Supreme Court dismisses appeal holding Health Board has power to discontinue maternity services location under Health Act 1970.

THE SUPREME COURT

[Appeal No: 450/2004]

Denham J.

Hardiman J.

O'Donnell J.

Between/

Shauna Tierney, Maura Sherlock,

Brenda McAnespie and Sharon O'Neill

Applicants/Appellants

and

North Eastern Health Board

Respondent

Judgment delivered the 9th day of July, 2010 by Denham J.

1. The issue on this appeal is whether the North Eastern Health Board had the power to discontinue maternity services at Monaghan

General Hospital. It is a question of law, being essentially the construction of s.38 of the Health Act, 1970, hereinafter referred to as

"the Act of 1970". Before addressing the issue of the construction of the statute, I shall refer to the general background of the case.

2. Shauna Tierney, Maura Sherlock, Brenda McAnespie and Sharon O'Neill, the applicants/appellants, who are referred to as "the

appellants" in this judgment, have brought an appeal against the order of the High Court of the 29th July, 2004, and the High Court

judgment dated the 30th July, 2004. The North Eastern Health Board, the respondent, is referred to as "the respondent" in this

judgment.

3. Initially the appellants brought an application by way of judicial review, on a number of grounds, seeking relief by way of

declarations and/or certiorari, submitting that the respondent, in discontinuing the provision of maternity services at Monaghan

General Hospital, had acted ultra vires.

The High Court

4. The High Court (Ó Caoimh J.) refused the application. Ó Caoimh J. concluded:-

"With regard to the provision of maternity services, it is clear that the provision in question of such services arise in the

context of the general obligations on Health Boards pursuant to the Act of 1970. Furthermore, in the context of s. 62 of

the Act of 1970 certain obligations fall on Health Boards to make available without charge medical, surgical and mid-wife

services for attendance to the health, in respect of motherhood of women who are persons with full eligibility or persons

with limited eligibility. While the obligations in question are clear in this regard, it is to be noted that nowhere in the

section is there any indication as to where the provision in question is to take place but is clear that the obligation is to

provide such a service. I believe that this obligation must be construed on a rational basis enabling a Health Board to

choose where the provision in question will take place as long as the decision that is taken in this regard is not such as

to preclude the provision of the service for women residing in any part of its catchment area.

In conclusion I believe that the applicants have not satisfied this Court that the provision of maternity services at Cavan

General Hospital is such as to breach any requirement of the Health Act of 1970 and furthermore I am satisfied that the

decision in question taken in this case was not one precluded by the terms of s. 38 of the Act of 1970.

Were I to have held that there was an obligation to provide the services in question at Monaghan General Hospital I do

not believe that that obligation could be set aside by merely deeming that hospital when taken together with Cavan

General Hospital to constitute one hospital."

Notice of Appeal

5. The appellants have appealed the order and judgment of the High Court. The notice of appeal set out 16 grounds of appeal.

However, as counsel for the appellants stated, the Court was asked a question of statutory construction. The essence of the

appellants' case was that what the Health Board was providing could not be withdrawn. This proposition was made on the basis of

s.38 of the Health Act, 1970. Thus the appeal was about the construction of section 38.

Submissions

6. In written submissions on behalf of the appellants it was submitted that the learned trial judge erred in identifying the issue in the

case. The learned trial judge had stated that the essential issue was whether the respondent was precluded from discontinuing the

services in question at Monaghan General Hospital, on either a temporary or other basis. On behalf of the appellants it was submitted

that the learned trial judge erred – that the question was not whether the respondent was precluded from discontinuing the services

but rather whether it was empowered by statute to suspend or discontinue the services.

Reference was also made to the finding of the learned High Court judge:

"I believe that the [appellants] have not satisfied this Court that the provision of maternity services at Cavan General

Hospital is such as to breach any requirement of the Health Act of 1970 and furthermore I am satisfied that the decision

in question taken in this case was not one precluded by the terms of s. 38 of the Act of 1970."

It was submitted that this issue had nothing to do with the provision of services at Cavan General Hospital but rather the

discontinuance of the provision of the services in question at Monaghan General Hospital. The learned trial judge having rejected the

respondent's case that between Cavan and Monaghan there was but one hospital at two sites, it was submitted that whether similar

or alternative maternity services were being provided in Cavan General Hospital was not relevant to the appellants' case and should

have formed no part of the learned trial judge's deliberation.

The learned trial judge concluded that:-

"And furthermore I am satisfied that the decision in question taken in this case was not one precluded by the terms of s.

38 of the Act of 1970."

It was submitted that the issues raised had nothing to do with whether there was a breach of the provisions of the Act of 1970 but

rather whether the steps taken by the respondent in a discontinuance of the maternity services were duly authorised by the statute.

It was submitted that the relevant provision is s.38 of the Act of 1970. The respondent had relied on s.38(3) of the Act of 1970 and

s.3(1)(a) of the Health (Amendment)(No.3) Act, 1996 to commence suspension of the maternity services at Monaghan General

Hospital. It was submitted that these statutory sections do not give power to the respondent to discontinue the services at the

hospital. Indeed, it was submitted that not only is there no power given to the respondent to discontinue hospital services, but that

there is a positive obligation to provide such services on a continuous basis. It was submitted that the respondent is bound to provide

inpatient and outpatient maternity services under s.62 of the Act of 1970. It was argued that this obligation cannot be fulfilled

without maintaining hospitals.

Reliance was placed on McMeel v. Minister for Health and the North Eastern Health Board [1985] I.L.R.M. 616. It was submitted that

notwithstanding that the ratio of the McMeel case relates to the interpretation of s.38(2), that the same principles of law apply in

this case. It was submitted that (i) the dicta in McMeel enforce the legislative intent that the respondent be bound for better or

worse to provide and maintain hospital services at the hospital; (ii) the positive injunctions in the statute were deliberately provided

by the legislature in framing the Act of 1970; (iii) while the Health Act, 1947 expressly provided for the discontinuance of any

department in a hospital, there is no such provision in the current statute after the repeal of s.11 of the Act of 1947 by s.1 of the

Act of 1970; and (iv) any administrative decision of a statutory authority in order to be valid must fall within the substantive power

conferred by the statute, and that there was no such statutory power for the respondent in this case.

In oral submissions Mr. Michael Counihan S.C., counsel for the appellants, stated that this Court was being asked to construe the Act

of 1970. He argued that under the legislation neither the respondent nor the Minister for Health, hereinafter "the Minister", could

suspend services at a hospital. That, as a consequence of s.38 of the Act of 1970, once a hospital was providing services those

services could not be withdrawn.

Counsel submitted that a hospital must be a single premises i.e. one site, although there may be a number of buildings on the site. He

considered the issue of the term "hospital", but could point to no legal definition. However, he repeated the argument that no one

could shut a department in a hospital. He acknowledged that such an analysis indicated a lacuna in the statute but said that that

was the position. Once a service was provided by a hospital, it could not be discontinued. Thus if a premises is historically used to

provide midwifery services, he submitted, no one could take those services away as long as the hospital existed. If the statute fails,

he submitted, to provide a route, that is no fault of the appellants. Counsel referred to Keane v. An Bord Pleanála and the

Commissioners of Irish Lights [1997] 1 I.R. 184 and to the approach taken to the construction of the statutes by Hamilton C.J. and

submitted that this Court should take a similar approach. Counsel sought a declaration that the respondent had acted ultra vires.

7. In written submissions on behalf of the respondent it was stated that by a decision in 1993 the respondent approved a plan

whereby the two hospitals in Cavan and Monaghan were to be known as Cavan/Monaghan General Hospitals, i.e. one hospital with

two sites. A full maternity service was provided from Cavan and an antenatal service in Monaghan. It was submitted that the

appellants' case falls in limine as there was no discontinuance of the service in Cavan/Monaghan General Hospital.

In relation to the decision of the learned trial judge that the respondent could not set aside its obligation by deeming that the two

hospitals constitute one hospital, the respondent submitted that the learned trial judge fell into error, that the respondent could

decide that there be one hospital at two sites. The decision to have one hospital at two sites was made in 1993 and the decision to

suspend maternity services in Monaghan was taken in 2001.

It was submitted that even if there was to be regard to Monaghan alone, and not to a single hospital on two sites, the service has

not been discontinued - merely that part of the services was temporarily suspended pending a review which resulted in the

establishment of a midwife-led service in 2005. It was submitted that s.38(3) and s.38(4) of the Act of 1970 have no application to

this case.

In conclusion, in the written submissions on behalf of the respondent, it was submitted:-

(a) The respondent has not discontinued the service. Part of that service was suspended and full maternity service is

provided from another site of the hospital.

(b) In any event, the service at Monaghan was merely temporarily suspended for a short time after which part was

restored. It has not been discontinued for the purposes of s. 38 of the Act of 1970.

(c) Critically, s.38 only applies to the discontinuance of the provision and maintenance of premises, as distinct, for

example, from a hospital department. There is no question that the provision or maintenance of the premises in question is

to be discontinued.

(d) Without prejudice to the above, if this Court were to hold that there had been a breach of statutory duty, no order of

mandamus should issue where the respondent does not presently and immediately have the personnel or other resources

to ensure the provision of a safe service from Monaghan.

In oral submissions Counsel for the respondent, Mr. Gerard Hogan S.C., addressed the net issue of the construction of the Act of

1970 on the basis of an assumption. Counsel stated that he would assume, in favour of the appellants, that maternity services in

Monaghan General Hospital have been discontinued and submitted that even if that were true it would not avail the appellants. He

submitted that there is nothing in s.38 which precludes that course of action. Counsel submitted that: (a) there is nothing in s.38 of

the Act of 1970 which relates to the discontinuance of services by the respondent; (b) ss.38(3) and (4) are restrictions relating to

the closure of a hospital; and (c) it is a fallacy to extrapolate from ss.38(3) and (4) that there are restrictions on a Health Board

discontinuing a service.

Counsel submitted that by s.5 of the Act of 1970 a health board is deemed to be a corporate body. As a body corporate with power

to dispose of land it may do what it deems fit with that land, with the exception that by ss.38(3) and (4) of the Act of 1970 the

Oireachtas has restricted this power. He submitted that no inference may be drawn from those subsections that a health board

cannot close down a department of a hospital. Counsel pointed out that if the appellants' analysis of s.38 was correct then a hospital

could not close a service which it had historically provided in 1970.

As to the issue of vires, counsel argued that the power to close a department of a hospital was an implied power. Counsel submitted

that this was an implied power arising from ss.5, 38, 51, 52 and 62 of the Act of 1970.

Counsel submitted that the McMeel case was not relevant. McMeel decided that the Minister did not have the power under s.38(2) to

direct the discontinuance of services. If the Health Board had decided to discontinue services in McMeel the issue would not have

arisen. Counsel further addressed the Court on the issue of the reliefs sought and what would be appropriate, with reference to Brady

v. Cavan County Council [1999] 4 I.R. 99.

Legislation

8. The legislation relevant to this case is as follows. Section 38(1) of the Act of 1970 provides:-

"(1)A health board may, with the consent of the Minister, provide and maintain any hospital, sanatorium, home,

laboratory, clinic, health centre or similar premises required for the provision of services under the Health Acts, 1947 to

1970.

(2) The Minister may give to a health board such direction as he thinks fit in relation to the provision or maintenance of

any premises provided and maintained under subsection (1) and in relation to the arrangements for providing services

therein, and the health board shall comply with any such direction.

(3) A health board may and, if directed by the Minister, shall discontinue the provision and maintenance of any premises

provided and maintained by it under subsection (1).

(4) A health board shall not exercise its powers under subsection (3) in relation to the discontinuance of the provision

and maintenance of a hospital, sanatorium or home save with the consent of the Minister.

(5) The Minister shall not give a direction under subsection (3) in relation to the discontinuance of the provision and

maintenance of a hospital, sanatorium or home save after having caused a local inquiry to be held into the desirability of

the discontinuance."

[Emphasis added]

Section 5 provides:-

"(1) The following provisions shall have effect in relation to a health board established under this Act:

(a) the board shall be a body corporate with perpetual succession;

(b) the board may sue and be sued in its corporate name and may hold and dispose of land; …"

Section 52(1) of the Act of 1970 provides:-

"A health board shall make available in-patient services for persons with full eligibility and persons with limited eligibility."

The Act of 1970 refers specifically to services for mothers and children. Section 62(1) provides:-

"A health board shall make available without charge medical, surgical and midwifery services for attendance to the

health, in respect of motherhood, of women who are persons with full eligibility or persons with limited eligibility."

Section 3(1)(a) of the Health (Amendment)(No.3) Act, 1996 refers to reserved functions of a health board. It provides:-

"(1) A health board shall perform the following functions:

a function of a health board specified in a section mentioned in column (3) of the First Schedule, of the

Act mentioned in column (2) of that Schedule opposite the mention aforesaid"

Section 38(3) is listed in the First Schedule in the third column opposite the Act of 1970 mentioned in the second column.

In his report of January 2001 to the Board, Paul Robinson, Chief Executive Officer of the Health Board, stated:-

"The only solution to the difficulty now facing the Board is to temporarily suspend obstetric services at Dundalk and

Monaghan. The discontinuance, suspension or transfer of services is a reserved function of the Board under section 3(1)

(a) of the Health (Amendment)(No.3) Act 1996."

Case Law

9. Several cases were opened to the Court on several issues. The appellants relied on McMeel v. Minister for Health and the North

Eastern Health Board [1985] I.L.R.M. 616, submitting that while the ratio of McMeel relates to the interpretation of s.38(2) of the Act

of 1970, the same principles of law apply to this case. It was submitted that McMeel enforced a legislative intent that a health board

be bound for better or worse to provide and maintain hospital services in a given hospital. It was submitted that while this may be

inconvenient to the respondent, the legislative provisions are compelling. Counsel for the respondent disagreed, as stated earlier in

this judgment.

The Court was referred to Keane v. An Bord Pleanála and the Commissioners of Irish Lights [1997] 1 I.R. 184. Reference was made

also to FN v. Minister for Education [1995] 1 I.R. 409. In relation to the relief issue, the Court was referred to Brady v. Cavan County

Council [1999] 4 I.R. 99.

Decision

10. The issue raised for decision is the construction of s.38 of the Act of 1970. It is a discrete question of law.

11. It is not for a court of law to make social policy as to where maternity services should be provided. There is no issue before the

Court as to whether it is better to have maternity services in a local area or more centralised. Those decisions are made elsewhere.

12. The issue before this Court is whether the respondent had the power in law to discontinue the maternity services in Monaghan

General Hospital. I will assume, as did counsel for the respondent, for the purpose of the legal argument, that maternity services in

Monaghan General Hospital have been discontinued. There is no issue, thus, in this appeal, as to whether there are one or two

hospitals at Cavan and Monaghan.

Statutory Construction

13. Statutes should be construed according to the intent expressed in the legislation. The words of a statute declare best the intent

of an Act. The language of the relevant sections of the Act of 1970 is clear. Consequently those words should be given their ordinary

meaning. The Court is bound to give effect to the clear meaning of the statute.

14. I shall consider and construe the relevant statutory provisions.

(a) Section 5 of the Act of 1970 provides that the respondent is a body corporate with perpetual succession. Thus the

respondent may sue and be sued in its corporate name and may hold and dispose of land.

(b) A fundamental duty of the respondent, as stated in s.52, is to provide inpatient services for persons of full eligibility

and persons with limited eligibility. Section 52 clearly provides that a health board shall make available inpatient services

for persons with full eligibility and with limited eligibility. The section refers to and is about services.

(c) This case relates to maternity services. Section 62 expressly states that a health board, such as the respondent,

shall make available without charge medical, surgical and midwifery services for the health, in respect of motherhood, of

women who are persons with full eligibility or persons with limited eligibility.

(d) The above sections refer to services, whether they be the inpatient services of s.52(1) of the Act of 1970 or the

medical, surgical and midwifery services of s.62(1) of the Act of 1970. On the other hand s.38 is about premises. Section

38(1) enables a health board, with the consent of the Minister, provide and maintain any hospital, etc, or similar premises

required for the provision of services. By s.38(2) the Minister may give a health board a direction relating to the provision

or maintenance of any premises provided and maintained under s.38(1) and in relation to the arrangement for the

provision of services, and the health board shall comply with such direction. Under s.38(3) a health board may and, if

directed by the Minister, shall discontinue the provision and maintenance of any premises provided and maintained under

subsection (1). However, a health board shall not exercise its powers under s.38(3) without the consent of the Minister:

see s.38(4). Under s.38(5) a Minister shall not give a direction under subs.(3) in relation to the discontinuance and

maintenance of any premises unless a local inquiry has been held into the desirability of the discontinuance. Hence, s.38

is about premises, including a hospital. It sets out the powers of the health board and those of the Minister in relation to

the provision, maintenance and discontinuance of such premises.

15. I would distinguish McMeel v. Minister for Health and the North Eastern Health Board [1985] I.L.R.M. 616. That case related to

ministerial powers under section 38(2) of the Act of 1970. In essence it found that the Minister is not authorised to direct the health

board to discontinue a service. If the health board had decided to discontinue the service the issue would not have arisen. The

appellants have read something into the McMeel case which was not there.

Conclusion

16. The appellants have relied on a statutory provision to advance their case for the provision of maternity services, and to prevent

the discontinuance of such services, in a particular hospital. However, the section upon which the appeal is grounded relates to the

provision of premises, and to the discontinuance of premises, and not to the provision of services. Thus the appeal must fail.

The Act of 1970 gives a general duty to the respondent to provide services, such as maternity services. This obligation is stated in

sections of the Act of 1970 including s.62. However, the statute does not mandate where the services should be provided. The

respondent may meet its obligation by providing the services anywhere in its region. The terms of s.38(3) and s.38(4) refer to the

provision and maintenance, and to the discontinuance of the provision and maintenance, of premises, including a hospital, and not to

services.

There is an express scheme provided for the discontinuance of a hospital premises. Section 38(3) refers to "any premises" referred to

in s.38(1). And section 38(4) expressly provides that a health board shall not exercise its powers under s.38(3) in relation to the

discontinuance of a hospital, sanatorium or home, save with the consent of the Minister. In essence these subsections refer to

premises – and not to the provision of services.

The decisions as to the provision of services, whether to open, modify or close a department of a hospital, are made under the implied

powers which the respondent has to provide the services mandated by the Act of 1970. Consequently, I am satisfied that the

respondent has power to close a department in a hospital and that it did not act ultra vires in making the decision in issue.

I would dismiss the appeal. In addition I would amend the title of the case so that the respondent is named as the Health Service

Executive.