Supreme Court dismisses appeal on objective bias grounds where witness and chair share employer but no actual bias found.

THE SUPREME COURT

RECORD NO. 450/2009

Denham C.J.

Murray J.

Hardiman J.

Fennelly J.

Macken J.

BETWEEN:

ANN O’CEALLAIGH

Applicant/Appellant

-and-

AN BORD ALTRANAIS AND THE FITNESS TO PRACTISE COMMITTEE OF AN BORD ALTRANAIS

Respondents

-and-

THE CHIEF EXECUTIVE OFFICER OF AN BORD ALTRANAIS

Notice Party/Respondent

JUDGMENT of Mr. Justice Fennelly delivered the 21st day of December 2011.

1. The appellant is a registered nurse and midwife; she is the subject of an allegation of professional misconduct before the Fitness to

Practice Committee (hereinafter “the Committee”) of An Bord Altranais, the second-named respondent (hereinafter “the Board”). She

alleges objective bias against the chairperson of the Committee. This allegation is based on the fact that the chairperson and the

principal expert witness called as a witness for the Board at the inquiry are both employed in the Rotunda Hospital, where the

chairperson is the General Manager and thus the superior of the witness.

2. The appellant’s application for judicial review on this ground was unsuccessful before the High Court (Hedigan J). She now appeals

to this Court.

3. The appellant describes herself as a domiciliary midwife. She qualified as a nurse in London in 1971 and as a domiciliary midwife in

1972. She has been registered with An Bord Altranais since 1983.

4. The first named respondent is a statutory body. It was established by section 6 of the Nurses Act 1985 (‘the 1985 Act’). As that

section provides, the general concern of the Board is “to promote high standards of professional education and training and

professional conduct among nurses.” It has the sole responsibility, therefore, for the maintenance of professional standards in nursing

and midwifery.

5. The function of the Board in respect of these matters is performed, in the first instance by the Fitness to Practice Committee,

established by virtue of section 13(2) of the Act. Part V of the 1985 Act deals with the “Fitness to Practice” of registered nurses.

Section 38 of the 1985 Act permits the Board or any person to apply to the Committee for an inquiry into the fitness of a nurse to

practise nursing on the grounds of alleged professional misconduct, or alleged unfitness to engage in such practice by reason of

physical or mental disability. The Committee, if satisfied that the application, in effect the complaint, discloses that there is a prima

facie case, holds an inquiry and reports the result of the inquiry to the Board. It is the function of the Chief Executive Officer of the

Board to present the evidence to the Committee. On the conclusion of its inquiry the Committee reports to the Board.

6. The inquiry commenced by the Committee which is the subject of the present proceedings arose out of the care provided by the

appellant at the home birth of an infant to a woman in her first pregnancy and, in particular, related to her care in the course of

labour from 18th April to 20th April 2007. Although the baby, subsequently died, after the mother had been transferred to the Coombe

Hospital, the Board made it clear at the outset of the hearing before the Committee and repeated at the hearing of the appeal in this

Court that it does not allege that the appellant was responsible for the death of the infant.

7. The Coombe Hospital communicated to the Board that it had concerns regarding the management of the labour of the mother. The

Board decided to apply to the Committee to hold an inquiry. The Committee considered the application and determined that a prima

facie case was made out. It decided to hold an inquiry.

8. Section 38(4) of the Act provides:

“When it is proposed to hold an inquiry under subsection (3) of this section the person who is the subject of the inquiry shall be given

notice in writing by the Chief Executive Officer sent by pre-paid post to the address of that person as stated in the register of the

nature of the evidence proposed to be considered at the inquiry and that person and any person representing him shall be given the

opportunity of being present at the hearing.”

9. Thus, it fell to the Chief Executive Officer of the Board to formulate the Notice of Inquiry and to give that notice to the appellant.

That notice was given to the appellant on 9th September 2008. The Chief Executive Officer necessarily had to engage an expert to

consider the appellant’s management of the patient and to give evidence before the Committee. The functions of the Chief Executive

Officer were in fact performed by Ms Ursula Byrne, who at the time was Acting Deputy Chief Executive Officer.

10. Ms Byrne has explained on affidavit that it was important to engage an expert who had experience of midwifery management of a

home birth. She says that the number of midwives in a position to give such expert evidence is very limited in Ireland and that it is

not the practice to seek to call experts from outside Ireland, who would not necessarily be familiar with Irish midwifery legislation,

guidelines and practice. Ms Byrne chose, as an appropriate expert witness, Ms Fiona Hanrahan, who had previously given evidence to

enquiries in relation to the management of home births. Ms Hanrahan was, at the time, working at the Rotunda Hospital as a midwife

and as Coordinator for Community Services.

11. It also fell to Ms Byrne to decide on the composition of the Committee which was to hold the inquiry. Section 13(2) of the 1985

Act provides that there shall be a Committee of the Board to perform the functions mentioned in Part V. The Board has, from time to

time adopted rules pursuant to section 13(8), a provision which enables the Board to regulate the procedures of the Committee. In

particular, the version in force at the time of the inquiry and adopted on 29th October 2008 provided, among many other things, as

follows:

• the entire Committee comprises a minimum of fifteen members, drawn from the Board’s membership;

• The Board elects the Chairman of the Committee;

• The quorum for Inquiries by the Committee is a minimum of five;

• The Chief Executive Officer presents the case before each Committee of Inquiry;

• The Chief Executive Officer makes arrangements for the holding of each Inquiry;

• Insofar as possible at least one member of a Committee of Inquiry must be registered in the division of the Register for

the area of nursing/midwifery being investigated;

• At the opening of the Inquiry the Chairman and each member of the Committee is required to introduce him or her self

by name and professional area of representation.

12. Ms Byrne had to ensure that there were at least five members of the Committee available for the hearing of what was expected

to be a relatively lengthy inquiry and to ensure that, so far as possible, one member would be a practising midwife. As it happened,

the Chairperson of the Committee, Ms Pauline Treanor, was General Manager of the Rotunda Hospital. Ms Byrne says that she did not

consider any possible professional involvement between members of the Committee and Ms Hanrahan. She says that the midwife

members of the Fitness to Practice Committee almost invariably have some connection with one or other of the major maternity

hospitals in the country and that it is difficult to rule out any potential familiarity between the Inquiry Committee members and the

experts giving evidence.

13. The hearing of the inquiry was originally scheduled for the 9th, 10th and 11th of October 2008. There were two adjournments,

each granted at the request of the appellant by reason of changes of legal representation. The adjourned hearing commenced on 5th

May 2009. At the outset, each of the Committee members introduced themselves as required and, in each case, stated whether or

not she was a nurse. Ms Treanor said that she was an elected representative of the Board and chairperson of the Committee. She did

not say where she worked.

14. Ms Hanrahan commenced her evidence on 7th May. She said that she had been employed at the Rotunda Hospital since May

2002. She had recently taken up the post of Director of Midwifery. The appellant says that neither she nor her solicitor or counsel

were aware of where the Chairperson, Ms Treanor, worked. Her solicitor was aware, however, that she and another member of the

Committee were midwives. Her solicitor asked the appellant, during the hearing, if she knew where either of these Committee members

worked. She said that she thought the other member worked at the National Maternity Hospital and that, perhaps, Ms Treanor worked

at the Rotunda Hospital but she was not sure.

15. A phone call was made to the Rotunda Hospital, which disclosed that Ms Treanor was the General Manager there. Counsel,

following a brief adjournment, informed the Committee that there was a matter "in relation to the composition of the Committee."

However, no application was made to the Committee on that day. Following further consideration, on 8th May, counsel asked the

Committee to discharge itself on the ground that there was objective bias by reason of the fact that its chairperson was the General

Manager of the Rotunda Hospital and that the expert witness, Ms Fiona Hanrahan had been employed at that hospital since 2002.

Counsel made it clear that no allegation of actual bias was being made.

16. On the invitation of the Committee, written submissions were made with extensive reference to authority. Consideration of the

matter was adjourned to 11th June 2009. It was submitted on behalf of the appellant that a reasonable person, knowing the

respective roles of Ms Treanor and Ms Hanrahan, would have a reasonable apprehension that Ms Treanor would not be able to find in

favour of opinions that were in conflict with the opinions of Ms Hanrahan.

17. The Committee on that date also heard from its legal assessor. He referred to the position of Ms Hanrahan, of which evidence had

already been given. He also said that Ms Hanrahan did not report to Ms Treanor at the Rotunda Hospital and there was no line

management connection between them, that they do not participate in regular committee meetings at the Rotunda Hospital. Ms

Treanor had never discussed the case with Ms Hanrahan and did not know, until the notice of inquiry was on the desk of the

Committee that Ms Hanrahan would definitely be giving expert evidence. Ms Treanor was appointed as General Manager of the

Hospital in December 2008; she had been Director of Nursing and Midwifery from mid-2001 to that date.

18. The Committee adjourned to consider the application. Ms Treanor excluded herself from participation; the remaining members of

the Committee considered the matter. They ruled that there was no objective bias arising from the participation of Ms Treanor. The

enquiry was due to recommence on 4th September 2009.

19. On 6th July 2009, on the application of the appellant, the High Court (Peart J) granted leave to apply for judicial review by way of

certiorari of the decision of the Committee of 11 June 2009, namely the ruling that there was no objective bias, together with

consequential orders of prohibition. The Chief Executive Officer of the Board was joined as a Notice Party.

20. The essence of the ground advanced is objective bias. The Statement Grounding the Application for Judicial Review expresses the

matter as follows:

"The Applicant’s legal team only became aware of the connection between Ms Treanor and Ms Hanrahan after Ms Hanrahan

commenced giving her evidence. The Applicant and the applicant’s expert witnesses will give evidence to the Committee that is in

conflict with the views and opinions expressed by Ms Hanrahan. A reasonable person would have a reasonable apprehension that Ms

Treanor would not be able to find in favour of the opinions and views that are directly in conflict with the opinions and views

expressed by the Assistant Director of midwifery at the hospital where she is General Manager. Ms Treanor is objectively biased and

should not be involved in the Enquiry into the Applicant’s fitness to practice.”

21. Other grounds were advanced concerning the Committee’s exclusion of Ms Treanor from its considerations, but these are no

longer being pursued.

22. Hedigan J, by his judgment delivered on 23rd October 2009, dismissed the application for judicial review. The learned judge

thought that a “judge’s objectivity could not normally be impugned on the basis of innate characteristics such as gender and age...”

or “employment history or background.” He added that “there may be additional factors ……which arise from an employment

relationship and which might validly ground a reasonable apprehension of bias.” He found support for the “requirement of an additional

element or factor in respect of the impugned relationship” in the judgment of Denham J (as she then was) in Bula Ltd. v Tara Mines

(No. 6) [2000] I.R. 412. He quoted extensively from that judgment before concluding:

“This decision of the Supreme Court makes it clear that aside from the mere fact of the relationship, there must be an additional

element to the association which has the potential to affect the adjudicator’s impartiality in the case, having regard to the nature of

the relationship and the issues to be determined in the case.”

23. Hedigan J held that “the following principles are applicable in determining the presence of objective bias:

(1) Objective bias is shown where a reasonable, well informed observer would reasonably apprehend that the plaintiff

would not receive a fair and impartial hearing because of the risk of bias on the part of the judge.

(2) A relationship between the judge and a party, or a witness to the proceedings, or another member of public involved

with a case, be it personal, social or professional, is not sufficient of itself to prove objective bias. It must be shown that

the circumstances of that relationship and its connection with the proceedings are such that it has the capacity to

influence the mind of the decision-maker.

(3) The impugned relationship between the judge and the party, witness or other relevant person, must normally display a

community of interest between them which is directly related to the subject matter of the proceedings for objective bias

to arise. This link must be cogent and rational.

(4) Where the impugned relationship concerns a witness or other person, not a party, who does not have a stake in the

outcome in the proceedings, the threshold to establish objective bias will necessarily be higher.”

24. He concluded that there was “no cogent reason for believing that, because she worked in the same hospital as Ms. Hanrahan, she

would necessarily prefer her evidence over the evidence of other expert witnesses whom Ms. O’Ceallaigh proposes to call.”

Submissions on the appeal

25. Dr Michael Forde, Senior Counsel, on behalf of the appellant submitted that the case for objective bias was made out because of

the particular relationship between Ms Treanor and Ms Hanrahan within the Rotunda Hospital.

26. He said that the stakes were very high for the appellant, involving potential complete prohibition on her practising both as a nurse

and as a midwife, and that the standard required of the Committee must be correspondingly high.

27. He alleged that there was a degree of hostility between hospital and domiciliary midwifery and that domiciliary midwives represent

a threat to highly paid consultants in hospitals. He claimed that the Board could have found an expert from elsewhere such as Cork,

Galway, Limerick or Belfast. He claimed that Ms Byrne’s explanation for the choice of Ms Hanrahan as an expert was implausible.

28. He relied on the fact that both Ms Treanor and Ms Hanrahan worked in the same hospital, had been in the midwifery section there

since 2002, that Ms Treanor was Ms Hanrahan's superior, that they participated in committee meetings and that it was not known

what was the extent of their connection. He alleged that they had collaborated together on some sensitive questions, a matter which

emerged only at a late stage from the facts of the case of Kudelska v An Bord Altranais [2009] IEHC 68, in which judgment was

delivered in 10th February 2009. It emerged from that case that both Ms Treanor and Ms Hanrahan had given evidence in an inquiry

into the nurse named in the title and that Ms Treanor had commissioned an assessment of the clinical skills of the applicant from Ms

Hanrahan.

29. Dr Forde also complained of the fact that Ms Byrne, as Acting Chief Executive Officer had chosen the members of the panel for

the inquiry.

30. Dr Forde complained particularly that the Committee had failed, prior to or at the hearing, to disclose the connection between Ms

Treanor and Ms Hanrahan. Ms Treanor did not say at the outset that she worked at the Rotunda Hospital. Dr Forde referred

extensively to Australian and New Zealand authority. He relied especially on a number of passages from the concurring judgment of

Kirby J in the decision of the High Court of Australia in Smits v Roach 80 A.L.T.R. 1309. He suggested that the failure to disclose

could, in itself, become evidence of objective bias.

31. Before referring to the submissions of the respondent, it is appropriate to remark that a number of the points made by Dr Forde

are either not supported by the evidence or are not formulated as grounds for judicial review for which leave was granted. On the

first point, there is simply no evidence of the existence, whether at the Rotunda Hospital or other maternity hospitals, of hostility to

domiciliary midwifery. On the evidence, Ms Hanrahan was chosen by reason of her expertise in the management of home births. Nor

was there any evidence that an expert witness could have been chosen from elsewhere. Furthermore, leave to apply for judicial

review was not granted on the ground that there was any impropriety in the Chief Executive Officer selecting the members of the

panel for the inquiry.

32. Mr Nicholas Butler, Senior Counsel for the Committee submitted that Ms Hanrahan was under an obligation to deal professionally

and ethically with the evidence. It is necessary, on the authorities, to establish a cogent and rational link between the professional

association between Ms Treanor and Ms Hanrahan and the apprehension that, as a result of this association Ms Treanor would not be

in a position to consider impartially the expert evidence. He referred to the judgment of Denham J in Bula v Tara (No. 6), already

cited, at page 445.

33. Mr Butler made the following points in response to the suggestion that the hypothetical well-informed observer would reasonably

apprehend that there was a risk that Ms Treanor could not consider the evidence impartially:

(a) The well informed objective observer would be aware of the small pool from whom Irish midwives with homebirth

experience would be drawn and would be aware that, in a country such as Ireland, the likelihood of some degree of

familiarity between expert witnesses and the professional nurses sitting to hear inquiries is high;

(b) The objective observer would also be aware that Ms. Hanrahan was acting in her capacity as expert and therefore

was simply presenting her personal view, in her capacity as expert, on the allegations of professional misconduct alleged

against the Appellant;

(c) The objective observer would be aware that there was, in truth, no real community of interest between Ms. Hanrahan

and Ms. Treanor. What they have in common is that they both work for the Rotunda Hospital. However, they have no

common interest in ensuring that the CEO succeeded in its prosecution of allegations of professional misconduct against

Ms. O’Ceallaigh;

(d) Ms. Treanor is an experienced member of the Fitness to Practise Committee, having been a member of the An Bord

Altranais since 2002. There was no cogent reason for believing that, because she worked in the same hospital as Ms.

Hanrahan she would necessarily prefer the evidence of Ms. Hanrahan over the evidence of any of the many experts whom

Ms. O’Ceallaigh proposes to call;

(e) Ms. Treanor is one of five decision makers. The case law on bias generally relates to the role of one judge deciding on

his or her own. The likelihood of a bias arising must be diminished where the decision is taken by a group, in particular with

the benefit of advice of an independent legal assessor.

The relevant principles

34. The principles to be applied by our courts in adjudicating on allegations of objective bias have been well-established for a number

of years and, in particular, by two decisions of this Court delivered within two months of each other in the year 2000. There is an

inevitable tendency on the part of counsel to suggest that each new decision on a particular or novel set of facts constitutes a

development in the law. There are many individual instances of decisions on particular facts. Here, it seems to me that our courts

have merely been concerned to apply very well known criteria.

35. I believe that the law is comprehensively and authoritatively stated in the judgment of Denham J, delivered in July 2000, in Bula v

Tara (no.6). Having reviewed the law, and having considered, in particular, the decision of the House of Lords in Reg. v Gough [1993]

A.C. 646, she rejected the suggestion that our courts should adopt a test based on “a real danger of bias.” She cited the decision of

the High Court of Australia in Webb v The Queen (1993-1994) 181 C.L.R. 41 to similar effect. She held, at page 441in favour of a test

based on reasonable apprehension of bias:

“However, there is no need to go further than this jurisdiction where it is well established that the test to be applied is objective, it is

whether a reasonable person in the circumstances would have a reasonable apprehension that the Applicants would not have a fair

hearing from an impartial judge on the issue. The test does not invoke the apprehension of the judge or judges. Nor does it invoke the

apprehension of any party. It is an objective test – it invokes the apprehension of the reasonable person”.

36. The same test had been propounded by Keane C.J., in May of the same year, in Orange Communications Ltd. v Director of

Telecoms (No. 2) [2000] 4 I.R. 159 at 186 as follows:

“While the test for determining whether a decision must be set aside on the ground of objective bias has been stated in different

ways from time to time by the courts in the United Kingdom, there is, in the light of the two authorities to which I have referred, no

room for doubt as to the applicable test in this country: it is that the decision will be set aside on the ground of objective bias where

there is a reasonable apprehension or suspicion that the decision maker might have been biased, i.e. where it is found that, although

there was no actual bias, there is an appearance of bias.”

37. The two cases to which the Chief Justice referred were Dublin Wellwoman Centre Limited v. Ireland [1995] 1 I.L.R.M. 408 and

Radio One Limerick Ltd. v. I.R.T.C. [1997] 2 I.R. 291.

38. The allegations of bias made the Bula case related to the participation of judges in decisions affecting parties for whom they had

previously acted as counsel, while practising at the bar. It is, nonetheless, instructive to note that Denham J attributed, at page 444,

to the hypothetical reasonable observer a “reasonable knowledge of the way counsel work -- but not a knowledge in depth such as

could be attributed to a lawyer or legal academic." She noted, furthermore, at page 445, that “a prior relationship of legal adviser and

client does not generally disqualify a former adviser on becoming a member of a court from sitting in proceedings.” She also recalled,

at page 442, that “a judge has a duty to sit and determine cases.”

39. She made, at page 445, in particular, the important point, emphasised by the trial judge in this case, that, in assessing objective

bias, the “links must be cogent and rational,” i.e., there must be a real and not a mere hypothetical or a speculative link between the

association under consideration and the apprehension of lack of impartiality being alleged.

40. On this point, she cited, with approval, at page 445, the following analysis of Merkel J. in Aussie Airlines Pty. Ltd. v. Australian

Airlines Pty. Ltd. (1996) 135 A.L.R. 753:-

"55. In my view, as with the cases considering personal, family and financial interests, the decision in the cases dealing with

professional association between adjudicator and litigant demonstrate that the courts do not take a hypothetical or unrealistic view

of an association relied upon in a disqualification application. In particular they appear to accept that the reasonable bystander would

expect that members of the judiciary will have had extensive professional associations with clients but that something more than the

mere fact of association is required before concluding that the adjudicator might be influenced in his or her resolution of the particular

case by reason of the association. Although the test is one of appearance it is an appearance that requires a cogent and rational link

between the association and its capacity to influence the decision to be made in the particular case. In the absence of such a link it

is difficult to see how the test for disqualification as stated in Livesey can be satisfied." (emphasis added)

41. This need for a cogent and rational link between the claimed bias and the feared departure of the adjudicator from the standard

of impartiality, has been emphasised in two subsequent cases in the High Court of Australia. In particular, in the majority judgment

delivered by that Court in Smits v Roach, cited above, the case where Kirby delivered a wide ranging concurring judgment cited by Dr

Forde. At paragraph 53, three judges from the majority (Gleeson C.J., Heydon and Crennan JJ), with whom two other members

(Gummow and Hayne JJ) agreed in a separate judgment, cited the earlier judgment of the court in Ebner v Official Trustee in

Bankruptcy (2000) 75 ALJR 277, paragraph 8:

“The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its

application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other

than on its legal and factual merits. The second step is no less important.. There must be an articulation of the logical connection

between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or

juror) has an 'interest' in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the

asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness

of the asserted apprehension of bias be assessed.”

42. In Smits v Roach, the objective bias alleged was that the brother of the judge trying a case between a firm of solicitors and a

former client was a member of the firm of solicitors which formerly acted for the same former client. It was alleged that the judge’s

brother’s firm might be indirectly affected by the outcome of the case. On that point, Kirby J differed from his colleagues. Five of the

judges thought that the required cogent link had not been shown between the judge’s brother and any risk of partiality suspected or

apprehended. Kirby thought otherwise.

43. Many attempts have been made not so much to lay down rules as to provide general guidance to courts called upon to judge on

the presence or absence of objective bias. The categories range from real or believed financial or property interest through close

family connections and intimate friendships to broader categories of association, common interests, pursuits or characteristics. One

passage which has been quoted in a number of Irish cases (including in several of the judgments in Orange Communications) is the

joint judgment of Lord Bingham, Lord Woolf and Sir Richard Scott, V-C., in the Court of Appeal in England in Locabail (UK) Ltd –v-

Bayfield Properties Ltd [2000] Q.B. 45:

“It would be dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias.

Everything will depend on the facts, which may include the nature of the issue to be decided. We cannot, however, conceive of

circumstances in which an objection could be soundly based on the religion, ethnic or national origin, gender, age, class, means or

sexual orientation of the judge. Nor, at any rate ordinarily, could an objection be soundly based on the judge’s social or educational or

service or employment background or history, nor that of any members of the judge’s family; or previous political association; or

membership of social or sporting or charitable bodies; or Masonic associations; or previous judicial decisions; or extracurricular

utterances… or previous receipt of instructions to act for or against any party, solicitor or advocate engaged in a case before him; or

membership of the same inn, circuit, local law society or chambers…. By contrast, a real danger of bias might well be thought to arise

if there were personal friendship or animosity between the judge and any member of the public involved in the case; or if the judge

were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be

significant in the decision of the case; or if, in a case where the credibility of any individual were an issue to be decided by the judge,

he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach

such person’s evidence with an open mind on any later occasion; or if on any question at issue in the proceedings before him the

judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on his

ability to try the issue with an objective judicial mind; or if, for any other reason, there were real grounds for doubting the ability of

the judge to ignore extraneous considerations, prejudices and predilections and to bring an objective judgment to bear on the issues

before him…”

44. Murphy J commented on the above passage in his judgment in Orange Ltd. v. Director of Telecoms. (No. 2) [2000] 4 I.R. 159 at p.

243 as follows:-

"It is unnecessary to express any view whether all the circumstances listed by Lord Bingham as being unexceptional would be similarly

treated in this jurisdiction or whether, indeed, a comparable list here would be even longer."

45. Several further decisions of our courts were discussed at the hearing of the appeal, e.g., Kenny v Provosts, Fellows and Scholars

of the University of Dublin and others [2008] 2 I.R. 40, Kelly v The Visitors of the College of the Holy and Undivided Trinity of Queen

Elizabeth near Dublin [2007] IESC 61. These are merely further particular instances of application of the principles. In both of these

cases, I wrote on behalf of the Court; in each, I cited the passage from the judgment of Denham J in Bula at page 444, quoted

above. In the Kelly case, the objection was to the participation in the deliberations of the Visitors of the College, concerning an

allegation against a student, of a Pro Chancellor of the University, who had formerly been Professor of German and who had, at

different times, held positions as Registrar, Senior Proctor, Junior Proctor, and Dean of Visiting Students. The Court held that no case

had been made out even to grant leave to apply for judicial review on the ground of bias. It rejected expressly the suggestion that

objective bias existed because of the Visitors natural wish to vindicate the best interests of the College would render her more likely

to favour a member of staff over a student. She had no interest in the outcome of the appeal “other than that of seeing that matters

are justly and correctly decided.”

46. The learned trial judge cited the decision of the House of Lords in Gillies v Secretary of State for Work and Pensions [2006] 1

W.L.R. 781. The complaint in that case was that the medically qualified member of a three-person social-welfare tribunal, dealing with

an appeal concerning the right to a disability allowance, had herself provided reports to the paying benefits agency as an expert

medical practitioner (“EMP”)and that this would give rise to an apprehension that she might be unable to act impartially in assessing

the reports of other expert medical practitioners. Lord Hope expressing the views of the House of Lords, explained that “the critical

issue is whether the fair-minded and informed observer would conclude, having considered the facts, that there was a real possibility

that Dr Armstrong would not evaluate reports by other doctors who acted as EMPs objectively and impartially against the other

evidence.” It is interesting to note that he stressed that it was “to be assumed, as Kirby J put it in Johnson v Johnson (2000) 201

CLR 488, 509, para 53, that the observer is neither complacent nor unduly sensitive or suspicious when he examines the facts that he

can look at.” Referring to the medical practitioner, against whom objective bias was alleged, Lord Hope said at paragraph 18:

“Her relationship with the Benefits Agency was as an independent expert adviser. Her advice was sought and given because of the

skills that she was able to bring to bear on medical issues in the exercise of her professional judgment. A fair-minded observer who

had considered the facts properly would appreciate that professional detachment and the ability to exercise her own independent

judgment on medical issues lay at the heart of her relationship with the Benefits Agency. He would also appreciate that she was just

as capable of exercising those qualities when sitting as the medical member of a disability appeal tribunal. So there is no basis for a

finding that there was a reasonable apprehension of bias on the ground that Dr Armstrong had a predisposition to favour the interests

of the Benefits Agency.”

47. At paragraph 20, Lord Hope added:

“The weakness of the argument that this was a real possibility is exposed as soon as the task that Dr Armstrong was performing as an

EMP is compared with the task which she was performing on the tribunal. In each of these two roles she was being called upon to

exercise an independent professional judgment, drawing upon her medical knowledge and her experience. The fair-minded observer

would understand that there is a crucial difference between approaching the issues which the tribunal had to decide with a

predisposition in favour of the views of the EMP, and drawing upon her medical knowledge and experience when testing those views

against the other evidence. He would appreciate, looking at the matter objectively, that her knowledge and experience could cut both

ways as she would be just as well placed to spot weaknesses in these reports as to spot their strengths. He would have no reason to

think, in the absence of any other facts indicating the contrary, that she would not apply her medical knowledge and experience in

just the same impartial way when she was sitting as a tribunal member as she would when she was acting as an EMP.”

48. These passages provide useful guidance in the present case. They concern the capacity of a member of a tribunal, who had also

acted as an expert witness before the same tribunal, to act independently in assessing the expert evidence of witnesses like herself.

Expert members of boards or panels are not considered to be reasonably in danger of being incapable of bringing independent

judgement to bear on the evidence, merely because of past or even existing professional association.

Consideration and conclusion

49. Turning to the present case, it must be emphasised from the outset that there is no evidence that either Ms Treanor or Ms

Hanrahan had any interest in the outcome of the enquiry into the complaint against the appellant other than that of upholding proper

professional standards of nursing and midwifery. In particular, there is no warrant whatever for the suggestion that there existed at

the Rotunda Hospital any hostility to the practice of domiciliary midwifery. There is no scintilla of any suggestion in any affidavits

sworn on behalf of the appellant that either Ms Treanor or Ms Hanrahan entertained any hostile feelings of this sort. If such a

suggestion had been made, there would have been an opportunity to reply to it on affidavit. In this context, it is noteworthy that,

according to the evidence of Ms Byrne, who acted as Chief Executive Officer, Ms Hanrahan was chosen to be the expert witness

precisely because of her experience in the area of midwifery management of a home birth. There is not the slightest basis for any

suspicion that a reasonable person would believe that she would give her evidence otherwise than objectively and independently.

50. It also bears emphasis that the Rotunda Hospital had no involvement whatever in the particular case. Ms Hanrahan was called as

an expert and independent witness only on behalf of the Board.

51. Ms Treanor was the chairperson of the Committee and, as such, was obliged to act objectively, impartially and independently. As

already stated, no evidence was produced to support the allegation that the Rotunda Hospital, as an institution, was hostile to births

taking place in the home of the mother and, still less, any justification for the suggestion that Ms Treanor entertained such views.

52. The very most that can be said is that Ms Treanor and Ms Hanrahan worked in the same Hospital and that, for that reason alone,

a reasonable, objective and well-informed observer, would reasonably apprehend that the former would be unable to consider the

evidence of the latter in a proper, objective and professional way. The appellant seeks to support her case by reference to the fact

that, as happened in the case of an earlier inquiry into a nurse, both had been called as witnesses and that Ms Treanor had

commissioned a report from Ms Hanrahan. That case is evidence, at the most, of the fact that those two persons acted professionally

in a matter in which both had a proper professional interest. I would add that the suggestion of concealment of that case is, in any

event, completely unfounded. It was decided and judgment was given in February 2009; the inquiry commenced in May of that year.

53. For my part, I cannot discern any ground upon which the hypothetical objective, well-informed and reasonable observer would

reasonably apprehend that Ms Treanor would not be able to bring a proper independent and impartial mind and judgment to the task

before her.

54. Dr Forde, as already stated, laid especial emphasis on a number of passages from the concurring judgement of Kirby J in Smits v

Roach, already cited. The learned judge, at paragraph 102, advocated “ relatively strict rules and practices in respect of the

disclosure by judges of a potentially disqualifying interest or association…” he developed this point at considerable length. His view

was that prior disclosure operated “ prophylactically” and that it helped “ to maintain respect for the integrity of judicial performance

in the nation, as a model for the region and the building of the rule of law globally.”

55. It is, however, unnecessary to resort to Antipodean jurisprudence for such an obvious proposition. Denham J, in the Bula

judgement, at page 460, remarked:

“ There is a duty on the judge to ensure that the court is impartial. There is a duty on the judiciary to disclose matters that may

impair an impartial trial. There is a long practised convention of the judiciary in so doing. It is routine for judges to disqualify

themselves when it is appropriate.”

56. McGuinness J, in her concurring judgement in the same case, discussed the propriety of disclosure. She concluded, however, by

referring to a decision of the New South Wales Court of Appeal in Dovade Pty. Ltd. v. Westpac Banking Group [1999] N.S.W.C.A. 113,

which contained the following:

"Statements are to be found in judgments and writings to the effect that it would be good practice for judges who may be concerned

that some matter or association could possibly give rise to an apprehension of bias ought in those circumstances to disclose the

matter or association. Obviously this may be prudent. And, like judicial courtesy, it may serve the interests of justice in that it

removes unnecessary obstacles and difficulties. However it is a different matter to elevate cautious or even good practice into a legal

principle that the failure to disclose in such circumstances is itself a ground for setting aside a judgment. The party that succeeded in

litigation has interests too."

57. There are, in any event, several difficulties with the argument, including an element of circularity. Whether a complaint of

objective bias is present depends on the application of the "reasonable observer" test. It does not depend on whether the particular

association has or has not been disclosed. If a matter does not amount to objective bias, it does not become so by reason of not

having been disclosed. No authority has been produced in support of the argument that failure to disclose a matter, which otherwise

does not amount to a ground of objective bias, can amount to evidence of such bias.

58. In any event, as was pointed out at the hearing, nondisclosure was not one of the grounds upon which leave to apply for judicial

review was granted. Finally, it is difficult to consider this case as one of nondisclosure at all. Although Ms Treanor did not announce

her position at the Rotunda Hospital at the commencement of the hearing, this fact was frankly accepted once the matter was raised

and further information was provided by the legal assessor. The issue was then fully argued on the basis of complete knowledge of

any relevant facts. I am satisfied that the appellant’s argument based on non-disclosure must fail both on the law and on the facts.

59. I would dismiss the appeal.