Kathleen Fitzpatrick v The Board of Management of St Mary’s Touraneena National School

March 2011 167Kathleen Fitzpatrick (F) was absent on sick leave from her teaching post in St. Mary’s Touraneena National School (the Board) for approximately 360 days over a four year period. In 2006, having been absent since the previous September, F’s GP, a consultant psychologist and the Minister for Education’s Chief Medical Officer (CMO) all certified her fit to return to work. The Board, however, requested that F submit to an independent psychiatrist for a medical evaluation prior to returning to work.

F took judicial review proceedings in the High Court claiming that the Board had acted beyond its powers and in breach of the principles of fair procedure and in breach of constitutional and natural justice.  Irvine J held that, as the Board had bone fide concerns regarding Fitzpatrick’s fitness to return to work, it had acted legitimately and within its powers. F appealed that decision to the Supreme Court.

Primary Circular 10/05

This case is of little future significance as the “Circular” has since been superseded. At the time, S 7 of the Primary Circular 10/05 governed the procedure to be followed by each of the parties when a teacher was returning to work after a period in excess of three months. 7.1 prohibits a teacher from returning to duty after a period of paid sick leave without submitting a medical certificate of fitness to the school’s Board two weeks prior to their resumption of duties. 7.2 allows a teacher to apply to the Board to return to duty after a period of unpaid sick leave, subject to them providing a comprehensive medical report. The Board must pass that report to the CMO who will determine whether the teacher is fit to return. 7.3 allows the Board, should it have bone fide concerns, to refer the teacher for an independent medical assessment prior to returning to work.


Denham CJ summarised the appeal submissions as:

  • F claimed that the Board had acted beyond its powers in invoking clause 7.3 of the Circular and did so in a manner which was a breach of natural justice.
  • The Board claimed that F failed to discharge the burden of proof, and the trial judge had decided correctly based on the evidence.



The High Court had determined that, as F had not established that the Board was motivated other than by bone fide concerns in invoking clause 7.3, it had acted within its powers. Therefore, to establish a breach of natural justice, F needed to show that the proposed independent medical practitioner was not sufficiently independent or did not have appropriate medical expertise. However, as F sought judicial review of the decision of the Board to invoke clause 7.3 instead of seeking an examination by an independent specialist, such an argument would be moot. The Supreme Court held that, on the evidence presented, the High Court had made the correct decision. The Court rejected F’s appeal and affirmed the decision of the High Court.



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