The High Court has declined to cancel a nursing board decision concerning midwife Irene Brennan, leaving in place a requirement that she attend approved courses on cardiotocography (CTG) and documentation and provide proof to the Board.
In a judgment delivered on 20 May 2010, Ms Justice Dunne said it was proper for An Bord Altranais to make its decision. The court did not alter, vary or amend it. The case proceeded on affidavits after an earlier ruling that a full oral hearing was unnecessary; Brennan did not seek to dispute the inquiry’s factual findings and confined her challenge to legal issues.
The Board’s Fitness to Practice Committee had found 26 of 30 allegations of professional misconduct proved. The allegations concerned care provided to Ms W during labour at Wexford General Hospital on 5 February 2004. Her son, identified in the judgment as L., died seven days after birth. The judgment says the inquiry allegations did not claim that his death was caused or contributed to by Brennan or her colleague.
The Board confirmed the committee’s report in February 2009. It advised Brennan about her professional conduct and attached a condition to her retention on the register: she was to attend approved CTG and documentation courses within 12 months of confirmation of the sanction by the High Court, and provide proof to the Board.
Brennan challenged the decision on several grounds, including that the committee had not given adequate reasons, that the expected-standards test for professional misconduct had not been notified to the profession, that its findings did not justify misconduct, and that the Board’s chief executive’s legal representatives had improperly addressed the Board. She also argued that the Board’s legal team had inappropriately met an expert witness whose reports later used different terms to describe the care.
The court held that the Board’s Code did not exclude the expected-standards test and that it had not been a newly introduced test requiring separate notification in this case. It found the committee’s second report gave sufficient reasons, while observing that it might have been more helpful if the report had explained how it treated differing expert evidence. The court also rejected the challenges concerning the expert witness and submissions to the Board.
Justice Dunne criticised committee members’ affidavits that sought to explain the report’s meaning after proceedings began, calling that step inappropriate. She said, however, that it did not undermine the committee’s express finding of professional misconduct. The court’s decision determined the legal challenges on the agreed affidavit record; it did not rehear the underlying evidence or change the Board’s condition.