IEHC 428 — IEHC 428 — High Court

1

[APPROVED] [REDACTED]

THE HIGH COURT

[2026] IEHC 428

Record No. 2026 288 MCA

IN THE MATTER OF SECTION 58 OF THE NURSES AND WIDWIVES ACT 2011 AND IN THE MATTER OF N.O, A REGISTERED NURSE

BETWEEN

THE NURSING AND MIDWIFERY BOARD OF IRELAND APPLICANT

AND

N.O. RESPONDENT

Ex tempore JUDGMENT of Mr Justice David Barniville, President of the High Court, delivered on the 18th day of June 2026 2

1. Introduction

1. This is my judgment on an application brought by the Nursing and Midwifery Board of

Ireland (the “Board”) against the Respondent nurse, N.O, for various orders under s. 58 of

the Nurses and Midwives Act 2011 (as amended) (the “2011 Act”). Under that provision,

the Board may make an ex parte application for orders to suspend the registration of a

registered nurse, whether or not the registered nurse is the subject of a complaint to the

Board, if the Board considers that the suspension is necessary to protect the public until

steps or further steps are taken under Part 7 and, if applicable, Parts 8 and 9 of the 2011 Act

(i.e. the fitness to practice process under the 2011 Act).

2. The orders sought by the Board against the Respondent are (a) an order under s. 58 of the

2011 Act suspending the registration of the Respondent on the register maintained by the

Board pending further order of the Court, (b) an order restraining the Respondent from

engaging in the practice of nursing until further order, (c) an order giving leave to the Board

to inform any employer, prospective employer, registration body or any other third party

that the Board considers it necessary to inform of the making of any order of the Court in

these proceedings, and the background circumstances of and leading to the making of any

such orders, and (d) an order giving leave to the Board to publish a statement on its online

register that until further notice, the registration of the Respondent’s name on the register

shall not have effect and is suspended pursuant to s. 58 of the 2011 Act. The Board also

seeks these orders on an interim basis.

3. At the outset of the hearing this morning, since there was no appearance by or on behalf of

the Respondent, my attention was drawn to various affidavits of service in respect of the

application. Those affidavits of service were sworn by Ms Nicola McLoone on the 12 and

17 June 2026, and by Mr John George McGeary on the 16 June 2026. I was satisfied on the

basis of those affidavits of service that the Respondent has been served with the papers for 3

this application. Attempts were made to serve the Respondent in person and by post, and he

was also served by email. He was provided with a remote access link for the hearing this

morning in the event that he wished to participate remotely. Those emails were sent to an

email address that the Respondent used as recently as the 2 June 2026 to communicate with

a representative of the Board. Therefore, I was satisfied that sufficient attempts had been

made to serve the Respondent with the papers, and that the Respondent had been duly

notified of the hearing of the Board’s application this morning, and that the hearing could

proceed this morning on that basis.

2. Factual Background to the Board’s Application

4. The background to the application and the circumstances in which it comes before the Court

are set out in the grounding affidavit sworn by Ms Gráinne Gaffney, Vice-President of the

Board, on 5 June 2026. She explains in her affidavit that the Respondent is a nurse whose

name is registered in the General Division of the register of nurses and midwives. It appears

that the Respondent nurse commenced employment as a staff nurse at a nursing home on 16

January 2026. He resided in staff accommodation on the premises. Following a probationary

review, the Respondent was informed by his employer that he had not successfully

completed his probation period. He was so informed in a letter sent to him on the 29 April

2026. The Respondent’s employment was terminated with immediate effect. However, he

was permitted to remain in the staff accommodation until 20 May 2026.

5. On 1 May 2026, a number of the Respondent’s housemates in his accommodation became

concerned for his welfare, as he had not been seen in the shared areas of the accommodation

for some time. When his room was accessed, the Respondent was found to be unwell and

confused. An ambulance was called, and the Respondent was transferred to hospital. 4

6. The following day, a member of staff of the nursing home reported to the Clinical Nurse

Manager at the nursing home that they had observed a significant quantity of medication in

the Respondent’s room. The Clinical Nurse Manager notified the Person in Charge of the

nursing home, who then attended at the premises with other staff members to investigate.

On entering the Respondent’s room, a large quantity of medication was discovered. This

included sealed packs prescribed to 27 residents of the nursing home, as well as medication

from other healthcare settings, used vials, loose tablets and a syringe needle. Some

medications had identifying medication removed. None of the medications were controlled

drugs.

7. A preliminary internal investigation was carried out by the nursing home, and an audit of

medication and administration records revealed that approximately 195 doses of medication

prescribed to those 27 residents of the nursing home had not been administered to them over

a three-month period between February and April 2026. Records indicated that the

Respondent had signed for medications which were not subsequently administered to

patients. The residents affected were reviewed by their general practitioners, and they

determined that the medication omissions did not result in any deterioration of the residents’

health. The families of those affected residents were also notified of the matter. The

Respondent was arrested by Gardaí on 12 May 2026.

8. On 25 May 2026, Ms Yvanne Kennedy, Interim-Director of Fitness to Practise at the Board,

wrote to the Respondent advising him that, on receipt of documentation from the Chief

Governance Risk and Compliance Officer at the nursing home, who had made a complaint

to the Preliminary Proceedings Committee (the “PPC”) of the Board on 1 May 2026, a

decision was made to refer the matter to the Board to consider whether to apply to the High

Court to immediately suspend the Respondent’s registration from the register of nurses and

midwives, pursuant to s. 58 of the 2011 Act. The letter also informed the Respondent that a 5

meeting of the Board was scheduled to take place on 29 May 2026. Ms Kennedy’s letter

was sent to an email address of the Respondent which appears on the register.

3. Board Meeting on 29 May 2026

9. A meeting of the Board took place remotely on 29 May 2026. The Respondent was not in

attendance and was not represented. At the outset of that meeting, the Board considered

whether it was appropriate to proceed in the absence of the Respondent. The Secretariat

Officer of the Board, Mr Mohamed Nader, made efforts to contact the Respondent in

advance of the meeting. Mr Nader informed the Board that he had made several telephone

calls to the Respondent’s registered telephone number, and spoke with him on one occasion

to explain the purpose and timing of the meeting, and the disciplinary process under s. 58

of the 2011 Act. During that call, the Respondent told Mr Nader that he was in India

undergoing a medical procedure and would remain there for a number of weeks. However,

the Respondent informed Mr Nader that he would attend the meeting on 29 May 2026,

presumably remotely. Mr Nader also sent reminder emails to the Respondent which

included instructions for accessing the relevant documentation for the meeting, and

requested confirmation of receipt of that documentation. Mr Nader informed the Board at

the outset of the meeting that the Respondent had not accessed the documentation on the

file sharing system, nor was he in attendance at the meeting remotely.

10. Having heard the evidence of the extensive efforts made to notify the Respondent, and

having obtained the advice of its legal assessor, Mr Cathal Ó Curráin, the Board decided

that it was appropriate to proceed with the meeting on that day in the Respondent’s absence.

Following consideration of the advice of Mr Ó Curráin, and having heard the submissions

of Ms Kennedy, the Board decided to make an application to the High Court for an order to

suspend the registration of the Respondent under s. 58 of the 2011 Act. The Board 6

considered that the suspension of the Respondent was necessary to protect the public until

steps, or further steps, are taken under Part 7 and, if applicable, Parts 8 and 9 of the 2011

Act. In reaching its decision, the Board considered the relevant test to be applied by it, and

also considered the paramount question as to whether an application for an order suspending

the Respondent’s registration was necessary to protect the public. The Board was of the

view that this case met the threshold set out in the leading Supreme Court decision in

O’Ceallaigh v An Bord Altranais [2000] 4 I.R. 54 in terms of the nature, seriousness and

strength of the case against the Respondent.

11. The Board was satisfied that this was a very serious case, as it involved the alleged theft of

an extensive volume of medication from a large number of patients. The Board was satisfied

also that, on the face of it, the Respondent’s behaviour fell seriously short of the conduct

expected of a registered nurse.

12. In considering the strength of the evidence, the Board was satisfied that the evidence against

the Respondent was sufficiently strong as the investigation uncovered extensive evidence

of a pattern of wrongdoing which led to serious allegations against the Respondent. The

Board was also satisfied that the evidence available to it gave rise to serious public

protection concerns.

13. The Board also concluded that, if an adverse finding was made against the Respondent, it

was likely that a serious sanction would be imposed on the Respondent, including the

potential cancellation of his registration, suspension, or conditions with a required cessation

from practice until conditions are met, depending on the findings and recommendations of

any future fitness to practice inquiry. The Board agreed, therefore, that the threshold for the

bringing of an application to the High Court under s. 58 of the 2011 Act had been reached,

and that such an application was appropriate in the circumstances. 7

14. The Board wrote to the Respondent on 29 May 2026 following the meeting to inform him

of the decision that had been reached at the meeting by email sent on 2 June 2026. The

Respondent replied to Mr Nader by email on 2 June 2026 to apologise for not having been

able to attend the meeting on 29 May 2026. The Respondent stated that he was unable to

participate due to a personal emergency on 28 May 2026 when he was brought to the

emergency department of a hospital and transferred to ICU. The Respondent said that he

was discharged from hospital on 1 June 2026. He regretted any inconvenience that his

absence may have caused, stated that he remained committed to cooperating with the fitness

to practise process and asked that he be advised of the next steps in the process. That was

the most recent communication received by the Board from the Respondent. As I indicated

at the outset of this judgment, despite the fact that numerous emails had been sent to the

Respondent to the same email address, none of them were replied to. It is unclear from the

Respondent’s email of 2 June 2026 whether he remains in India or whether the event he

referred to, being the unexpected personal emergency he had on 28 May 2026, occurred in

India or in Ireland.

4. The Board’s Application

15. In any event, the Board have decided to bring the application under s. 58 of the 2011 Act.

The Board issued an originating notice of motion seeking the orders I mentioned earlier in

my judgment, on 9 June 2026. The matter comes before me today. I indicated at the outset

of my judgment the terms of s. 58 of the 2011 Act. It is clear from that section of the 2011

Act that the Board can make its application on an ex parte basis to the Court. However, in

this case, the Board attempted to serve the Respondent with the papers for its application. 8

5. Relevant Legal Principles

16. The principal criterion which the Board considers when bringing an application such as this

is whether such an application is necessary to protect the public. There are a series of

decisions of the Supreme Court and High Court which set out the relevant legal principles

for applications under the 2011 Act and under similar provisions in legislation governing

other professions in the professional disciplinary area, including s. 60 of the Medical

Practitioners Act 2007 (as amended) (the “2007 Act”). I summarised those legal principles

and referred to a number of those judgments in my judgment in Medical Council v PQ (A

Medical Practitioner) [2025] IEHC 390.

17. For the purposes of this application, and the issues raised in this application, I will

summarise those principles as follows:

(1) The Court has a very wide discretion and a broad jurisdiction in terms of the possible

orders it may make in an application such as this.

(2) The Court’s task on such an application is to assess whether it is in the public interest

that the orders sought should be made. As Geoghegan J stated in the Supreme Court in

O’Ceallaigh, the “paramount consideration” in an application such as this is whether

the orders sought are necessary to prevent “immediate danger to the public” (at p. 133).

(3) On an application such as this, the Court is not deciding the underlying complaint.

It does not resolve conflicts of evidence and does not make findings of fact, save in

exceptional circumstances. 9

(4) Before an application such as this may be brought by the relevant professional

disciplinary body, such as the Board in this case, it was made clear by Barron J in his

judgment in the Supreme Court in O’Ceallaigh that the relevant body must be satisfied

of the following three matters: -

(a) That the complaint is a serious one in terms of the conduct complained of;

(b) That the case against the relevant professional is a strong one and;

(c) That, in the event of an adverse finding in the fitness to practise proceedings,

the appropriate sanction would be to cancel the registration of the relevant

professional either permanently or for a defined period. As noted by Kelly P in

Medical Council v F.C.M. [2018] IEHC 616, other serious sanctions such as

conditional registration and cessation from practice until certain conditions are

fulfilled would also meet the test.

(5) In considering whether to make the orders sought on such an application, the Court

must also be satisfied of the three matters referred to by Barron J in O’Ceallaigh.

(6) Even if the Court is satisfied of these three matters, because of the significant

adverse consequences for the relevant professional person of an interim suspension

order being made, in terms of his or her constitutional rights to a good name and

reputation and to earn a livelihood, the courts have repeatedly stressed that such an

order should only be made “when no other order would serve to protect the community”

(as stated by Morris J in Medical Council v Whelan (unreported, High Court 20

February 2001)) and should be reserved for “exceptional cases” (as stated by Kelly J in

Casey v Medical Council [1999] 2 IR 534 at p. 549). 10

(7) Because suspension orders are reserved for exceptional cases and should only be

made when no other order or measure would adequately protect the public or address

the issues of public concern arising, consideration should be given in each case as to

whether or not appropriate undertakings should be accepted in place of interim

suspension orders. Undertakings may be offered to the relevant professional

disciplinary body or to the court. There is, however, no obligation on the professional

body (or indeed on the Court) to accept such undertakings as may be offered. An

undertaking given to the Court as opposed to one given to the relevant professional

body is enforceable as if it were an order of the Court.

(8) In each case, the Court must engage in a balancing exercise between the public

interest (in terms of the need to protect the public) which is said to be served by the

interim suspension orders sought and the various constitutional rights of the relevant

professional which may be engaged in the case. The court must decide in each case,

and on the basis of the particular facts of the case, where the balance should be drawn.

In particular, the Court must ask itself whether, on the particular facts, the public

interest and the need to protect the public outweigh the constitutional rights of the

professional to a good name and reputation and to earn a livelihood.

(9) Some additional principles will apply where the relevant professional is the subject

of a criminal investigation or criminal proceedings. While the professional in those

circumstances enjoys the presumption of innocence, that presumption does not amount

to a jurisdictional bar to the making of an order under s. 58 of the 2011 Act or under

equivalent provisions in the other legislation in the professional disciplinary area. 11

18. Those are the legal principles to be applied on an application such as this.

6. Decision on the Board’s Application

19. Having considered all of the evidence before the Court on this application and having heard

from Mr Nathan Reilly BL on behalf of the Board, I have concluded that this is an

appropriate case in which to make interim orders under s. 58 of the 2011 Act in relation to

the Respondent.

20. I am satisfied that, on the evidence, the Board has real and legitimate concerns for public

protection in this case. Those legitimate concerns for protection of the public and for patient

safety are highlighted in the affidavit of Ms Gaffney, and in the decision of the Board made

at its meeting on 29 May 2026.

21. While I make no findings of fact on this application, it seems to me that by applying the

legal principles as summarised, the orders sought by the Board on an interim basis are

necessary and appropriate to protect the public on the facts of the case and to address the

issues of patient safety identified by the Board.

22. As I indicated earlier when summarising the relevant legal principles to this case, the Court

does have a wide discretion and a broad jurisdiction in dealing with an application such as

this. My task on this application is to consider whether it is in the public interest that the

orders sought by the Board are granted. I am not deciding the underlying complaint on this

application, and I am not, as I said above, making any findings of fact or resolving any

conflicts of evidence. As it happens, the Respondent has not participated in this application

and has not put forward any evidence for the Court to consider.

23. I am satisfied that, at its meeting on 29 May 2026, the Board did carefully consider the three

matters in O’Ceallaigh as set out by Barron J and as summarised above, which are relevant 12

to an application such as this. I too have carefully considered those three matters. The

complaint in this case and the issues arising from it which have led to this application are

extremely serious in terms of the alleged conduct. On the basis of the material provided, it

can be said that the case against the Respondent is a strong one, although I am not

determining the case, and I am not making any findings of fact in that respect on this

application. It is clearly the case, as the Board considered it, that in the case of an adverse

finding against the Respondent in fitness to practise proceedings, the appropriate sanction

would be very serious because of the need to protect the public, and could potentially be

cancellation of the Respondent’s registration, or other serious sanctions.

24. I have also considered, in carrying out the balancing exercise which is necessary for the

Court to carry out between the need to protect the public and the constitutional rights

enjoyed by the Respondent to his good name and to earn a livelihood, whether it would be

appropriate to make the orders sought by the Board. I am satisfied that that balance should

clearly be drawn in favour of making the orders sought by the Board because of the need to

protect the public in the circumstances outlined in Ms Gaffney’s affidavit.

7. Orders Made

25. In those circumstances, I will make the orders sought by the Board at paras. (i) – (iv) of the

originating notice of motion on an interim basis. Those orders are to last until after the

hearing of the matter on 23 July 2026. I will adjourn the motion to 10:30am that day. I will

direct that the Respondent be served with the order made today with a letter informing him

of the making of the order by email to the email address used by the Respondent as recently

as 2 June 2026. I will direct also that if the Respondent is to file any responding evidence,

that that must be done on affidavit no later than 5pm on 16 July 2026. I will give the

Respondent liberty to apply to set aside this order, should he be so minded, on 48 hours 13

notice to the Board, and I will give general liberty to apply to both parties and will reserve

the costs of this application.