A member of the Permanent Defence Forces Naval Service has been granted leave by the High Court to challenge a decision to discharge him for allegedly not meeting medical standards.
Kevin Donoher says he got his own medical report which stated he had no significant medical impairment.
Mr Justice Garrett Simons said the Defence Forces appeared to have failed to heed a warning in its own regulations about observing fair procedures when it decided to discharge Mr Donoher from the Naval Services.
On September 11th, 2023, a medical board determined that Mr Donoher should be discharged on what was referred to as “Grade 3″ basis, which put him below the medical standard required for service.
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The judge said that although it was not stated in the medical board decision, a “Grade 3″ is defined as personnel with moderate impairments or disabilities who have a chronic medical condition which requires supervision and treatment at intervals more frequently than every six months. It is also where an unexpected interruption of treatment will cause an unacceptable risk to health.
Mr Donoher said he was informally given to understand that this grading was recommended because of concerns relating to the condition of his liver, and, in particular, his diagnosis of having a condition of “fatty liver”.
He was told in October 2023 his discharge would be pursued and he was entitled to appeal against the decision.
He submitted an appeal which upheld the decision in April last and he was told he would be discharged on Tuesday, July 9th.
In the meantime, he had got his own hepatologist’s report which indicated he had no significant health impairment.
The report said his condition would equate to “Grade 1″ on the Defence Force’s scale, the judge said. The report was submitted to the military authorities a number of months after putting in his appeal.
Mr Donoher’s solicitor wrote to the Department of Defence raising concern that there had been no indication given that the Deputy Chief of Staff had an opportunity to review the report of his own consultant hepatologist.
There was further correspondence and legal proceedings were issued.
In his decision, Mr Justice Simons said it was not apparent from the papers that the Defence Force’s own requirements before the discharge decision was made were complied with.
In particular, he said, there is no contemporaneous explanation as to what status had been afforded to the report of the consultant hepatologist.
If, for example, the report was not considered because it was not submitted within time, then it was surprising that the rejection of the report as inadmissible was not immediately notified to Mr Donoher, he said.
The judge was satisfied that he had met the modest threshold governing an application for leave to apply for judicial review.
He also said it was surprising that much of the communication with Mr Donoher about his procedural rights appeared to have been oral rather than in writing.
This procedural difficulty may stem from “the quaint notion” of a member being “paraded” before their commanding officer, with a partial record of what was said at that encounter being reduced to writing subsequently, he said.
“It would be preferable that a member be given a written statement setting out, in clear and intelligible language, his or her procedural rights.”
He also granted a 21 stay on the discharge discharge during which time the respondents, the Minister for Defence and the State, may apply to set aside or vary the stay.
The case comes back for mention next week.
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