Stephen O'Toole (applicant) v The Minister for Defence, Ireland and the Attorney General (respondents).

Judicial Review - Certiorari - Applicant a member of the defence forces - Decision to re-grade applicant because of his medical condition - Consequential decision to discharge the applicant from the defence forces - Applicant not aware of arguments against his case which were put before the medical board - Applicant told that his retention would be recommended - Applicant not aware that recommendation had been made for his discharge - Whether breach of natural justice.

The High Court (before Mr Justice Geoghegan ); judgment delivered 9 June 1999.

A decision properly arrived at to re-grade a member of the defence forces can only be judicially reviewable if the decision flew in the face of reason in accordance with well known principles. But, where part of the procedures leading up to the decision to discharge a member of the defence forces was procedurally flawed to the extent that there was a breach of justice, then the applicant is entitled to have the decision quashed.

Mr Justice Geoghegan so held in ruling that both the decision to re-grade the applicant and the decision to discharge him from the defence forces were invalid, and in making an order quashing all records and entries relating to both decisions.

John Trainor SC and Martin Hayden BL for the applicant; Joseph Finnegan SC and Brian Speirin BL for the respondents.

Mr Justice Geoghegan said that the applicant was a member of the defence forces and was seeking an order of certiorari quashing a decision to re-grade him for medical purposes from grade C to grade E and a further order quashing the consequential decision to discharge him from the Army. The background to the claim was that the applicant, while a sergeant in the defence forces sustained two epileptic seizures in May 1991. He was diagnosed with epilepsy at that time. He had had one further seizure in 1993 when he was no longer taking his prescribed medication, but he had been seizure free since then, although he was still under medication. In September 1991, he was re-graded to grade E. This was of significance in relation to the types of duty available and in relation to whether or not service would be extended by the Army. Before his seizures, the applicant had been engaged in the duties of a physical training instructor and he had continued in that position after the diagnosis and seizures. In February 1994, subsequent to one of the annual medical examinations within the Army, the applicant was accepted for the forces for a further two-year period. The applicant had assumed that the Army saw no problem about his condition in that he was not directly involved in the firing of weaponry apart from the ordinary annual practice. However, a very senior officer of the Army Medical Corps, Lieutenant Colonel Concannon, on reading the applicant's medical record, formed the view that he was unfit to remain in the Army because of his epilepsy.

Lieutenant Colonel Concannon was the brigade medical officer of Western Brigade and was formerly command medical officer of Curragh Command. In the case of personnel who were unfit over a protracted period of time and who were unlikely to become fit to carry out regimental duties in the future, he convened medical boards in order to determine the fitness of the personnel in question and their ability to continue in service. In his affidavit, Lieutenant Colonel Concannon said that he considered the applicant to be unfit to carry out armed regimental duties due to his history of epilepsy. In addition, he considered the applicant to be unfit for working at any height and unfit for swimming exercise and the supervision of persons who would be swimming.

Lieutenant Colonel Concannon had decided to convene a medical board to consider the applicant's case. Mr Justice Geoghegan said that the board, as suggested by the applicant, was not a tribunal of appeal from the medical officer who had taken the preliminary view. It was simply part of the procedure leading up to medical re-grading. It was also clear from the Army regulations that medical re-grading could occur at any time, and the applicant did not have a legitimate expectation that he would not be downgraded medically from grade C to grade E. He was in jeopardy of this happening at any time, and a decision properly arrived at to re-grade him could only be judicially reviewable if the decision flew in the face of reason in accordance with the principles laid down in State (Keegan) v Stardust Victims Compensation Tribunal [1986] IR 642 and O'Keeffe v An Bord Pleanala [1993] 1 IR 39. Mr Justice Geoghegan said that it could not be argued that the decision in this case flew in the face of reason. While it could be argued that provided the applicant did not engage in firearms other than as part of the yearly exercise, and given that he was by reason of a deafness diagnosis limited by the Army itself in the right to use firearms, the view could be taken that he was medically fit to remain in the Army given the type of duties he was engaged in, that was a far cry from suggesting that the decision taken in this case was wholly irrational. Mr Justice Geoghegan said that insofar as the application was based either on an alleged legitimate expectation that the applicant would not be downgraded, or on the ground that the decision was irrational, the application must fail.

However, that was not the end of the matter. It must also be considered whether any part of the procedures leading up to the decision to discharge the applicant was procedurally flawed to the extent that there was a breach of natural justice entitling the applicant to have the decision quashed. Mr Justice Geoghegan said that he was satisfied that in two respects the procedures were fatally flawed.

The first aspect of unfair procedure was the fact that arguments by Lieutenant Colonel Concannon against the applicant's case went before the medical board and, on appeal, before the director of the Medical Corps. These were contained both in a separate memorandum and in the form of handwritten comments on correspondence passing between Captain Loftus, the Army medical officer representing the applicant, and the applicant's neurologist. Mr Justice Geoghegan said that notwithstanding that the lieutenant colonel was a medical officer superior in rank to the two medical officers sitting on the medical board and that he himself had suggested the membership of the board, there was nothing wrong in his engaging in advocacy to support his point of view. What was wrong was that the applicant had been kept in the dark that this had been done. There should have been a procedure whereby either the lieutenant colonel himself or the medical board furnished to the applicant the arguments and comments made by Lieutenant Colonel Concannon himself. This was particularly important since he was of a higher rank than the officers sitting on the medical board. While both the initial decision of the board, and the decision on appeal were flawed for this reason, Mr Justice Geoghegan said that once the initial decision was flawed, the question of the validity of the procedures on appeal did not really arise.

Mr Justice Geoghegan said that the second respect in which the procedures were seriously defective was in connection with the final application made to the Adjutant General. The Adjutant General was not a final court of appeal from the decision of the director of the Army Medical Corps. He had a discretionary role in deciding whether, notwithstanding the medical placing of a soldier at grade E, nevertheless because of the duties he was carrying out in the Army or for some other reason, he should be retained in the Army and not discharged. While the Adjutant General would not be legally entitled to exercise his discretion improperly, he was not exercising a quasi-judicial role, but rather an executive role. Mr Justice Geoghegan said that he was entitled, under the Army regulations, to delegate his function to the deputy Adjutant General as had been done in this case. Because the decision was executive and discretionary, Mr Justice Geoghegan said that it was perfectly in order that recommendations be passed up along the line from officers of lower rank to the deputy Adjutant General in connection with the question of whether the applicant should be retained in the defence forces or not. It would be important that the deputy Adjutant General who ultimately made the decision would have before him all the relevant documentation. Unfortunately, in this case, an element of unfairness arose of which the deputy Adjutant General would have been totally unaware, but which was of such a serious nature that it invalidated the decision-making process of the deputy Adjutant General. Under the Army regulations, where a soldier was graded E and recommended for discharge, his immediate commanding officer has to make a recommendation on the application to the Adjutant General for retention as to whether he favoured retention or discharge. The applicant's superior, Commandant Healy, originally made his recommendation in the form of a letter to the deputy Adjutant General. In that letter, Commandant Healy stated that the service of the applicant was outstanding, that he was the only qualified water safety examiner then in the defence forces, and that his condition did not interfere with, or occasion him undue strain in the efficient performance of his duties. It was requested that the applicant be retained.

A copy of this letter was sent to the applicant, who assumed that it would have been before the deputy Adjutant General. However, that letter never reached the deputy Adjutant General, because Commandant Healy decided to send instead a letter of a totally different nature recommending discharge rather than retention.

No notification was given to the applicant of this change of mind, and still less was a copy of the new letter furnished.

In his affidavit, Commandant Healy said that subsequent to writing the original letter, he had received a medical board report and he had also received a verbal briefing from Lieutenant Colonel Concannon. Commandant Healy had said that on the basis of the verbal briefing, he felt he was left with no alternative but to recommend the applicant's discharge from the defence forces.

Mr Justice Geoghegan said that he was not suggesting that Lieutenant Colonel Concannon exerted improper pressure on Commandant Healy, nor was he expressing any view on whether it was appropriate that Lieutenant Colonel Concannon should have been allowed to influence Commandant Healy in connection with a recommendation for retention in view of the fact that that recommendation would have been made on non-medical grounds. It was not necessary to form any view on that. Mr Justice Geoghegan said that he was satisfied that it was a totally unfair procedure to have a letter recommending discharge going to the deputy Adjutant General in circumstances where the applicant had been furnished with a copy of a purported recommendation of a wholly different nature. While Commandant Healy was perfectly entitled to change his mind after typing the initial letter recommending retention and to write a new letter recommending discharge and to send off the second letter, he was not entitled to mislead the applicant into believing that he was recommending retention when he was in fact recommending discharge. Mr Justice Geoghegan said that Commandant Healy might have overlooked informing the applicant of the change of mind, but the result was a fundamental unfairness. If the applicant had received a copy of the second letter, he might have put quite different material before the deputy Adjutant General, and he might have sought support form elsewhere within the Army. The decision of the deputy Adjutant General was therefore invalid.

Mr Justice Geoghegan said that he was rejecting other allegations of conspiracy and deliberate misconduct. There was nothing before him to indicate the Lieutenant Colonel Concannon acted otherwise than bona fide at all stages. Unfairness of procedures had arisen unwittingly from communications or conduct by him, but there was no evidence of any deliberate wrongdoing at any stage on his part.

Mr Justice Geoghegan made an order in lieu of certiorari quashing all records and entries relating to both decisions.

Solicitors: Malcomson Law (Dublin) for the applicant; Chief State Solicitor for the respondents.