The Supreme Court allowed the Minister for Defence and the Attorney General’s appeal and dismissed Maria Fitzgerald’s application for certiorari over her discharge from the Naval Service. The Court found that she had not established either that she was denied fair procedures or that the medical classification behind her discharge was irrational.
Fitzgerald enlisted in July 1999 and was diagnosed with coeliac disease after joining. A Medical Board classified her as Constitution Grade 3, below the Grade 2 required for a recruit to pass out into permanent service. Under the Defence Force Regulations, a recruit who was not finally approved was to be discharged. Fitzgerald was discharged in November 1999 after 158 days’ service.
She challenged the classification and the resulting discharge by judicial review. The High Court granted certiorari, quashing the decisions. It found that Fitzgerald had not been adequately warned that her condition could prevent final approval and that the Medical Board had applied its guidance rigidly without assessing her individual circumstances.
In the Supreme Court, the Minister argued that the Board had acted fairly and had not adopted an inflexible policy. The judgment records that Fitzgerald’s specialist, Dr Cornelius Cronin, considered a gluten-free diet compatible with military service. Defence Forces medical officers said that the diet could not be guaranteed during sea-going, field or overseas duties, and that interruption could pose a serious health risk.
The Supreme Court said that a Medical Board making a decision capable of adversely affecting a recruit had to act fairly. It nevertheless concluded that the evidence did not establish that Fitzgerald was denied a fair hearing. The Board’s presiding officer, Commandant Murphy, swore that she had repeatedly warned Fitzgerald that coeliac disease could prevent her from continuing in the Navy. Fitzgerald recalled being told that her health outlook was optimistic but her career outlook pessimistic, but said she understood this as a possible effect on promotion. No one cross-examined Murphy, and the Court said her evidence could not simply be ignored.
On the classification, the Court considered the tension in the medical instructions: one provision said people needing gluten-free diets should not be graded above Constitution 3, while another said cases should be decided on their merits. It held that the Medical Board, as the designated medical experts, was entitled to give substantial weight to the more prescriptive provision. The Court found the stated concern about reliably supplying a gluten-free diet during military duties reasonable and held that the classification and resulting discharge were not irrational.
The Court therefore allowed the appeal and dismissed the application for certiorari. It did not quash the classification or discharge. It also did not decide a separate procedural issue about the order in which the medical classification and appeal had been conducted, because that issue was outside the judicial review leave and had not been argued.