Supreme Court allows appeal against discharge of navy recruit with coeliac disease for irrationality.

THE SUPREME COURT

Appeal No. 101/2002

Hardiman J.

Geoghegan J.

Fennelly J.

BETWEEN

Maria Fitzgerald

Applicant/Respondent

and

Minister for Defence Ireland and the Attorney General

Appellant/Respondent

JUDGMENT delivered on the 19th day of November, 2003 by FENNELLY J.

This is an appeal from a judgment of McKechnie J. He granted orders of certiorari to the Applicant/Respondent (“the Applicant”), a

navy recruit, quashing a decision to discharge her from the Defence Forces on the ground that her appointment had not been finally

approved. The reason for her discharge was that she had been discovered to be a coeliac.

The Facts

The Applicant enlisted in the navy on 5th July 1999. She had undergone a medical assessment prior to enlistment. In the summer of

1999, she was suffering from a persistent respiratory tract infection. She was twice admitted to the Military Medical Facility at Collins

Barracks, Cork and then to University College Hospital.

It came to be suspected that she was suffering from coeliac’s disease. Commandant Mary Murphy, a medical doctor and a member of

the Medical Corps of the Defence Forces, ordered tests including a coeliac antibody screen, which proved positive. Commandant

Murphy advised the Applicant that it looked like she had coeliac’s disease. Commandant Murphy arranged for the Applicant’s admission

to University College Hospital on 1st September 1999. Commandant Murphy made a clinical note on 15th September 1999 as follows:

“ability to remain in service??- Coeliac Disease?? Grade 3.”

Commandant Murphy has deposed on affidavit to the fact that she told the Applicant on several occasions about this time that “there

could be a problem with her career in the navy because she would have to be in the highest grade to pass out of recruit training...”

and that she was “afraid that a diagnosis of Coeliac’s disease could prevent final approval.” In reply to this, the Applicant has sworn

that her only recollection is that Commandant Murphy said that “she was optimistic about my health but pessimistic about my

career.” She swore that she had no idea what these words meant or that it meant that she would not pass out. She assumed that it

would only affect her promotional prospects in the navy.

In the event, the coeliac diagnosis was confirmed on 19th October 1999, in a letter from a Registrar at University Hospital to

Commandant Murphy. This had been preceded by a verbal confirmation, also to Commandant Murphy on 12th October.

On 6th October, the Applicant presented to another medical officer, Commandant Gerard Kerr, for medical grading classification, a

procedure, which, as will appear, is necessary to the process of final approval of recruits for permanent service.

On 21st October, the Applicant was called to appear before a Medical Board consisting of Commandant Murphy, presiding, and

Commandant Kerr.

The Medical Board had before it the Applicant’s file, containing her complete medical record. In addition and crucially, it had before it

instruction No. 4 of the Director, Medical Corps (“DMC 4”), one paragraph of which, set out fully later in this judgment, under a

reference to coeliac’s disease, states that “personnel requiring gluten free diets should not be graded higher that “Constitution 3.” In

order to pass out, a recruit would have to have a Constitution Grade of at least 2. The Board classified the Applicant accordingly and

recommended that she not be finally approved in accordance with DFR A.10, paragraph 58(a).

On 2nd November, the Applicant was paraded and was told that the Medical Board had directed that she be classified as a person not

having been finally approved. She was discharged from the Naval Service on this ground. She had served for 158 days and was

otherwise qualified for final approval, as she had successfully completed all other elements of her training. She was informed of her

right to appeal in writing within seven days. She stated in her appeal that she had been examined by Dr Cornelius Cronin, a “top

specialist in coeliac’s disease” and that he had informed her that there were only minor traces of coeliac disease in her tissue which

would have no effect whatever on her if she did not eat food containing wheat, barley or rye. She attached a copy of Dr Cronin’s

letter to her notice of appeal. She said that she would have no difficulty in adhering to such a gluten-free diet. Dr Cronin, in his letter

said:

“I myself believe that coeliac disease should not be defined as an impairment or disability at all…. Anyone with a modicum of

intelligence should have no difficulty adhering to a gluten-free diet, either at sea or when ashore, or even in combat

conditions.”

The appeal was heard and considered by Colonel Maurice Collins, Director of the Medical Corps, but rejected by him. In his affidavit in

these proceedings, Colonel Collins does not advert at all to Dr Cronin’s report, but deposes that a failure to adhere to the appropriate

diet can result in severe ongoing symptoms and may lead to major complications. He also swears that operational duty may last for

quite long periods and that “despite best efforts, there can be no guarantee of the continual supply of essential dietary foods….”

Lt. Colonel Monaghan, Deputy Director of the Army Medical Corps, in an affidavit deposes to the reasons for the classification of the

Applicant as Constitution grade 3. He says that this was done in line with DMC 4. He also deposes as follows:

“15. As the Applicant’s health is very much dependant on her strict compliance with a gluten-free diet, and as diet cannot be

readily accommodated or guaranteed within the Defence Forces ration scales, particularly when the Applicant would be

engaged in sea-going and collective field training or overseas services which may last for a considerable length of time, it

would be irresponsible of the Naval Authorities and, indeed a failure of its duty of care to the Applicant to deploy the Applicant

in such circumstances. Since the normal supply of all items, including food to personnel deployed on active service is by

military systems, cognisance has to be taken of the fact that these systems are seldom such that they can guarantee supply

of special dietary items to troops in the field. Any interruption of the gluten-free diet would cause an unacceptable risk to the

health of the Applicant and, therefore, the Applicant was graded Constitution 3.

16. Persons who have been discovered to have Coeliac Disease subsequent to final approval are then graded Constitution 3

and are restricted with regard to the range of duties they are considered suitable for. For example, in other words, they are

not deployed in combat areas (whether as combatants or as peace keepers) as they may be cut off from their sources of

supply and there may be severe interruption of supplies of items essential to the maintenance of their health.”

The Regulations

All the foregoing took place in accordance with the Defence Force Regulations (“DFR”), which, though statutory instruments adopted

and passed pursuant to the Defence Acts, are exempt from publication. Order 58 of DFR A.10 deals with discharge from the Defence

Force. Paragraph (a) provides: “When a recruit is not finally approved for service he will thereupon be discharged with all convenient

speed.”

DFR A.12 deals with medical treatment in the Defence Force. Article 61 (2) requires that recruits be classified before being finally

approved. Article 66 (1) provides that classification is to be carried out in accordance with instructions which “shall be issued by the

Director, Medical Corps.”

Articles 70 to 74 of DFR A.12 lay out a detailed scheme of medical classification. Some headings deal with specific matters such as

military fitness, keenness of vision, colour vision, keenness of hearing. The relevant matter for present purposes is in Article 71(2)

headed: “Constitution.” Grade 3 under this heading is explained in these terms: “Personnel with moderate impairments or disabilities

who have a chronic medical condition which requires supervision and treatment more frequently than every six months, or where an

unexpected interruption of treatment will cause an unacceptable risk to health.” As already stated, this is below the grade required

for recruits, who must reach grade 2 at least.

DMC 4 was drawn up pursuant to DFR A.12, Article 66, and commences by stating that it is to assist “Medical Officers and Medical

Boards in the classification/reclassification of personnel……” Paragraph 2 states:

“The statements are NOT intended always to bind the Medical Officer and Medical Board but to place the officer or soldier in

the suggested grade, for it is recognised that each case must be decided on its merits…….”

Article 14, however, reads as follows:

“Coeliac Disease. Personnel who require gluten free diets should NOT be graded higher than Constitution 3.”

The Proceedings

By an order of 6th March 2003, O’Caoimh J granted the Applicant leave to apply for orders of certiorari of the decisions of the Medical

Board: determining that she should be discharged from the Defence Force and that she had not been fully approved. Although the

order does not expressly say so, it was accepted that the order of leave was intended to extend to certiorari of the adverse

determination of the Applicant’s classification as Constitution, grade 3.

The essential permitted grounds of the leave were that:

The decision of the Medical Board was unreasonable and irrational, in particular, because the Board adopted a fixed and

inflexible policy regarding DMC 4 and failed to take account of the personal circumstances of the Applicant; hence her

classification as Constitution grade 3 was unreasonable and irrational;

The Board failed to act in accordance with principles of basic fairness of procedures and of natural and constitutional justice

and, in particular did not call or permit any representations by the Applicant and did not seek any evidence regarding her coeliac

condition

The grounds of opposition, filed on behalf of the Minister can be reduced to two points, namely:

that the Board did not adopt a fixed or inflexible policy and did, in accordance with DFR A.12, take account of the Applicant’s

personal circumstances and that the Constitution classification, grade 3 was not irrational;

that the Applicant was not denied the benefit of fair procedures or of natural and constitutional justice.

It should be noted, therefore, that the Minister does not dispute the Applicant’s entitlement, as a recruit, in connection with the

decisions leading to her discharge from the Defence Force, the procedural protections normally encompassed by the expression,

“natural justice.” The Minister has not, either, at any stage, taken the stand that the Defence Force either has or is entitled to have

a fixed policy of excluding coeliacs from service.

At this point, it is appropriate to mention and dispose of a possible procedural issue, which could have been raised by the Applicant,

but which is clearly outside the scope of the leave granted to apply for Judicial Review. Article 66(2) of DFR A.12 provides that

routine classification is to be carried out by a medical officer with an appeal to a medical board. This procedure was, in effect,

reversed in this case. The first determination was made by the Medical Board and the Applicant was granted a right of appeal from its

determination to Colonel Collins, another medical officer. Since, as I have stated, the Applicant did not obtain leave to raise this

matter and, indeed, has not sought to argue it either in the High Court or on appeal, it is unnecessary to consider it further.

McKechnie J held with the Applicant in respect of both the issues raised in the Judicial Review, while reversing their order of

appearance in the original Judicial Review order.

Firstly, so far as natural justice and fairness of procedures was concerned, he considered that the Applicant was significantly

disadvantaged at the hearing of the Medical Board of 21st October 1999. She had never believed that being on a gluten free diet

would ever be considered as a sole reason for not being finally approved. At no time prior to 21st October was she informed of the

most serious outcome which could result from the medical investigations by the Board on that date. The result was that she did not

attempt to exhaust her ability to dissuade the Board from making the recommendation which she did. More particularly, she did not

seek to have Dr Cronin attend in person or produce a report before the Board.

Secondly, McKechnie J held that the Medical Board, and in particular, Commandant Murphy, were of the view that, once coeliac

antibodies were present, the Applicant would automatically get a grade 3 classification under the heading, “Constitution.” In spite of

paragraph 2 of DMC 4, the Board did not consider the case of the Applicant on its merits. The learned judge held that there was no

independent or individual assessment as to how her coeliac condition would affect the Applicant or whether she could integrate into

the Defence Force without adverse consequences. The Board adhered rigidly to either in the belief that no flexibility was available or

else that direct compliance was essential.

The Minister’s notice of appeal effectively replicates the original Statement of Opposition. In short, the Minister contends that he and

the Board had acted at all times in accordance with the principles of natural and constitutional justice. Certain of the grounds of

appeal suggest that the function of the Medical Board was merely to make a medical assessment, that it was not a decision-making

body and that its medical examination was not amenable or subject to the principles of natural justice. However, this was new

material, it was not argued on the appeal and is, in any event, devoid of merit, as I will explain. On the second issue, the Minister

repeats the contention that the Medical Board acted at all times in accordance with DFR A.12, that it considered the Applicant’s

circumstances that it did not adopt a fixed or inflexible policy and that the classification decision was not irrational.

Conclusion

In order to judge the fairness of the procedures of the Medical Board, it is necessary to identify the nature of the decision that Board

had to make. Admittedly, the ultimate adverse decision affecting the Applicant was the discharge from the Defence Force pursuant to

Article 58(a) of DFR A.10. That decision is made by the officer in charge of records. However, the text of paragraph (a) shows that it

is the fact of a recruit not having been “finally approved” which requires that he or she be discharged “with all convenient speed.”

The effective decision, therefore, is the one which means that he cannot be “finally approved.” The reason for this was the

classification of the Applicant to Constitution, grade 3. Subject to the procedural point mentioned above, namely that there should

have been a prior decision by a Medical Officer, that function is assigned to a Medical Board, to be convened by the appropriate

Command Medical Officer. Thus the decision which more or less automatically triggered the discharge of the Applicant was that of the

Medical Board classifying her at Constitution grade 3.

Since the Medical Board was charged with the responsibility of making a decision capable of affecting adversely the position of the

Applicant, it should undoubtedly perform its functions fairly. I would reject the suggestion advanced in the Notice of Appeal that the

Board was merely charged with making a medical assessment and was not a decision-making body. It would be absurd, however, to

suggest that the routine decisions of such bodies should be surrounded by an elaborate panoply of hearings, formal notices and

independent representation. Obviously, the Medical Board is not, in any sense, a disciplinary body.

In the vast majority of cases, there will be no problem. It is obvious that recruits will know that the purpose of the medical

classification is to enable them to pass out. They will also be aware of their own medical state and fitness. A recruit will be perfectly

well aware that he is suffering from some condition, such as inadequate sight or hearing, which he should know perfectly well will

disqualify him. The courts should be slow to burden ordinary administrative procedures, such as medical examinations, with complex

procedures. Fairness is a simple and universally recognised notion. Persons likely to be affected by decisions should be aware and, if

not, should be made aware of their possible adverse implications.

There could, however, be features of particular situation which would require the relevant authorities to take especial care to treat

the subject of an examination fairly. For example, the subject should not be kept in ignorance of a particular medical condition, of

which the authorities have more knowledge than he or she has.

In the present case, it is necessary to see whether there were special circumstances which should have alerted the authorities, and

Commandant Murphy, in particular, to take particular action in relation to the Applicant. The Applicant was only diagnosed as a

coeliac, after her enlistment. She had passed her enlistment medical without difficulty. Her condition was diagnosed in the months

from July to October 1999. For part, at least, of that time she was under army medical care. This is, of course, as it should be.

Commandant Murphy was, in one sense, acting as the Applicant’s physician and it is not suggested that she treated her other than in

a caring and responsible way. It was to Commandant Murphy that the Registrar at Cork University Hospital communicated the coeliac

diagnosis. Commandant Murphy was the conduit for this very important medical information. In addition, however, she was privy to

the terms of DMC 4. Finally, she presided the Medical Board, which was charged with the task of classifying the Applicant medically.

It does not appear to me that there was anything in the slightest improper or even inappropriate about any of the foregoing. The

circumstances did, however, call upon Commandant Murphy to communicate in simple terms to the Applicant the implications of her

condition for the purposes of the examination by the Medical Board. What Commandant Murphy, according to her own affidavit, told

the Applicant was that “there could be a problem with her career in the Navy because she would have to be in the highest grade to

pass out of recruit training into full time service, and I was afraid that a diagnosis of Coeliac Disease could prevent final approval.”

Commandant Murphy has also sworn that she repeatedly told the Applicant that, from her health point of view, the fact that she was

now on a gluten-free diet was good, “it was not good for her career because she might not be finally approved, i.e., she might not

be able to continue in the service.”

It seems to me that these statements represent clear and specific warnings to the Applicant sufficient to put her on notice that her

coeliac condition could prevent her being able to continue in the Defence Force. In an affidavit in reply, the Applicant says that she

remembers Commandant Murphy saying that “she was optimistic about my health but pessimistic about my career.” She says that

she had no idea that this meant she would not “pass out.” She did not “take too much notice as [she] assumed that it would only

affect my promotional prospects in the Navy.” The learned High Court judge found that “at no time prior to or throughout the

medical examination……was the Applicant informed of the most serious outcome which could result from such an examination.” He

went on to say that “she was never alive to the real reason for holding such an examination.” With respect to the learned judge, he

appears to have overlooked the following statement in the Applicant’s grounding affidavit: “At the conclusion of my training and in

order to pass out and be appointed as a permanent member of the Defence Forces I was compelled to undergo an examination by

the Medical Board.” She also swore that the Medical Board was “required pursuant to Defence Force Regulations to determine my

medical classification….” She then proceeded to deal in detail with the implications DMC 4. Admittedly, it is not clear whether she was

aware of DMC 4 in advance of her medical assessment and I will not assume that she was.

These are judicial review proceedings. The evidence is given on affidavit. The full resolution of conflicts of fact may require the cross-

examination of deponents. The burden of proof is on the Applicant. No attempt was made to cross-examine Commandant Murphy. Her

evidence cannot simply be ignored. It is moreover supported by the clinical note of 15th September. The Applicant has acknowledged

that she was told that her coeliac condition might be bad for career. It would be unreasonable, in my view, to impose a greater

burden on the Army authorities than to make recruits aware in simple terms of the nature and implications of the medical examination.

If Commandant Murphy gave the Applicant the warnings which she has claimed to have given, she sufficiently discharged that burden.

In my view, the Applicant has not discharged the burden upon her of showing that she was denied a fair hearing or fair procedures.

I then turn to the second point decided by the learned High Court judge. He concluded from the affidavits of Lt. Col. Monaghan and

Colonel Collins that, once Coeliac’s Disease was identified, the case was determined.

It seems to me that it is necessary to examine both the terms of DMC 4 and the role of Medical Boards in interpreting and applying

such instructions. Article 66(1) of DFR A.12 provides that classification “shall be carried out in accordance with instructions which

shall be issued by the Director, Medical Corps.” Under DFR A.12, as a whole, Medical Officers and, on appeal, Medical Boards perform

this function. The fact that this is, in its entirety, a medical process, is confirmed by the provision, in Article 66(2), that the “decision

of a Medical Board is final.”

I would, accordingly, start from the proposition that the court is being asked to pronounce upon medical judgments, made by experts.

In addition, these judgments are made in a military context by military officers with medical qualifications. It is in that context that

the interpretation of DMC 4 should be considered.

It is clear that, if taken literally, there is conflict between paragraphs 14 and 2 of DMC 4. The former is more than explicit in providing

that sufferers from Coeliac’s Disease “should NOT be graded higher than Constitution 3.” Paragraph 2, however, states that the

statements in DMC 4 “are NOT always to bind the Medical Officer or Medical Board…….” It goes on to say that “each case must be

decided on its merits.”

In my view, it is perfectly possible for a Medical Board to evaluate the individual weight to be attached to each of the statements,

while reconciling the objectives pursued with the general admonitions contained in paragraph 2. Some of the statements in DMC 4 are

expressed in terms which connote broad discretion, some are relatively more prescriptive and some, such as paragraph 14, express

something amounting to a command.

Sufferers from mild acne “should be graded Constitution 1”, while those with severe pustular acne “should be graded Constitution 3.”

AIDS sufferers, however, “will be graded Constitution T or X.” Paragraphs use terms such as: “should be…depending on …;” “…would

normally …;” “should be …having regard to…”; “… may be graded…” But drug abuse is “deemed to be incompatible with military

service.”

DMC 4 covers a range of medical and related conditions reflective of all foreseeable medical conditions and behaviour with medical

implications.

In my view, it is the designated experts and they alone that should perform the function of assessing Constitution grades for military

personnel in accordance with the criteria provided within the ordained regulatory scheme. It is, of course, the case that decisions of

Medical Boards are amenable to Judicial Review. However, I venture to suggest that the hurdle of irrationality will be high one.

McKechnie J found for the Applicant on the ground that the Medical Board rigidly adhered to DMC 4 and did not consider the individual

merits of the Applicant. This conclusion was reached under the first heading of the ground for the Judicial Review, namely the

unreasonableness or irrationality of the decision. Patently, however, they are not the same thing. The decision of the Medical Board

would be irrational if no reasonable body of persons performing the function of medical assessment which was performed in this case

could have reached the decision they did. Put in that way, the Applicant does not, in my view, come anywhere near discharging the

required onus. The reasoning of Lt. Colonel Monaghan, which I have quoted, seems perfectly reasonable and even plausible. Dr Cronin,

of course, disagrees. He believes that it is perfectly possible for military personnel to serve, while following a gluten-free diet. But

there is nothing irrational about disagreeing with him, particularly by assessing the implications of the coeliac condition for military

service.

In reality, the Applicant has made a different argument, namely that the Medical Board misinterpreted DMC 4. It applied paragraph 14

rigidly and ignored paragraph 2. I have already said that I am satisfied that it is the Medical Board alone that should be allowed to

perform the task of allocating appropriate weight to paragraphs 2 and 14. Clearly, paragraph 14 weighed heavily. But, in my view, the

Medical Board was entitled to give it great weight, having regard to the imperative terms used. It has to be acknowledged that the

Minister has not been a model of clarity in the positions he has taken on this point. In the Statement of Opposition, he has claimed

not to have acted inflexibly and to have considered the individual position of the Applicant. The affidavits sworn in support do not,

however, support this position. Commandant Murphy, who presided at the Medical Board, swore that “in accordance with DMC’s

instructions which advise placing a person with Coeliac Disease in Constitution Grade 3, we gave her the category 80.31.111.”

Colonel Collins, whose appeal decision may not be strictly relevant, seems to adopt a similar position. The Medical Board was required

to classify the Applicant in accordance with the instructions and for the purpose of deciding whether she should be finally approved.

For this purpose, the Board was entitled to consider the proper classification of the Applicant for the purposes of passing out to

permanent military service and in the light of her coeliac condition.

In my view, the decision of the Medical Board and, hence, the decision to discharge the Applicant was not irrational. I would allow the

appeal and dismiss the application for certiorari.