Professional Regulation - Bias:

Ó Ceallaigh v An Bord Altrainais [2011] IESC 50: In December 2011, the Supreme Court unanimously dismissed an appeal by a domiciliary midwife from a High Court decision refusing to restrain the continuation of a professional misconduct hearing on the ground of objective bias.

The High Court had found that there was insufficient evidence of objective bias in circumstances here. All that was adduced in this regard was that, during the professional misconduct hearing, it emerged that the chairperson of the tribunal worked at the same hospital as the principal expert witness who was giving evidence in support of the allegations of misconduct. It had been submitted on behalf of the domiciliary midwife that a reasonable person, knowing the respective roles of the chairperson and the expert witness, would have a reasonable apprehension that the chairperson would not be able to find in favour of opinions that were in conflict with the opinions of the expert witness.

Speaking for the majority, Fennelly J noted that the law and principles in this area were settled and well-known, and were set out comprehensively and authoritatively in the judgments of Denham J, in Bula v Tara (No. 6) and Keane CJ in Orange Communications Limited v The Director of Telecommunications Regulation.

In both of these decisions, the courts held that the test to be applied was objective, and therefore whether a reasonable person in the circumstances would have had a reasonable apprehension or suspicion that the relevant decision-maker might have been biased.

The test is not whether the particular litigant subjectively apprehended bias; rather, it invokes the apprehension of the hypothetical reasonable person, sufficiently and appropriately well-informed with regard to relevant aspects of the circumstances.

Further, in the Bula case, Denham J added an important...