Supreme Court dismisses appeal as judicial review application is moot due to appellant abandoning proposed medical referral.

THE SUPREME COURT

Appeal No: 298/2008

Denham C.J.

McKechnie J.

MacMenamin J.

Between/

Kathleen Fitzpatrick

Applicant/Appellant

and

The Board of Management of St. Mary’s Touraneena National

School and the Minister for Education and Science

Respondents

Judgment delivered on the 19th December, 2013 by Denham C.J.

1. This is an appeal by Kathleen Fitzpatrick, the appellant, who is referred to as “the appellant”, against the judgment of the High

Court (Irvine J.), delivered on the 24th July, 2008, and the order perfected on the 31st July, 2008.

2. There is also a motion before the Court brought by the Board of Management of St. Mary’s Touraneena National School, the first

named respondent, which is referred to as “the Board”.

3. The second named respondent, the Minister for Education and Science, is referred to as “the Minister”.

4. In the statement of grounds dated the 31st July, 2006, filed on behalf of the appellant to ground the application for leave to apply

for judicial review, the appellant set out in paragraph E a factual précis and the legal grounds.

5. On the 31st July, 2006, the High Court (Peart J.), granted to the appellant leave to apply by way of application for judicial review

for the reliefs set out in paragraph D in the statement of grounds, on the grounds set out in paragraph E.

6. The legal grounds set out in the statement of grounds were:-

Legal Grounds

(i) The Board acted ultra vires in seeking to make a referral to the psychiatrist Dr. Mohan when the Minister’s Chief

Medical Officer had certified the appellant being fit to return to work. The appellant has also been certified as fit to return

to work by her General Practitioner, Dr. Tom Higgins and by Dr. Stephen Browne, Consultant Psychiatrist.

(ii) The decision of the Board to invoke clause of the Primary Circular and to refer the appellant to Dr. Mohan is further

vitiated or tainted by being in breach of Circular 10/05 clause 7 as the appellant has met the criteria to resume her

duties. The Circular is quite clear in that it states that the duty of referral is to be made by the local medical adviser of

the Board.

(iii) The Board acted ultra vires in seeking to invoke clause 7 of Primary Circular 10/05 in circumstances where what was

involved on the Board’s own case was an issue of "interpersonal difficulties". Further or in the alternative, the purported

invocation by the Board of clauses 7.3 and 7.4 of Primary Circular 10/05 was so irrational that no Board of Management

acting reasonably could have decided to seek to invoke clause 7.3 and 7.4 of Primary Circular 10/05 and/or its decision to

do so was vitiated by bias.

(iv) The Board sought wilfully to influence or pre-empt the outcome of the psychiatric assessment of the appellant by its

communications with Dr. Mohan (by means of either the communications of the Board directly or the communications by

its solicitors, Arthur O'Hagan, either in this case or in other similar cases) including the document prepared by the

Principal, Mrs. Nix entitled "Concerns regarding Kathleen Fitzpatrick", and acted wholly in breach of the principles of fair

procedures and of constitutional and natural justice.

(v) The decision of the Board is in excess of jurisdiction and an infringement of the constitutional rights of the appellant.

(vi) The Education Act 1998 makes reference to articles of management agreed from time to time by various bodies

including trade unions and is as follows:

“2.- in this Act except where the context otherwise requires

‘articles of management’ means any instrument relating to the operation and management of schools, as are in

operation on the commencement of this Act and as shall be agreed from time to time by patrons of schools, national

associations of parents and recognized trade unions and staff associations representing teachers;”

The Act, in the section dealing with a Patron, states at Section 8(6):-

“The Patron of a school shall carry out the functions and exercise the powers conferred on the patron

by this Act and such other functions and powers as may be conferred on the patron by any Act of the

Oireachtas or instrument made thereunder, deed, charter, articles of management or other such

instrument relating to the establishment or operation of the school.”

The decision in breach of clause 7 of Primary Circular 10/05 to refer the appellant for psychiatric assessment made

by the Board was made in breach of the functions and powers conferred on it by the above mentioned Act.

(vii) The decision made by the Board in seeking to refer the appellant to a psychiatrist because of “interpersonal

difficulties” was in breach of the appellant’s constitutional rights, and/or in breach of statutory duty and/or in breach of a

duty of care owed to the appellant. The appellant has thereby suffered professional prejudice, upset, distress, loss and

damage.

(viii) The respondents have acted and continue to act in disregard inter alia of the constitutional rights and legitimate

expectations of the appellant, her rights under the European Convention of Human Rights and in breach of the principles

of fair procedures and of constitutional and natural justice.

The last ground was withdrawn in the High Court. Thus, all the grounds set out in the statement of grounds in applying for judicial

review relate to the Board.

The High Court

7. In the High Court before Ms. Justice Irvine, reliefs were sought against both the Board and the Minister. These reliefs included, as

against the Board, the following declarations: that the Board had acted ultra vires the provisions of clause 7 of the Primary Circular

10/05 issued by the Minister, that the Board had acted in breach of natural and constitutional justice, and that the Board’s invocation

of clauses 7.3 and 7.4 of the Primary Circular 10/05 was unreasonable, and was made otherwise than in good faith. An order of

certiorari was sought to quash the decision of the Board to invoke clauses 7.3 and 7.4 of Primary Circular 10/05. Injunctions were

sought, including one restraining the Board from excluding the appellant from St. Mary’s Touraneena National School until the

appellant had attended a medical assessment by Dr. Mohan, or other psychiatric assessment at the behest of the Board. The reliefs

sought against the Minister included an injunction restraining the Minister from facilitating the invocation by the Board of clause 7 of

Primary Circular 10/05 in relation to the appellant; and an injunction restraining the Minister from doing anything to facilitate the

exclusion of the Board of the appellant from the resumption of her responsibilities as a teacher. Thus, the core of the matter was

clause 7.3 of the Primary Circular 10/05.

8. The High Court ordered that the application be refused and that the appellant pay to the Board and the Minister the costs of the

proceedings.

9. The High Court was satisfied that the Board acted intra vires at the time it invoked its right to have the appellant subjected to an

independent specialist medical review pursuant to clause 7.3 of the Circular of 27th January, 2006. The High Court concluded that the

Board, in seeking to set in train the procedure whereby the appellant would be referred for independent medical examination, did not

act in breach of its contract with the appellant, and found that there was nothing invalid in the manner in which the appellant was

referred for examination by Dr. Mohan.

10. The High Court concluded that at all times the Board invoked its rights under clause 7.3 at a time when it had reason to have

bona fide concerns regarding the appellant’s potential fitness to return to work.

11. The High Court rejected the sinister motivation imputed to the Board by the appellant, and also rejected the assertion that the

decision of the Board to invoke clause 7.3 was irrational.

12. In relation to the application against the Minister, the High Court held that the appellant’s claim was predicated on an assumption

that the Minister permitted the Board to act in a manner which was unlawful. The High Court concluded to the contrary and held that

the Minister could not be accused of standing idly by and permitting the appellant to be subjected wrongfully to a medical examination

under clause 7.3. Further, having regard to the High Court’s conclusion that the Minister was under no obligation to conduct any

inquiry prior to terminating payment of a teacher’s salary where the teacher had exceeded the period of paid sick leave provided for in

the Circular, the High Court rejected the appellant’s claim against the Minister.

13. The appellants have appealed the decision of the High Court to this Court.

Notice of Appeal

14. The appellant filed a notice of appeal setting out 42 grounds of appeal which included inter alia the following grounds:-

In relation to the appellant’s claim as against the Board, the learned High Court judge erred in law and in fact:

(i) In holding that the Board of Management had validly invoked clause 7.3 of Primary Circular 10/05 and did not act

ultra vires its powers.

(ii) In concluding that the decision of the Board to have the appellant independently medically examined under

clause 7.3 was bona fide for the purposes for which the clause was intended;

(iii) In failing to construe clause 7.3 of Primary Circular 10/05 by reference to the appellant's constitutional rights

and to her rights under the European Convention on Human Rights Act 2003;

(iv) In construing clause 7.3 of the Circular to mean that the clause can be invoked once there were bona fide

concerns regarding the teacher's potential return to work, and the clause is not confined to concerns which relate

solely to ill-health;

(v) In holding that it was unnecessary for the Court to reach any conclusion as to whether or not there was any

breach of natural justice or want of fair procedures in relation to the medical examination proposed with Dr. Damian

Mohan on the grounds that the examination never in fact took place;

(vi) In failing to hold that the “concerns” document was grossly prejudicial and reflected a lack of bona fides on the

part of the principal and chairperson and/or the Board of Management; and

(vii) In failing to hold that the individual appointed to carry out her medical examination was not in the

circumstances independent.

In relation to the appellant's appeal against the Minister, it was claimed that the learned trial judge erred in fact and

in law:-

(i) In failing to find for the appellant as against the Board as a preliminary finding of liability against the Minister;

(ii) In holding that the Board had acted intra vires in invoking clause 7.3 of the Circular and that the Minister was

entitled in the circumstances to discontinue the payment of the appellant's salary; and

(iii) In holding that there is no onus on the Minister, once the permitted period of sick leave has expired, to conduct

any further enquiry prior to withdrawing salary payments in pursuit of the Circular.

Submissions

15. Written and oral submissions by the appellant, the Board and the Minister, were received and considered by the Court.

16. The submissions centred on the proper interpretation and application of clause 7.3 of Primary Circular 10/05. This clause has since

been superseded and consequently this decision is of historic value and does not refer to the current law.

17. The appellant’s submissions focused on two main issues; that the invocation of clause 7.3 was for an improper purpose and was

ultra vires the Board’s powers; and that the manner in which clause 7.3 was applied was in breach of natural justice.

18. The Board’s submissions essentially maintained that there had been no error by the learned High Court judge. It was submitted

that the appellant had failed to discharge the burden of proof upon her in these matters and that the trial judge correctly decided the

issues on all the evidence before her.

19. It was submitted on behalf of the Minister, that he is neither a necessary nor a proper party to the proceedings.

Time

20. This appeal comes on for hearing seven years after leave to apply for judicial review was granted, and five years after the

decision of the High Court which is under appeal. The delays are not the fault of the parties, but are very unfortunate.

21. In the years since the High Court decision events have moved on. The appellant is now on a different panel and is teaching in a

different school. Thus, the primary relief sought by the appellant in relation to St. Mary’s Touraneena National School has a degree of

unreality. However, events which occurred after the hearing in the High Court and which have altered the situation are not part of

the evidence in this hearing. This case is based on the leave granted by the High Court in 2006, and on the judgment of the High

Court in 2008. Matters outside the leave granted in 2006 may not be part of this appeal.

Clause 7.3 of Primary Circular 10/05

22. The case relates to Primary Circular 10/05, which has been superseded, and to actions of the Board which it took under clause

7.3 of Primary Circular 10/05. The Board was the employer of the appellant. Teachers who are employed by a Board, agree to comply

with the Rules for National Schools, and are then paid by the Minister.

23. The Circular in issue in this case revised rr. 93, 112 and 113 of the Rules of National Schools. There is an employment contract

between the appellant and the Board, and the Circular is part of the contractual relationship between the parties. However, the

Circular brings a public law element to the circumstances.

24. The Circular established a new sick leave scheme at the time. It was a new scheme agreed between the Department, the Irish

National Teacher Organisation (“the INTO”) and schools organisations whereby teachers who were employed by Boards could avail of

sick leave.

25. Clause 7 was entitled “Resumption of duty following paid/unpaid sick leave”. It read inter alia as follows:-

“7.1 A permanent teacher cannot resume teaching following a period of paid sick leave of more than three consecutive

months without providing a medical certificate of fitness to resume full-time teaching. This certificate should be provided

to the Board of Management at least two weeks prior to the proposed date of resumption of teaching duties.

7.2 A teacher may apply to the Board of Management to resume duty at or before the end of the unpaid sick leave

period, subject to the teacher furnishing a comprehensive report from a recognised medical doctor stating that s/he is fit

to resume duty. This report is referred to the Chief Medical Officer who will determine if the teacher is fit to resume duty.”

7.3. If the Board of Management has any concerns regarding the teachers' proposed resumption of duty, it may refer the

teacher for an independent medical assessment prior to the proposed date for resumption of teaching. It is recommended

that each Board of Management should have a local medical advisor for dealing with routine occupational medical matters

preferably with some occupational medical experience or training. When referral for independent specialist assessment is

required, the local medical advisor to the Board of Management should nominate the appropriate specialist suited to the

teacher's underlying medical disorder. A teacher, who fails to attend for independent medical assessment at the request

of the Board of Management, will cease to be paid incremental salary until such time as s/he attends for assessment.

Costs in respect of the independent medical assessment will be borne by the Board of Management.”

26. The appellant’s case was that the Board failed to comply with the Circular, and failed to comply with the sick leave scheme.

27. Under clause 7.1, a permanent teacher cannot resume teaching following a period of paid sick leave of more than three

consecutive months:-

“[W]ithout providing a medical certificate of fitness to resume full time teaching. This certificate should be provided to the

Board of Management at least two weeks prior to the proposed date of resumption of teaching duties”.

28. It appears that the appellant had taken approximately 360 sick days over a four year period, and that she had been off sick since

the previous September. Thus, she came within clause 7.1.

29. The appellant did forward medical certificates to the Department of Education and Science, so that the Department could verify

her illness, and pay for a substitute teacher. This meant that the Department was paying two salaries during her sick leave.

30. The appellant argued that the Board did not have sufficient reason to seek an independent medical opinion.

31. The appellant contended on this appeal that the Board did not have concerns, or bona fide concerns, for the purpose of clause

7.3, in that its concerns related only to the threat of litigation. It was submitted that the Board did not have concerns for the

purpose of clause 7.3 and did not act bona fide and/or acted unreasonably and ultra vires.

32. The threat of litigation is not a ground set out in the statement of grounds. There was no application for an extension of the

grounds. The High Court rejected the submission that the threat of litigation was the basis for the Board’s action under Circular 10/05.

Thus, there is no basis for an appeal on this issue, as it was not in the grounds granted for the judicial review, and those grounds

have not been extended.

33. The primary issue on the appeal is whether the Board was entitled to invoke clause 7.3 of the Circular in circumstances where the

appellant had been certified as fit to return to work by her GP, Dr. Tom Higgins, by Dr. Stephen Browne, her Consultant Psychiatrist,

and by the Chief Medical Officer (“the CMO”).

34. The learned High Court judge held that such medical certificates were not a bar to the operation of clause 7.3. The High Court

held that the Board was entitled to apply clause 7.3 provided it had bona fide concerns regarding the appellant’s fitness to return to

teaching duties.

35. It was raised as a ground of appeal by the appellant:-

“Was the referral by the [Board] of the [appellant] for an independent medical assessment for an improper purpose such

that its invocation of 7.3 by the Board was ultra vires its powers”?

The learned High Court judge decided that the Board had acted bona fide;-

“In seeking to determine whether the Board invoked clause 7.3 in response to bona fide concerns held by it regarding the

applicant’s health, or alternatively, for any one of the numerous, sinister or improper motives attributed to the Board by

the applicant, the Court must first of all note that the burden of proof in this respect is on the applicant. Further the

Court must reach its conclusions having regard to the denials made by the chairperson of the Board as to the motivation

which has been imputed to it by the applicant given the applicant has not sought to cross-examine the chairperson in

respect of such denials. Secondly, as was submitted on behalf of the first named respondent, the Board knew from its

legal advisors that once personal injuries litigation was commenced by the applicant, it would be entitled, in any event not

only to have the plaintiff medically examined but also to discovery of any documentation pertaining to her health issues.

The Court, having considered the entirety of the evidence placed before it, concludes that it would be entirely artificial to

determine this issue as urged by the [appellant] …

The Court concludes that the only reasonable approach to determine this issue is to consider all the evidence emerging

from the affidavits and exhibits and having done so, to assess whether the [appellant] has discharged the burden of proof

in relation to her assertion that the invocation by the Board of clause 7.3 was not motivated by bona fide concerns which

permit the operation of the relevant power.

Having carried out the exercise referred to in the immediately preceding paragraph, the court concludes that it is

disingenuous for the [appellant] to characterise her referral for independent medical specialist assessment as some type

of retaliatory measure instigated by her employer arising from her complaints of bullying and harassment.

[…]

The Court in seeking to determine the likely dominant purpose for the invocation by the board of clause 7.3, simply cannot

ignore the full facts which emerge from the affidavits and exhibits and in particular the following facts which are not

disputed.”

The learned High Court judge referred to uncontested facts:-

“There is nothing in the documentation to support the [appellant’s] assertion that the decision to invoke clause 7.3 was

irrational. Neither can the Court conclude that the dominant purpose for which the clause was invoked was, as suggested

by the [appellant] for the purpose of impeding her pursuit of her potential personal injury litigation. It appears to this

Court that the decision of the Board to have the [appellant] independently medically examined under clause 7.3 was bona

fide for the purposes for which that clause was intended.”

36. It is clear that the High Court was not satisfied that the appellant had discharged the required onus of proof in her application for

judicial review.

37. The High Court concluded on this aspect of the case:-

“The Court therefore concludes that the Board, in invoking the provisions of clause 7.3 did not act ultra vires its powers

and that its decision to invoke clause 7.3 was entirely rational in all of the circumstances of the case. The court’s

conclusion that the Board had bona fide concerns regarding the [appellant’s] health is fortified by the content of notes

produced on the [appellant’s] behalf …”

38. The query was also raised as to whether there was a failure to comply with the provisions of clause 7.3 of the Circular and, if so,

whether the appellant was entitled to any declaratory or injunctive relief as claimed in the proceedings.

39. The High Court held, inter alia:-

“The court accordingly concludes that the Board was not in breach of the provisions of clause 7.3 of the Circular. Further,

if the Court is incorrect in this respect, the fact that the Board may have been in error on its first attempt to implement

the provisions does not render in any way irregular the subsequent referral of the applicant by Dr. Mahony for review by

Dr. Lawler,Consultant Psychiatrist, for the purposes of obtaining the appropriate independent medical report sought under

the provisions of the said clause”

40. The fact that the appellant did not attend Dr. Lawler was starkly described by the High Court:-

“Neither the [appellant], nor her solicitors, nor her trade union representative has chosen to advise the Court as to why,

in the light of the above correspondence, the [appellant] has failed to attend a medical examination with Dr. Lawler in

circumstances where the only matter standing between the [appellant] and her return to teaching duties is a supportive

report from Dr. Lawlor.”

41. It appears that the appellant’s decision to seek judicial review overtook events.

42. On the face of it, the referral to Dr. Lawler is within Clause 7.3. However, the documentation and process was never continued.

43. There was some discussion of the word “independent”. I am satisfied that it refers to an independent specialist, i.e. meaning not

the appellant’s specialist. A doctor retained by the Board would be required to give an independent professional opinion, independent

of both the appellant and the Board.

44. The High Court held:-

“‘The court concludes that the only basis upon which the [appellant] could allege there has been a breach of the

provisions of clause 7.3 such that would afford her any right to relief would be for her to establish that the individual

appointed to carry out her medical examination was either not ‘independent’ or did not have the appropriate ‘specialist’

expertise for the purposes of being in a position to provide the Board with the report it was entitled to receive under

clause 7.3. Given that no such assertion has been made the Court concludes that there is no validity to the applicant’s

complaint that there was any breach of clause 7.3”

45. The appellant also raised the issue as to whether the Board, in its operation of clause 7.3, acted in breach of natural and

constitutional justice. The High Court rejected this submission.

Mootness and natural justice or unfair procedures

46. On the question of mootness in relation to the proposed medical examination by Dr. Mohan, the High Court held:-

“The court is of the opinion that it is unnecessary for it to reach any conclusion as to whether or not there was any

breach of natural justice or want of fair procedures in relation to the medical examination proposed with Dr. Mohan. The

examination never in fact took place and the [Board] offered, in response to demands and complaints made by the

[appellant], to have her examined by Dr. Lawler, Consultant Psychiatrist attached to Cork University Hospital, on the basis

that he would only be furnished with the information he required. The [appellant] made no objection to the proposal

referred to in the letter of Arthur O’Hagan’s Solicitors dated the 15th of June, 2006 wherein they advised the [appellant’s]

solicitors as follows:-

‘The issue between us would appear to come down to the right of medical specialist nominated on behalf of the

Board of Management, to request a briefing from school management prior to carrying out the assessment. Should

your client remain unwilling to attend Dr. Mohan, our client is prepared to request Dr. O’Mahony to refer her for

assessment to another relevant specialist on the understanding that both our respective clients would comply fully

with any requirements the specialist concerned may have with regard to the assessment’

It is clear from the aforementioned paragraph that the representations made on behalf of the [appellant] caused the

Board to abandon any potential reliance upon a report received from Dr. Mohan and instead the Board agreed to have the

applicant medically examined by an independent psychiatrist who would not be furnished with the allegedly offending

document prepared by Mrs. Nix and without meeting any representative from the [Board]. In such circumstances the

court concludes that any complaint made by the [appellant] in relation to want of natural justice and/or fair procedures

referable to their first effort to invoke clause 7.3 arising from the referral of the applicant to Dr. Mohan constitutes a

moot.”

47. I agree with and would affirm these findings of the learned judge.

48. This case requires to be decided on its own facts and on the law as it then stood, including Primary Circular 10/05. Reference was

made to Delaney v. Central Bank [2011] IEHC 212. However, the facts and circumstances make that case distinguishable. In this case

the Board, at the request of the appellant, abandoned the proposed examination by Dr. Mohan, and suggested that an alternative

doctor be appointed. When Dr. Mohan wrote to the appellant about that appointment, the appellant did not reply but applied to the

High Court for leave to appeal by way of judicial review.

Reliefs

49. The appellant has sought a variety of reliefs, including declarations, an order of certiorari, injunctions and mandamus. The reliefs

sought are in relation to the actions of the Board pursuant to clause 7 of the Primary Circular 10/05.

50. These are judicial review proceedings in which the burden lies upon the appellant. There were very comprehensive affidavits filed

on behalf of the parties, from which the learned trial judge had a firm foundation upon which to make the determination which she did.

51. These reliefs relate to the operation of clause 7.3 of the Circular in 10/05. The decision as to the appointment with Dr. Mohan

was held to be a moot by the High Court, which decision I affirm. So too is the issue of the appointment with Mr. Lawler, in all the

circumstances.

52. If these reliefs sought were deemed to be appropriate now, it would simply mean that the Board would be required to re-

commence the procedures.

53. However, as I find no error in the judgment of the High Court, I do not need to consider whether these or any further reliefs are

relevant.

Proceedings against the Minister

54. As previously pointed out, the legal grounds set out in the statement of grounds sought and granted for the judicial review were

against the Board only. The learned High Court judge dismissed the application for judicial review against the Minister. I would affirm

that decision. The learned High Court judge proceeded to deal with matters further, as a trial judge may do when they have dismissed

a ground, but continue so that they would be of assistance, should there be an appeal. That is not necessary in this Court. I would

affirm the decision of the High Court and dismiss the appeal insofar as it relates to the Minister.

Conclusion

55. I am satisfied that the Board could invoke clause 7.3 of the Circular, as they did. However, owing to events, the appeal is moot in

relation to the appointment with Dr. Mohan. It is also moot in relation to the proposed appointment with Dr. Lawler, as the appellant

did not take up that suggestion. I am satisfied that there was no error in law by the learned trial judge, and there was a foundation of

facts in the evidence upon which she could reach her conclusion. Further, I am satisfied that there was no error in the analysis of the

issues of bona fides, natural justice, or unfairness.

56. Consequently, I would affirm the judgment of the High Court and dismiss the appeal.