Committee chairman. However, the Court found that there was an express agreement on Day 10 that only certain redacted documents would be admitted as evidence for findings of professional misconduct and sanction recommendation.

Despite this agreement, the full unredacted documentation and challenged witness statements were placed before the FPC and subsequently furnished to the Board. The Court found no affidavit from any FPC member denying that the Committee had regard to the challenged material in making its sanction recommendation. Given the absence of such evidence and the highly prejudicial nature of the material, the Court could not exclude the possibility that the FPC breached the Applicant’s right to a fair hearing by considering evidence he had no opportunity to challenge.

The Court rejected the Applicant’s contention that there were three separate Fitness to Practice Committees, concluding there was only one inquiry with changing membership. It also rejected the respondents’ argument that the Applicant waived his objections by participating in the hearings, finding that the prior agreement to exclude the challenged materials meant no waiver or estoppel arose.

Regarding the offer of an irrevocable undertaking by the Applicant not to seek removal from the inactive register, the Court held that the FPC had a duty to address this in its report and give reasons if it rejected the offer. The absence of any mention or reasoning on this important mitigation factor amounted to a failure to give adequate reasons, warranting quashing of the report on this ground as well.

The Court accepted that the inquiry and Board are specialist bodies with expertise in such matters and that the liability issue had been settled by the Applicant’s admissions. The remaining issue was sanction. The Court exercised its discretion to remit the matter back to the FPC to produce a fresh report and recommendation on sanction, strictly limited to the agreed admissible evidence from Day 10 and 11 of the hearings. It also directed the Board to consider only this agreed evidence when deciding on sanction and to allow the Applicant to make submissions, including on the offer of the undertaking.

Holding and Implications

The Court GRANTED CERTIORARI and quashed the Fitness to Practice Committee report dated 11th October 2018.

The matter was remitted to the Fitness to Practice Committee for reconsideration and the preparation of a fresh report and sanction recommendation based exclusively on the evidence agreed and admitted on Days 10 and 11 of the hearings. The Nursing and Midwifery Board of Ireland was directed to consider only the agreed evidence when deciding whether to confirm the report and determine sanction, allowing the Applicant to make submissions including on the irrevocable undertaking offer.

This decision ensures the Applicant’s constitutional right to a fair hearing is preserved by excluding prejudicial evidence that he had no opportunity to challenge. It also affirms the duty of quasi-judicial bodies to give reasons for rejecting significant mitigation submissions. No new legal precedent was established beyond the application of established principles of fair procedures and reasons in disciplinary inquiries. The inquiry process was not terminated but ordered to continue with appropriate procedural safeguards.