Whelan v Minister for Defence [2019] IEHC 921 (27 November 2019)

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JUDGMENT of Mr. Justice Binchy delivered on the 27th day of November, 2019

1. The applicant is a lieutenant in the Defence Forces currently attached to 2 Brigade,

Transport Corps, Athlone. He entered the Defence Forces as an Officer Cadet in 2006 and

2. In January 2015, a medical officer in the Defence Forces recommended that the applicant

face a Medical Board because he had failed a fitness test and had failed to bring his body

mass index (“BMI”) to 30 or below. At the time that he joined the Defence Forces, the

applicant had a BMI of 33. On 18th December, 2014, his BMI was 36.

3. The Medical Board was convened and met on 15th April, 2015. It concluded that the

applicant was “below Defence Forces’ medical standards” on the grounds of: “persistent

obesity (BMI > 35) rendering him unfit for armed military duties”. The applicant was

informed that he had 7 days within which to give notice of intention to make

representations against the determination of the Medical Board to the Director of the

Medical Corps (who is now referred to as the Director of the Medical Board), and that he

would have a further 28 days of giving such notice to make such representations in

writing. He was also informed that such representations may be made by himself or on

4. The applicant exercised his right to make such representations by notice of appeal dated

18th May, 2015. He expressly stated that he did not include in his appeal representations

from either legal or medical bodies because, in his words, he believed “that the issue was

resolvable and he accepted personal responsibility for the resolution of the same.” He

“I wholly understand the issues with my consistently high BMI in both my personal,

professional and indeed medical status and furthermore I understand the potential

outcomes for my career of the classification ‘X’ [I explain this classification below]

in light of the above circumstances. The issue of my high BMI and difficulties with

weight have been a constant obstacle for me for the last number of years, and

despite a significant amount of time given I have failed to remedy the same”.

While not disputing the decision of the Medical Board, or his medical classification by the

“Although my inability to lower my BMI has negatively affected my career in a

plethora of ways I have continued to serve in a number of appointments through 2

BDE and have never suffered any significant illness or injury which has prevented

me from carrying out my duties as a transport officer or any of the other tasks

which I may be assigned from time to time. I currently carry out OO2 [ordinary

officer] duties in LBH as my medical status prevents me from carrying out armed

regimental duties for the time being. My current status is neither sustainable in a

practical nor professional sense and I am wholly committed both physiologically and

psychologically to resolve my weight and BMI issues with vigour and

5. He then went on to request a “forestalling on the decision of the Medical Board and the

granting of a period of 7 months” to resolve what he described as a curable condition,

namely his obese state. The form of appeal also set out a series of steps which the

applicant was taking to address his BMI and weight related issues.

6. The Director of the Medical Board, namely Colonel Gerald Kerr considered the appeal and

in a decision of 11th June, 2015, he upheld the determination of the Medical Board. In

his decision, Colonel Kerr stated that the applicant had had ample opportunity to get his

weight under control. He stated that having achieved a weight loss resulting in a weight

of 126kg by the end of a course which the applicant had attended in [this is the HRFA

attended by the applicant] his weight had returned to 133.8kg at the time of the Board.

He also noted that the applicant presented no medical evidence or case in his appeal

7. The procedures which I have summarised above are set out in a document entitled

“Administrative Instruction A12 (New Series) Medical Treatment 2015” at paras. 214 (G)

“The DMB [Director of the Medical Board] shall consider all written representations

made for the purpose of these proceedings by or on behalf of the officer or enlisted

soldier who was reclassified by the Medical Board to “below defence forces medical

standards” within 28 days of receipt of same together with the Medical Board report

and the relevant medical documents which were put before the Medical Board, shall

complete part 4 of annex “A”, and shall immediately notify the officer commanding

At para. (K) of the Administrative Instruction it is stated that:

“The officer or enlisted soldier’s commanding officer will inform him/her of the

DMB’s decision on the representations against the determination of the Medical

Board and complete part 5 of annex ‘a’. NOTE: For further action on the part of the

This latter document was not exhibited or opened to the Court. I mention this because

while the processes described above are clearly set out within the Administrative

Instruction the processes subsequently followed do not appear to be described in any of

8. In so far as is relevant to these proceedings, the Defence Forces Regulations (“DFR”),

59. The provisions of this part of these regulations shall apply to all officers, cadets,

non-commissioned officers and privates except as provided in para. 77.

60. The medical grades and categories prescribed in s. II of this part of these

regulations shall be used in determining and describing the degree of mental and

66.(1) Classification or reclassification shall be carried out in accordance with

instructions which shall be issued by the Director, Medical Corps. The classification

of an officer or an enlisted person shall be entered on his or her medical book

(2) Routine classification or reclassification to any grade, other than Grade X, of

members of the Defence Forces shall be carried out by a medical officer of the

Medical Corps. The decision of the Medical Corps may be appealed to the

appropriate command medical officer who shall convene a Medical Board to classify

or reclassify the officer or enlisted person concerned. The decision of the Board

70. All personnel of the Defence Forces shall be graded under each of the following

The combination of these grades shall be the medical classification in each case.

71.(1) Year of birth. This shall be recorded as the last two digits of the year in which

(2) Constitution. Grading under this heading shall have regard to the presence or

absence of physical or mental impairment, disability, and/or physiological

Grade 1: Personnel with no significant impairment or disability who are considered

healthy and at most require only routine medical surveillance and unscheduled

Grade 2: Personnel with minor impairments or disabilities who require supervision

and/or treatment, where the medical supervision is at intervals of not less than six

months, or where an unexpected interruption of treatment will not create an

Grade 3: 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, or where an unexpected interruption of

Grade 4: Personnel with marked impairments, disabilities or medical conditions

Grade T: Personnel suffering from or recovering from a serious illness or injury

where there are temporary significant restrictions on duties, and personnel who

Grade X: Below Defence Forces’ constitutional standards, i.e. those who do not fall

9. Regulation 71 goes on to provide for similar standards of classification in respect of

military fitness, keenness of vision, colour vision and keenness of hearing. The first two

digits of a person’s classification refer to his date of birth, the third to his constitution, the

fourth to his military fitness and the last three to his keenness of vision, colour and

hearing respectively. The finding of the Medical Board that the applicant was “below

Defence Forces’ medical standards resulted in the applicant being deemed to be a Medical

Classification Code (“MCC”) 87 XX 111. The “XX” meant that the applicant was deemed

to be of a constitution below Defence Forces’ constitutional standards (determined in

accordance with the medical classification criteria above, and also below Defence Forces’

“(1) The inclusion of Grade X in any part of the classification code under any one of the

headings specified in paragraph 70 hereof in a member’s medical classification shall

cause the overall classification of the member to be below Defence Forces’ medical

(2) Where a member on classification or reclassification is found by a Medical Board

and confirmed by the Director, Medical Corps to be Grade X, he or she shall be

regarded as being unfit for service with the Defence Forces and his or her

commanding officer shall initiate action towards retirement, relinquishment of

commission or discharge, as the case may be. Where an officer found to be in this

category is serving on Defence Forces’ Headquarters’ Staff the relevant personnel

staff officer shall notify the Chief of Staff, the Adjutant-General or the

Quartermaster General as may be appropriate, so that the necessary steps may be

(3) If, such an officer, non-commissioned officer or a private is employed in the

capacity in which the disability or disabilities which occasioned his or her being

graded X does not interfere with the efficient performance of his or her duties, or is

unlikely to cause further risk to his or her health, his or her commanding officer or

head of branch at Defence Forces’ Headquarters as the case may be, may forward

an application for the retention of such officer, non-commissioned officer or private,

together with his or her recommendations through the usual channels to the

(a) in the case of an officer, may recommend to the Minister for Defence that

such officer be not retired or be not required to relinquish his or her

(b) in the case of an enlisted person may order that such enlisted person be not

In either case the Minister for Defence or the Adjutant-General, as the case may

be, may subsequently order that the officer or enlisted person be required to retire

or relinquish his or her commission or be discharge because of such disability.”

11. I return now to the facts of this case. Following upon the decision of Colonel Kerr, the

applicant purported to appeal that decision to his commanding officer, General Michael

Beary, on 31st July, 2015. In this appeal he again stated that he was not including any

representations from either legal or medical bodies because, he stated, he believed that

the “issue” was well on the way to resolution and he again accepted personal

12. Before General Beary made any decision on this application, a Commandant Michael

Murray, whom the applicant describes as his “immediate line officer” wrote to General

Beary, on 14th September, 2015, recommending that the applicant be afforded the

opportunity to continue his career in the Defence Forces. It appears from the report of

Commandant Murray that he was purporting to follow the procedures that are to apply

after a finding of medical grade classification X has been determined by the Director of

the Medical Corps. In his report, Commandant Murray refers to correspondence that he

had with the Director of the Medical Corps in relation to the procedures to be followed,

and he notes that the “D Med (by which I understand him to refer to Colonel Kerr) stated

that ‘the processing of the Medical Board and its appeal concluded the Medical Branch

13. It appears from Commandant Murray’s report that he was somewhat uncertain as to the

procedures to be followed at this juncture and in his report he refers to DFR A12 para. 74

(3) which I have set out above. He sought an opinion from the Commissioned Officers’

Management Organisation on the proposed course of action, and that body expressed the

opinion that the applicant should be given the opportunity to appeal at each stage of the

process, if required. Commandant Murray then goes on to deal with the applicant’s

representations in relation to the issue. He had interviewed the applicant on 30th March,

2015, in advance of the Medical Board hearing, and the applicant had acknowledged his

responsibility and the possible serious consequences if he failed to address the issue

satisfactorily. He notes that the applicant requested permission to attend a health related

fitness assessment (“HRFA”) course commencing on 15th April, 2015 and he

recommended the applicant’s participation in the course. He notes that the applicant had

lost over 14 kilos since 13th April, 2015, and his BMI had reduced from 39 to 35. He also

notes that the applicant had successfully completed a swim test on 20th August, 2015.

This was the third limb of the Defence Forces’ fitness test (the applicant having previously

completed the first two limbs compromising press-ups and sit-ups). Accordingly, by that

time the applicant had reached the standard required in all parts of the Defence Forces’

14. Commandant Murray then refers to an administration document which was not opened to

“The member shall then be given 7 days, within which he may make such

representation as he thinks fit, which should be considered by the relevant military

authority prior to making a decision. Failure to observe these principles could lead

to litigation in the courts by the member who is discharged alleging breach of his

Part 10 of this document is also referred to at para. 214 (K) of the Administrative

Instruction A12 document referred to above, and it would appear to have application as to

the procedures to be followed after the determination of the Director of the Medical

15. In any case, Commandant Murray expressed the view that the applicant had

demonstrated his ability to reduce his BMI and, having completed the fitness tests

successfully, he considered that the applicant had demonstrated sufficient progress to be

afforded the opportunity to continue his career in the Defence Forces, and he

recommended accordingly. He also concluded by saying that if the applicant’s current

improvement is maintained, a case would be submitted to the Director of the Medical

16. Commandant Murray’s report is addressed to “GOC 2 BDE”, whom I understand to be

General Beary. Following upon receipt of the applicant’s appeal to him, and also the

report of Commandant Murray, General Beary sought a further opinion in the matter from

a Commandant Clarke who reported on 17th September, 2015. In his report,

Commandant Clarke refers to the same progress made by the applicant as was referred

to by Commandant Murray in his report. He also referred to what he described as a

multi-faceted and holistic approach being followed by the applicant to address his weight

and BMI issues. Apart from reducing his weight and his BMI, he referred to the

applicant’s participation in the HRFA course, meetings with a clinical psychologist in the

Defence Forces, adherence to a diet and lifestyle plan, and participation in a diet and

mindfulness course. Commandant Clarke concludes by stating that the applicant had

acknowledged that he had not faced his weight and related problems with the seriousness

expected of a serving commissioned officer, but having interviewed the applicant and

having reviewed his appeal, he was of the opinion that the applicant was then fully aware

of the gravity of the situation and was now addressing the matter positively. Accordingly,

he recommended that the applicant should be allowed to continue in service, provided

that he maintained what he described as his “already substantial progress”.

17. On 23rd October, 2015, General Beary refused the applicant’s appeal. In his report of the

same date, General Beary refers to the determinations of the Medical Board, the Director

of the Medical Board and the independent investigation conducted by Commandant

Clarke. He said also that he noted the submissions made by the applicant and that he

had considered those submissions and taken them into account. Nonetheless, it was his

“The classification of ‘below Defence Forces’ medical standards’ is not ordinarily

compatible with service in the Defence Forces. It is apparent that simply passing

the fitness test at this stage will not necessarily mean that Lt. Whelan’s medical

grade is immediately upgraded and as such, I am not satisfied that there is

sufficient non-medical evidence or exceptional circumstances to quash the decisions

General Beary then went on to refer to the inability of the applicant to qualify to

participate in a DPT Young Officers course. He considered this to be evidence that his

medical classification grading of XX interfered with the efficient performance of his duties.

In his decision, General Beary states that he informed the applicant that he had 7 days

from the date of the decision to add additional submissions for consideration by “higher

18. On 9th August, 2016, Major General Kevin Cotter, Deputy Chief of Staff of the Defence

Forces, issued a recommendation for the retirement of the applicant pursuant to s. 47 (2)

of the Defence Act 1954. He did so having regard to the determination of the Medical

Board dated 15th April, 2015, and the recommendations of General Beary, and also

having regard to the provisions of DFR A12, para. 74 (2). In this recommendation he

states that he has taken into account the appellant’s appeal to him and states that he has

noted the resultant clinical assessment directed by him and conducted by the SMO

(Senior Medical Officer) of 2 BDE, of July 2015 and the advice given to him by the

Director of the Medical Board that the classification awarded to the applicant by the

Medical Board had not been changed. He concluded his recommendation by directing

notification of the same to the applicant and further directing the applicant be informed

that he have 14 days from 9th August, 2015, to make any submissions for the attention

19. On 20th September, 2016, solicitors acting on behalf of the applicant wrote to the

Defence Forces’ personnel policy branch requesting certain information and

documentation. At the same time, the solicitors lodged comprehensive submissions on

behalf of the applicant in response to the recommendation of Major General Cotter. The

submission was lodged in light of the tight deadline imposed for receipt of submissions,

while at the same time requesting that no decision should be made until such time as all

documentation requested was made available to the applicant. I will address these

submissions below. On 24th October, 2016, the applicant was notified that the Chief of

Staff, Vice-Admiral Mark Mellett had considered the applicant’s case, and had

recommended his retirement from the Defence Forces pursuant to s. 47 (2) of the

Defence Act and Defence Force Regulation A 15 para. 18 (1) (B), to the Minister for

Defence. The applicant was sent a copy of Vice-Admiral Mellett’s letter to the Minister. In

this letter, Vice-Admiral Mellett says that he has considered and taken into account the

(1) The initial determination of the Medical Board of 15th April, 2015;

(2) The appeal of the applicant to the Director of the Medical Board, and the rejection

(3) The appeal of the applicant to the Deputy Chief of Staff to be retained in the

service, and the clinical assessment conducted by SMO 2 BDE in July 2016 and the

advice to him by the Director of the Medical Board that the Medical Classification

Code (“MCC”) awarded to the applicant by the Medical Board had not changed;

(4) The recommendation of the General Officer Commanding of 2 Brigade of 30th

(5) The provisions of Defence Forces Regulation A.12 para. 74 (2);

20. The letter concludes by stating that having regard to all of the above, Vice-Admiral Mellett

was satisfied with the determination of the Medical Board and concurred with the

recommendations of the General Officer Commanding 2 Brigade and the Deputy Chief of

Staff. This decision was made without responding to the request of the applicant’s

solicitors that no decision should be taken until such time as all documentation relied

21. The decision of Vice-Admiral Mellett was the last decision in the sequence of decisions

leading up to these proceedings, which were initiated by way of ex parte docket on 6th

February, 2017. Leave to issue the proceedings was granted by Noonan J. on that date.

22. Subsequent to the decision of Vice-Admiral Mellett, but prior to the issue of proceedings,

the applicant procured a number of medical reports. The purpose of these reports was to

support that which he now claimed i.e. that neither his weight nor his BMI were sufficient

reason to consider that he was unfit for his duties as an officer in the Defence Forces, and

that, on the contrary, he was in fact in good health and neither his BMI nor his weight

impaired him in any way from fulfilling his duties. These reports were sent to the

respondent by letter dated 18th January, 2017. The applicant received a reply dated 24th

January, 2017 stating that the Director of the Medical Corps had read the reports but that

nothing in them changed his view as to the conclusions of the medical Board.

(1) An order prohibiting the respondent, his servants or agents, recommending the

dismissal and/or retirement of the applicant pursuant to the provisions of the

(2) A declaration that the failure by the respondent to provide sufficient reasons for the

decision to dismiss the applicant breached the applicant’s entitlement to fair

procedures and/or constituted a breach of statutory duty, and/or was ultra vires,

(3) A declaration that the failure by the respondent to provide documentation and/or

information sought that related to the decision to dismiss the applicant breached

the applicant’s entitlement to fair procedures and/or constituted a breach of

statutory duty, and/or was ultra vires, and/or breached the Defence Forces’

(4) A declaration that the refusal by the respondent to engage at all with the

submissions made by the applicant on the issue of his dismissal breached the

applicant’s entitlement to fair procedures and/or constituted a breach of statutory

duty, and/or was ultra vires, and/or breached the Defence Forces’ regulations.

(5) A declaration that the refusal by the respondent to engage with medical reports

provided by the applicant on the issues of his medical fitness and fitness to serve

breached the applicant’s entitlement to fair procedures and/or constituted a breach

of statutory duty, and/or was ultra vires, and/or breached the Defence Forces’

(6) A declaration that the refusal by the respondent to consider a regrading of the

applicant’s Medical Classification Code breached the applicant’s entitlement to fair

procedures and/or constituted a breach of statutory duty, and/or was ultra vires,

and/or breached the Defence Act 1954 and the regulations made thereunder.

(7) A declaration that insofar as the regulations failed to provide for an adequate of

system of appeal and/or regrading of medical status said regulations are ultra vires

and contrary to the provisions of the Defence Act 1954 as amended.

(8) A declaration that the operation by the respondent of a fixed and rigid policy with

regards to the medical classification of (sic) breached the applicant’s entitlement to

fair procedures and/or constituted a breach of statutory duty, and/or was ultra

(9) A declaration that the failure by the respondent to investigate expeditiously the

fitness of the applicant to serve, breached the applicant’s entitlement to fair

procedures and/or constituted a breach of statutory duty, and/or was ultra vires,

and/or breached the applicant’s legitimate expectation that serious allegations

concerning fitness to serve against him pursuant to the Defence Forces’ regulations,

(10) A declaration that the respondent in restricting the duties the applicant could

(11) A declaration that the respondent breached the applicant’s rights in failing to

provide a means of overturning the Director of Medical Corps classification of the

applicant pursuant to Defence Force Regulation A.12 para. 74 (2).

(12) An injunction by way of application for Judicial Review restraining the respondent,

its servant or agents from proceeding to dismiss the applicant pending the hearing

of the trial of this action. Such injunction was granted at the leave stage of these

(13) An Order providing for all necessary and/or consequential and ancillary directions in

(14) An interim Order restraining the respondent from any further order suspending the

applicant herein without leave of this Honourable Court. Such an Order was made

(15) Such further or other Order as this Honourable Court may deem fit.

(16) An Order, if necessary, extending the time within which to bring the within

(1) He claims that he was not given any adequately detailed reasons with regard to the

decision to dismiss him from the Defence Forces. While he was advised that his

BMI needed to be lowered, he was not provided any adequately detailed reasons

why his BMI renders him unfit and/or necessitates his dismissal. The failure to

provide the applicant with reasons is in breach of his right to fair procedures and

(2) The respondent failed to provide the applicant with the documentation that detailed

the decision making process surrounding the decision to dismiss the applicant.

(3) The respondent has failed to engage adequately or at all with the submissions and

legal reports provided by the applicant, in breach of his right to fair procedures and

(4) The failure by the respondent to investigate expeditiously the fitness of the

applicant, with the result that his career has been left in stasis. The applicant did

(5) The respondent has acted in an arbitrary and capricious manner.

(6) The respondent has breached the principles of natural and constitutional justice.

(8) The failure on the part of the respondent, his servants or agents to engage with

information supplied by the applicant is in breach of the provisions of the Defence

25. The proceedings are grounded upon an affidavit of the applicant sworn on 6th February,

2017. In his affidavit, the applicant outlines the background to his enrolment as a cadet

in the armed forces in July, 2006. He avers that he underwent medical examinations and

it was noted that he had a BMI of 33 at that time. He successfully completed his

cadetship on 16th January, 2008, following which he was awarded a commission as an

26. The applicant then proceeds to outline the factual background giving rise to these

proceedings. Having referred to his appearance before the Medical Board on 15th April,

2015, and that the Medical Board determined his MCC as 87 XX 111, he then refers to his

appeal of that classification to the Director of the Medical Board, Colonel Kerr. He avers

that at no point did Colonel Kerr carry out any physical examination of him or hear any

oral evidence. He then refers to the decision of Colonel Kerr to uphold the determination

27. He refers to the recommendation of Comdt. Murray of 14th September, 2015 that he

should be afforded the opportunity to continue his career in the Defence Forces, and the

similar recommendation made by Comdt. Clarke of 17th September, 2015. He avers that

around the time of the latter report, he was paraded by General Beary and he informed

General Beary that he had passed the fitness test. He avers that General Beary

congratulated him on having passed the fitness test, and that it was clear to him that at

that time General Beary was totally unaware that he had done so. In spite of that,

28. He then proceeds to the referral to the decision of General Cotter of 9th August, 2016 in

which he states that the Deputy Chief of Staff “in seven abrupt paragraphs”

recommended my dismissal. Following upon that decision he retained solicitors to

prepare a submission on his behalf for the Chief of Staff, Vice-Admiral Mellett. His

solicitor in turn instructed counsel who prepared a detailed seven-page submission with

exhibits. I will return to this submission separately, below. At the same time as making

this submission, his solicitor requested documentation relating to the decision

recommending his dismissal and further requested Vice-Admiral Mellett not to make any

recommendation to the Minister until that documentation was made available to his

29. Notwithstanding this latter request, and his submissions, the Chief of Staff recommended

his retirement. The applicant complains that the letter of the Chief of Staff comprises

“nine curt paragraphs” and that one sentence only is dedicated to the detailed

submissions prepared on his behalf in which Vice-Admiral Mellett states “I have taken into

account Lieutenant Whelan’s submissions to me in this matter”. The applicant then

“This summary dismissal of the detailed submissions submitted on my behalf is

totally unsatisfactory, and I still do not know what the answer is to the issues I

raised in my submissions. In addition, in a situation where my livelihood,

reputation and profession is on the line, in my view it cannot be acceptable to

dismiss or ignore my submission by means of one brusque sentence. Furthermore,

Vice-Admiral Mellett in his letter stated that he had considered the provisions of

Defence Forces’ Regulation A12 para. 74 (2) which provides that where a Grade X

classification is made and this classification is confirmed by the Director of the

Medical Corps the member’s commanding officer shall initiate action to towards

retirement. Again, as with General Cotter, it appears to me that once the Director

of the Medical Corps agreed with my medical reclassification by the Medical Board

30. The applicant then proceeds to exhibit three medical reports in support of his retainer in

the armed forces. The first is a medical report of his GP, a doctor John Casey. In this

report, Dr. Casey states that he could not identify any medical illness that would prevent

the applicant from carrying out his duties as a Lieutenant. He noted that the applicant is

active and plays rugby and trains about four times a week, and also plays rugby matches

at the weekend. He states that the applicant denies any symptoms apart from obesity.

He advised the applicant to seek the opinion of an occupational health specialist and an

31. Following upon these recommendations, the applicant attended a consultant

endocrinologist and bariatric physician namely Dr. Francis Finucane, with whom he

attended on 20th December, 2016. He exhibits a copy of Dr. Finucane’s report of the

same date. In his report, noting that the applicant is entirely well apart from anxiety as a

result of his impending discharge from the armed forces, he states that the applicant has

no evidence of underlying endocrinopathy or insulin resistance. He states that the

applicant weighed 134.6kg, his height was 1.856m, and his BMI was 39.1kg/m sq. He

expresses the opinion that BMI in isolation in a case such as this is a relatively poor

indicator of long term health status. He states that it is his opinion that the exceptionally

high muscular strength of the applicant and his strong swimming ability and overall good

health would be much stronger indicators of his longer time health outlook and his

physical capabilities as an army officer. He concludes by saying that even at his current

weight, it is deeply unfair and irrational to suggest that the applicant’s physical

capabilities in any domain of professional activity would be impaired by his current body

32. The applicant also attended with an occupational physician, namely Dr. Martin Hogan, on

6th January, 2017, and exhibits his report of the same date. Dr Hogan states that he is a

partner in full-time occupational medicine practice since 1994. He lectures in occupational

medicine in University College Cork. He is a fellow of the faculty of occupational medicine

of the Royal College of Physicians of Ireland and an associate of the faculty of

occupational medicine of the Royal College of Physicians of London. He is a specialist

trainer for the faculty of occupational medicine of the Royal College of physicians of

Ireland. Dr. Hogan expresses the opinion that the applicant would be medically fit for all

occupations which he would assess. In his opinion the applicant’s gross strength and

general levels of fitness are adequate even for the most demanding of professions.

33. Dr. Hogan says that he reviewed the armed forces medical classifications as per the

Administration Instruction A12. Dr. Hogan disputes that BMI is a sufficiently reliable

indicator of fitness upon which to make a decision to discharge a person from the armed

forces, which can have such fundamental implications on the future of an individual.

34. Moreover, Dr. Hogan submits that even if BMI is used for this purpose, there was a

misinterpretation of the information in this case. Referring to the Medical Classification

Code, he accepts that Lieutenant Whelan does not fall into grade T, but he states that “by

the definition, for someone to fall into grade X, they would also have to be below a

standard lower than grade 4. Grade 4 is defined as personnel with marked impairment or

disabilities or medical conditions requiring close medical supervision by a clinical

specialist. Several doctors have seen Mr. Whelan and none have suggested that he has a

requirement of close medical supervision by a clinical specialist. I cannot see how

anybody would say that his condition whatever its significance is below grade 4. On this

finding alone, I believe classifying him as a grade X is not alone unjust but against the

Defence Forces’ own regulations. In my opinion therefore, the classification is incorrect

and should be amended”. This point was also made in submissions sent by the

35. The reports of Dr. Hogan and Dr. Finucane were sent to both the respondent (i.e. the

Minister for Defence) and the Chief of Staff by letter dated 18th January, 2017. In the

same letter they invited the respondent/the Chief of Staff to rescind the decision to

recommend the discharge of the applicant, in the light of the contents of these reports.

By letter dated 24th January, 2017 to the applicant’s solicitors, a Ms. Anne Howard of the

Defence Forces personnel policy branch informed the applicant’s solicitors that the

director of the Defence Forces medical branch is of the view that there was nothing in the

information/reports provided that would lead him to the conclusion that the findings of

the medical board were/are in error. The same letter also addresses the applicant’s

complaint that the respondent had failed to provide documentation requested, and stated

that the military authorities had released all documentation requested by or on behalf of

the applicant on 9th September, 2016 and invited the solicitors for the respondent to

clarify the documents that they consider to have not been delivered. No reply was issued

to this letter and these proceedings were brought on 6th February, 2017.

36. The applicant makes one further point in his affidavit which is that due to his medical

classification, he is not allowed to do regimental duties, which means that he is not

permitted to carry out “armed duties”. Nonetheless he states that only the week before

his grounding affidavit (6th February, 2017) he was tasked with organising and running a

day on the shooting ranges for the enlisted men, where soldiers and the applicant fired a

number of weapons at targets as part of target practice and general weapons handling

training. He avers that he found it puzzling that he is not permitted to carry out armed

duties but at the same time he is expected to organise and take part in range firing

Submissions on behalf of applicant to Chief of Staff, 19th September, 2016

37. The following is a summary of the main points made in the submissions:

(i) There were errors in the résumé prepared by Lt. Col. Ahmad to the medical board.

This included a failure to refer to a finding by a consultant endocrinologist that the

applicant might well be healthier than a non-fit, normal weight individual. Other

errors were also alleged to have been made by Lt. Col. Ahmad in this résumé, and

it is submitted that since this forms the basis upon which the medical board was

convened, it is unsatisfactory and may have tainted the views of the medical board,

(ii) The applicant was not informed of his right to instruct a legal representative to

(iii) There are errors in the report of Colonel Kerr in relation to the appeal of the

applicant from the medical board finding. He incorrectly states that at the time of

the medical board finding the applicant’s weight had returned to 133.8kg when in

fact between the period 13th April – 1st May, 2015 it had reduced from 134kg to

125kg. Accordingly, Colonel Kerr’s opinion was based on an incorrect reading of

(iv) General Beary acted in error in disregarding the fact that the applicant had passed

the fitness test and also in disregarding the positive recommendations made by

Comdts. Clarke and Murray. Furthermore, the applicant has conducted a wide

range of duties, which were praised by Comtd. Murray and others in the preceding

(v) General Beary was incorrect in stating that even if the applicant passed the fitness

test it would not mean that his medical grading would be upgraded. This is an

issue that only a medical officer can decide, and is beyond the expertise of General

Beary. It is clear that the applicant was fit enough to deserve an upgraded medical

(vi) Once the applicant passed his Defence Forces fitness tests, he could no longer be

Medical Classification Code X. That medical classification is directly linked to

military fitness, and that is apparent from s. 205(1) 6 of DFR A12 which states:

“grade X shall apply to personnel who are not eligible for any other grade and are

deemed to be below Defence Forces medical standard with regard to military

fitness”. At a minimum, the applicant should have been reclassified grade 4,

although it was submitted that he could meet a higher classification.

38. Firstly, it is admitted that the applicant was referred to a Medical Board in April 2015 and

was classified as 87 XX 111 “below Defence Forces’ medical standards”. It is pleaded that

the medical classification was determined following a full clinical examination of the

applicant by the appropriate medical personnel in accordance with DFR A12.

39. In general terms, the respondent denies that he has acted in an arbitrary and capricious

manner, or that he has breached the principles of natural and constitutional justice, or

40. It is pleaded that the applicant was advised at his initial medical assessment in July 2006

that he should lose weight and was repeatedly advised in the following years that his

weight and BMI were matters of concern. Far from contesting this assessment, the

applicant continually acknowledged that he needed to address these concerns properly,

41. The respondent pleads that on three occasions, firstly when appealing the finding of the

Medical Board to the Director of the Medical Corps, secondly when making further

representations (to General Beary) on 31st July, 2015, and thirdly when making further

submissions to the Deputy Chief of Staff on 20th November, 2015, the applicant

acknowledged his difficulties in addressing his weight and BMI. On the first of these

occasions, the applicant acknowledged that despite having been given significant time, he

had failed to remedy either his weight or his BMI and asked for a further seven months to

do so. On the second occasion he requested a six-month suspension of his retirement to

enable him to reduce his weight and his BMI. The applicant made no representations on

42. Accordingly, it is further pleaded that having accepted the findings of the Medical Board

throughout his appeal and application for retention in service for almost 18 months, the

applicant acquiesced in the findings of the Medical Board and is estopped from objecting

to them in these proceedings. Furthermore, the applicant also acquiesced in the manner

in which his appeal and application for retention in the Defence Forces were processed.

43. With regard to BMI, the respondent pleads that the Director of the Medical Corps

instruction for medical officers was amended in January 2010 to provide expressly that

“subject to the limitations of the system, the Body Mass Index is an effective indicator of

body fat and obesity. Personnel with a BMI in excess of 30, unless justifiable by

physiological state or body fat measurements will be regarded as obese and graded

constitution three and military fitness three or four.” The respondent pleads that this

policy is not binding and that it is expressly recognised in the DMC instructions that each

case must be decided on its merits, and the instructions are a guide to expert medical

44. It is then pleaded that the circumstances in which a person with a BMI in excess of

35kg/m2 (such is the applicant) could nonetheless be assessed not to be clinically obese

owing to physiological state or body fat measurements are almost negligible, but will

absolutely be identified on physical examination by qualified medical personnel.

45. The respondent pleads that the applicant was given every opportunity throughout his

service in the Defence Forces to address his weight and BMI but failed to do so

adequately. Moreover, he was given every opportunity to make representations on his

own behalf from the time the Medical Board was convened up to and including the

decision of Vice-Admiral Mellett. The respondent availed of these opportunities and his

representations were considered by the Director of the Medical Corps, his general

commanding officer, the Deputy Chief of Staff and the Chief of Staff of the Defence

46. Furthermore, over and above the requirements of the DFR, the applicant was re-

examined by the Director of the Medical Corps in July 2016, at which examination the

47. It is denied that General Beary was unaware of the fact that the applicant had passed his

fitness test in October 2015. General Beary requested an independent review of the

applicant’s case, and having considered that review and the representations of the

applicant and the entirety of his case, General Beary did not recommend that the

applicant should be retained in service. In doing so he referred in particular to the fact

that the applicant’s inability to participate on a transport young officers’ course

demonstrated that the applicant’s medical classification did interfere with the efficient

48. Similarly, Major General Cotter, having had the applicant medically re-examined on 18th

July, 2016, concluded that there was no evidence that the applicant’s medical

classification had changed. Having considered the history of his case, his medical

classification and the fact that the applicant had either been excused duties or had been

on sick leave for 58 days in 2016 and at that stage had yet to complete his fitness test for

the year, Major General Cotter also recommended the applicant’s retirement on 29th July,

49. It was only in the course of making representations to Vice-Admiral Mellett, and when

seeking an extension of time for making such representations, that the applicant for the

first time sought a copy of the documents relied on in reaching the decision to

recommend his retirement from the Defence Forces, and of all policy guidelines. It is

pleaded that this request was complied with on 12th September, 2016, on which date all

documents relating to the discharge of the applicant were delivered by hand. By letter

dated 24th January, 2017, the respondent asked the applicant to specify the documents

which he believed remained outstanding. However, rather than engage with this request,

the applicant instituted these proceedings. Accordingly, any application for relief based

on outstanding documents is premature and inappropriate in all of the circumstances.

50. Four affidavits were sworn on behalf of the respondent in opposition to these proceedings.

The first is an affidavit of Commander John Murphy, Brigade Medical Officer of 1 Southern

Brigade, Collins Barracks, Cork. Commander Murphy avers as to his credentials. He is a

medical practitioner holding the commissioned rank of Commander in the Defence Forces.

Commander Murphy was appointed as Brigade Medical Officer, 1 Southern Brigade in

January 2011, and held that position on 20th February, 2015, when he was appointed as

president of the Medical Board convened to examine the applicant. The other members of

that board were Lt Col Ahmad and Captain Martin Neary. Commander Murphy exhibits a

51. Commander Murphy avers that at the outset of the proceedings of the Medical Board, the

applicant sought to adjourn the proceedings of the Medical Board in view of efforts that he

was making to address his BMI. However, in view of the long history of the applicant and

the many opportunities given to him up to that point, the Medical Board decided to

52. Commander Murphy avers that the Medical Board tested the applicant’s weight and BMI,

and found them to be 133.8kg and 39.8kg respectively. His abdominal circumference

was 121cm and his hip circumference was 128cm. He exhibited the presence of a fat

apron, a physical sign associated with obesity and accordingly he was assessed as being

clinically obese. In view of these findings, it was decided to reclassify the applicant’s

medical grade to 87-XX-111, which is “below Defence Forces’ standards as set out in DFR

53. The second affidavit sworn on behalf of the respondent in opposition to these proceedings

was sworn by Colonel Kerr and is also dated 22nd November, 2017. Colonel Kerr

provides his credentials. He is licenced to practice medicine in Ireland. He is a member

of the Royal College of General Practitioners and a licentiate of the faculty of Occupational

Medicine of the Royal College of Physicians of Ireland and a fellow of the faculty of Sports

and Exercise Medicine of the Royal Colleges of Physicians and Surgeons in Ireland. He is

a member of the faculty of Military Medicine in Ireland. He holds a masters’ medical

science degree in sports and exercise medicine. He is entered on the specialist divisions

of the medical council’s register of medical practitioners in (1) general practice, (2)

occupational medicine and (3) sports and exercise medicine. He has over 29 years’

experience in the practice of military medicine and at the date of swearing of his affidavit

his appointment was that of Director Medical Branch (formally Director of the Medical

54. While swearing his affidavit in opposition to the statement of grounds of the applicant,

Colonel Kerr avers that he wishes to respond in particular to the medical reports filed on

behalf of the applicant as exhibited by the applicant in his affidavit.

55. Colonel Kerr rejects the medical reports submitted on behalf of the applicant. Insofar as

those reports are based on factual matters, he says that they appear to be based upon

facts supplied by the applicant as regards his medical history and levels of activity, and he

questions the applicant’s candour in regards the information supplied by him to Dr.

Casey. For example, Dr. Casey reports that the applicant denies any symptoms apart

from obesity, but the applicant has a history of anxiety referred to by his own solicitor in

56. Colonel Kerr also queries the candour with which the applicant reported on his health to

Dr. Finucane. Dr. Finucane states that the applicant never “had an issue passing his

fitness tests”, but Colonel Kerr says that it is apparent from another affidavit sworn on

behalf of the respondent, that of Terrence White (which I refer to below), that the

applicant failed fitness tests on five occasions between 2008 and 2016. Colonel Kerr also

notes that at the time of his examination by Dr. Finucane on 20th December, 2016, the

applicant’s BMI had again increased from 35 in September 2015, to 39.1.

57. Colonel Kerr avers that the applicant gave a similarly misleading history of his fitness test

results to Dr. Hogan. Colonel Kerr queries the expertise of Dr. Hogan to comment on the

matter in which the applicant’s medical classification was determined. He avers that it is

not apparent that Dr. Hogan has any practical experience of the working environment in a

military context, and that it has been recognised since October 2015 that military

medicine is a speciality area of medicine in its own right. He rejects, in some detail, the

criticisms of the medical classification system of the Defence Forces. He addresses the

risks posed to personnel by obesity in the context of serving members of the Defence

Forces. He avers that persons with a BMI of 25 – 29.9 are considered to be overweight,

while those with a BMI of 30 – 34 are considered to be obese, and those with a BMI of 35

– 39.9 are defined as being severely obese. He says that it is well established that obesity

is associated with increased incidences of cardiovascular and ischaemic heart disease,

diabetes and certain cancers and arthritis. He addresses the complications that can flow

from obesity in the field of military operations and in particular in the event of trauma in

the field and avers that elevated BMI can give rise to equivocal or confusing results where

there is excessive abdominal fat. For this reason, in the context of those serving in the

military, elevated BMI will impinge on the medical classification code for reasons other

58. He further avers that there are additional effects of obesity which negatively impinge on

the occupational military environment, such as the ability to fit easily and quickly into

compact and confined spaces can be compromised with potential impacts in an

operational setting on both the individual and the mission. He avers that a higher level of

fitness is required for military life than for any civilian occupation. He therefore queries

Dr. Hogan’s conclusion that the applicant would be medically fit for all occupations which

Dr. Hogan would assess and summarises that Dr. Hogan could have no experience of the

military environment to conclude that the applicant is fit for the Defence Forces.

59. Colonel Kerr avers that it is medically accepted that individuals who exhibit a very high

level of cardiovascular fitness can mitigate the increased risk of a higher BMI and this is

reflected in the MCC which gives non-binding guidance that those personnel with the BMI

in the range of 30 – 34.9 and who exhibit a grade one in the cardiovascular element of

the fitness test may be considered to have physiologically justified the award of a

constitution of grade one or two as appropriate. However, once an individual’s BMI

exceeds 35, then abdominal girth becomes an irrelevance insofar as arithmetically and

anatomically it is almost impossible the same should not be high.

60. Colonel Kerr avers that no one isolated test is an adequate substitute for an overall

medical examination by an experienced physician, which is of course what takes place in

the Defence Forces and would have taken place in the case of the applicant. He avers that

he does not give binding instructions to medical officers in carrying out their duties: any

medical examination and classification must be evidence based and in conformity with

their expert professional opinion. He avers that inherent in the awarding of a Medical

Classification Code is an informal or moral duty of care by which the Defence Forces are

bound towards their service members in the case of those who exhibit an increased risk of

cardiovascular disease. The Defence Forces should not further compound the hazard by

inappropriate tasking, including by extending the service of a member of a particular age

who is no longer sufficiently physically fit to undertake the range of duties of a member of

the Defence Forces. He avers that this was the conclusion reached with regard to the

applicant. [Counsel for the applicant submitted that there is no evidence of this

“I believe that it is vital and it would be expected that members of the Defence

Forces – especially but not only enlisted men and/or those not in staff positions –

should not be obese and should have a level of physical and military fitness to

serve as soldiers in the field if required. I am alarmed that these proceedings

62. Colonel Kerr exhibits to his affidavit a document entitled DMC Instruction for Medical

Officers Number Four – Application of Medical Classification System. This document is

1. The following epitome has been drawn up to assist medical officers and medical

boards in the classification/reclassification of personnel indicating the usual effect

2. The statements are not intended to bind the medical officer or medical board to

place the officer or soldier in the suggested grade, for it is recognised that each

case must be decided on its merits. They are to be regarded as a guide to medical

officers and medical boards to assist them, insofar as it is possible, to ensure

uniformity in the classification of personnel throughout the Defence Forces and will

be taken in conjunction with “Medical Classification” DFR A12 paras. 70 – 74.

3. Where the suggested grades refer only to numerical grades this does NOT preclude

the award of T or X grades when the nature or severity of the condition warrants

63. In the same document, at para. 36 the following is stated in relation to obesity:

“Subject to the limitations of the system, the Body Mass Index (BMI) is an effective

indicator of body fat and obesity. Personnel with a BMI in excess of 30, unless

justifiable by physiological state or body fat measurements will be regarded as

obese and graded constitution three and military fitness three or four. Personnel

with a BMI in excess of 35, unless justifiable by physiological state or body fat

measurements will be investigated and advised that failure to reduce their weight

to give them a BMI of 35 or less within twelve (12) months will lead to a

64. This text appears in a 1997 document, exhibited, but it is also recorded, in absolutely

identical terms, as an amendment to the 1997 document, introduced on 24th March,

2010. It seems likely therefore that this para. became effective as of the latter date.

Neither party commented on affidavit as to whether or not the applicant was advised as

required by this para. to reduce his weight in order to give him a BMI of 35 or less within

12 months, in order to avoid an MCC of X. However, in the course of submissions during

the hearing, the applicant submitted he was never so advised and this was not disputed.

65. Commandant Terrence White of Second Brigade Transport Company, the commanding

officer of the applicant since 8th July, 2016, also swore an affidavit to verify the

statement of opposition herein. Some of this affidavit is of particular relevance and

assistance in relation to the history of the applicant in the Defence Forces and it is worth

quoting this part of the affidavit in full, commencing at para. 5:

“5. I say that applicant joined the Defence Forces in July 2006, at which time he was

noted to have a BMI of 33. I say that he was advised that he should lose weight

and return for further assessment, and I beg to refer to a copy of his medical

examination sheet dated 12th July, 2006, upon which marked with the letters ‘TW1’

6. I say that, while still a cadet, the applicant struggled with his fitness and was

placed on probation as he did not pass the Defence Forces fitness test as laid down

in training instruction 5/2007. Having passed the test on the 21st day of June,

2007, his probation period was terminated, and I beg to refer to a copy of a report

in his progress at this time by his commanding officer, Lt. Col. Colum Campbell,

dated the 14th day of August, 2007, upon which marked with the letters ‘TW2’ I

7. I say, however, that following his commission in January 2008 the applicant’s

fitness levels did not improve. I say that each member of the Defence Forces is

required to undergo an annual fitness test, which is in three parts – (i) Push ups

and sit ups, (ii) 3.2km run, and (iii) a loaded march in fatigues with a backpack

weighing 15kg over a set course of 10km, to be conducted within 6 weeks of the

date of parts i and ii. I say that in lieu of the run in part ii, a member may be

allowed to complete a swim or bicycle ride where a military doctor certifies a

temporary inability to complete the run. I say that the record of the applicant’s

fitness tests demonstrate that, during all his commission to service in the Defence

Forces, he has not completed the full fitness test including the run in part ii. The

only occasion on which he completed the modified test to include the swim was on

the 12th day of October, 2015, and prior to that he completed parts i and ii of the

modified test on the 25th day of August, 2010. Other than these dates, however,

And I beg to refer to a printout of these tests upon which marked with the letters

8. I say that in 2012 his fitness levels were considered to be a matter of ‘grave

concern’ accordingly it was decided to refer the applicant for an immediate medical

assessment, and I beg to refer to a copy of a report of the Director of Defence

Forces’ training dated the 26th day of January, 2012, upon which marked with the

letters ‘TW4’ I have signed my name prior to the swearing hereof.

9. I say that in his annual report AF 451C for 2010/2011 the applicant was advised by

his then commanding officer, Commandant Kevin Campion, that his fitness levels

were unacceptable, and I beg to refer to a copy of this report dated the 15th day of

March, 2012, upon which marked with the letters ‘TW5’ I have signed my name

10. I say that the applicant’s fitness levels did not improve over the following year, and

as noted in his annual report AF 451C for 2011/2012, he was advised that he may

be found unsuitable for continued service in the Defence Forces. Far from disputing

this assessment, the applicant accepted it and indicated his determination to

address this issue and to progress it to an acceptable standard of fitness. I beg to

refer to a copy of this report dated the 13th day of December, 2012, upon which

marked with the letters ‘TW6’ I have signed my name prior to swearing hereof.

11. I say that in his 2014 annual report AF 451, the applicant again noted that he

continued to struggle with his personal fitness, and indicated that he hoped to

address it that year. I beg to refer to a copy of this report dated the 19th day of

January, 2015, upon which marked with the letters ‘TW7’ I have signed my name

12. I say that due to ongoing concerns with his fitness, in 2014 the applicant was

referred by Commandant Brian Carley to Lt. Col. Ahmed, and I beg to refer to his

13. I say that, as the foregoing makes clear, the applicant had a long standing difficulty

with his personal fitness which he fully recognised. I further say that he was

warned that this could have an impact on his continued service in the Defence

Forces and (as he also recognised) he was given every opportunity to address his

(a) Additional time to train during working hours from the time he was

(b) Access to subject matter experts within the Defence Forces with regard to

from the 13th day of April to the 1st day of May, 2015. This course was

funded by the Defence Forces and was during work hours. The applicant lost

14. Following the decision of the Medical Board on the 15th day of April, 2015, the

applicant appealed by letter dated the 18th day of May, 2015. In doing so, it is

clear that the applicant was not disputing the merits of the decision or seeking to

suggest in any way that it was in error. On the contrary, he waived his entitlement

to make any legal or medical representations and said that he wholly understood

the issues with his BMI which, he acknowledged, had been a constant obstacle for

him and which he had failed to address notwithstanding a ‘significant amount of

time given’. In support of his appeal, the applicant instead committed to

addressing his BMI and outlined the efforts he was making to do so. In the

circumstances, he sought a seven-month suspension of the decision of the Medical

Board to enable him to follow through in those commitments. I beg to refer to a

copy of his letter upon which marked with the letters ‘TW8’ I have signed my name

66. The remainder of Commandant White’s affidavit deals with events subsequent to the

hearing of the Medical Board, which I have already summarised above.

67. Given its significance, it is worthwhile to quote an extract from the appraisal report of the

applicant dated 13th December, 2012, referred to in para. 10 of the affidavit of

“Lt. Whelan has not applied himself in any meaningful way (third year) to the

attainment of his degree. This is also replicated in his approach and attitude to

passing his fitness test. Lt. Whelan is approaching an obese state and despite

numerous HRFA’s he has yet to pass the basic level of fitness for an officer of his

Lt. Whelan is a very warm and congenial young man. However I feel that he may

have some underlying issues. He agrees with everything I and former

(Commandant Campion) OC USAC say about his performance and that he will

improve his situation yet unfortunately to date has been unable to advance. I

advised Lt. Whelan should his fitness state not improve, he may potentially be

The applicant then acknowledged the contents of this report and in his own handwriting

states: “I acknowledge and accept the above comments. I am determined to address the

issues outlined both physical and personal/academic and I am confident in progressing to

an acceptable standard of fitness, and completing my academic studies.”

68. Lieutenant Colonel Ahmad avers that he is licensed to practice medicine in Ireland as a

registered medical practitioner and that his qualifications include an MSc in Occupational

Health. Prior to joining the Defence Forces he had 14 years’ experience in the fields of

medical, surgical, accident and emergency and orthopaedic medicine. As of the date of

his affidavit his appointment was that of Senior Medical Officer, 2 Brigade, since 2008,

predominately carrying out occupational medical duties in Ireland and abroad.

69. Lieutenant Colonel Ahmad avers that he first saw the applicant in 2014, following a

referral by Commandant Carley and owing to ongoing concerns about the fitness of the

applicant. The applicant was physically examined and advised to address his obesity/BMI

issues as soon as possible in order to enable him to perform safely full regimental duties.

He avers that when he examined the applicant on 22nd May, 2014, his BMI was 38 and

he was accordingly deemed unfit for regimental duties. He avers that he discussed this

with the applicant and explained to him that if he did not reduce his BMI below 30 within

six to eight weeks, then he, Lt. Col. Ahmad would recommend the convening of a Medical

Board to assess his suitability for continued service in the Defence Forces.

70. He says that the applicant was given as much latitude as possible. When reviewed on

11th August, 2014, the applicant’s BMI had reduced to 36.7, and on 18th December,

2014, it had reduced to 36. Because his efforts over the previous two years had been

unsuccessful in reducing his BMI as required, and because he had also failed his fitness

tests as a result of which he had been unable to carry out his full regimental duties

(armed 24 hour regimental duties appropriate to his age/rank and appointment), Lt. Col.

Ahmad recommended that a Medical Board should be convened. He then addresses the

convening of the Medical Board, its decision and the appeal of the applicant, as well as

the subsequent submissions made by the applicant to General Cotter, who decided that

the applicant should be re-examined to determine if he had managed to continue the

progress that he made previously. Lt. Col. Ahmad avers that he examined the applicant

on 18th July, 2016, and found his weight to be 130.2kg and his BMI 37.6. He exhibits a

copy of his report. He avers that when he reviewed the applicant in July 2016 it was clear

that his situation had not improved since the Medical Board in April 2015; and while it

appeared from his record that he had made some improvements in the meantime, this

progress had been lost by the time of the re-examination of the applicant in July 2016.

Accordingly, he saw nothing to alter the classification of the Medical Board of April 2015.

71. The applicant rejects any suggestion by Colonel Kerr that he may not have been candid in

the information that he provided to Dr. Hogan. Furthermore, he rejects the suggestion of

Colonel Kerr that only those medical professionals who are trained in “military medicine”

are in a position to question the decision of the Director of the Medical Corps. Such an

approach, he submits, would operate to exclude the expertise of Dr. Hogan, one of the

foremost experts in occupational medicine in the country who performed a full medical

examination of the applicant, reviewed his medical file and read all the related Defence

72. The applicant rejects the suggestion that those with abnormal BMIs are limited in the

range of tasks that they can undertake in a military environment. This only occurred, in

the case of the applicant, because he was restricted by the Defence Forces in the

activities that he was permitted to undertake, and not because he was unable to

73. The applicant then proceeds to aver that he passed his fitness test in 2015, and also

attended an eight week course at Croi, an organisation set up to fight cardiac disease. He

avers that before, during and after that course it was made clear that he demonstrated

none of the precursors for cardiac disease, diabetes or other obesity related illnesses.

74. As regards the duty of care owed by the Defence Forces to the applicant, he avers that he

had no difficulty completing all tasks allotted to him on a day-to-day basis in the Defence

Forces which included allegedly “inappropriate taskings” such as the relatively physical

75. In reply to the affidavit of Commandant White, the applicant avers that he completed

fitness tests in August 2009 and August 2010, in full, to include the terrain walk. He also

avers that it was not correct to say that he had not completed a fitness test since 2010,

because he competed a fitness test in 2015. He takes issue with other matters referred

to by Commandant White, but they are not germane to this decision.

76. As regards the affidavit Lt. Col. Ahmad, the applicant avers that he joined the Defence

Forces with a BMI of 33, and was deemed physically fit and capable of entering an officer

cadetship with the Defence Forces with that BMI. Accordingly, he does not know where

Lt. Col. Ahmad derived a figure of BMI below 30, which he informed the applicant he

would have to achieve within six to eight weeks, at the time that he first examined the

77. Referring to the review of the applicant by Lt. Col. Ahmad in July 2016, he avers that he

informed Lt. Col. Ahmad that he had recently passed the Defence Forces’ fitness test, but

that Lt. Col. Ahmad replied by saying that even if the applicant ran across Europe the

next day it would not matter. Moreover, he referred to an exhibit of Lt. Col. Ahmad in

which it is stated that “chronic inability to perform regimental duties” and “chronic

inability to achieve required physical parameters to enable him to pass his fitness test”

were given as the reasons for the determination of the Medical Board. The applicant

argues that despite his subsequent passing of the fitness test, it appears that the decision

78. It is submitted that the applicant has not been provided with any adequately detailed

reasons why his health is such that his retirement is required. It is submitted that his

medical classification is irrational. The classification of the applicant of Grade X, for both

his constitution and his military fitness means that his fitness is lower than personnel with

marked impairments, disabilities or medical conditions (as regards his constitution) and

that his fitness was lower than personnel capable of only restricted duties. All of this

means that his physical condition is such that it is worse than someone suffering from a

marked impairment. At the very least the applicant must satisfy a grading of Grade 4,

and his MCC ignores the various expert reports that he has provided.

79. It is further submitted that the DMC Instruction for Medical Officers Number 4, Application

of Medical Classification System, a document drawn up to assist medical officers and

Medical Boards is unclear and contradictory. So, for example diabetics can be graded as

a constitution two or three, personnel who are carriers of hepatitis b or c or HIV or

personnel with ischemic heart disease can all be graded as constitution three or four,

whereas an officer who is overweight, such as the applicant, receives a lower

80. Colonel Kerr justified the classification of the applicant on the grounds that obesity may

lead to other conditions, but these other conditions themselves are given a grading three

81. It is submitted that the Defence Forces has adopted a rigid and unbending policy as

regards the applicant’s grading. In circumstances where the applicant has passed the

fitness test subsequent to his assessment by the Medical Board, it makes no sense that

his fitness grading remains at X. This suggests that the medical fitness finding is

82. While the applicant accepts that the Defence Forces may fix minimum standards for

fitness for members, it is submitted that the requirements cannot be irrational or

arbitrary. Reliance is placed on the evidence adduced by the applicant that use of BMI

cannot be conclusive as to the fitness of an individual and his ability to carry out his

functions. It is submitted that the respondent has relied on a statistical metric rather

than an analysis of the applicant’s own physical fitness. In doing so the respondents have

fettered their discretion. The applicant relies upon the decision of Finlay P. in Re: NA, a

solicitor , in which he stated: “What the authority must not do is refuse to listen at all”.

83. It was only during these proceedings, in the course of exchange of pleadings, that the

applicant became aware of para. 32 of DMC Instruction for Medical Officers Number 4,

which concludes with the statement that “personnel with a BMI in excess of 35, unless

justifiable by physiological state or body fat measurements will be investigated and

advised that failure to reduce their weight to give them a BMI of 35 or less within twelve

(12) months may lead to a classification of X.” This is very different to what was said to

the applicant by Lt. Col. Ahmad when he first examined the applicant on 22nd May, 2014,

when he advised the applicant that if he did not reduce his BMI to below 30 within the

next six to eight weeks a Medical Board would be convened. Had the applicant been

aware of the consequences of a BMI in excess of 35, and that he would have 12 months

within which to reduce it to 35 or below that measurement, he might well have addressed

his problems differently. Moreover, in July of 2015, the applicant was very close to

having a BMI of 35 and he could have made an appropriate submission to the Director of

the Medical Corps (Colonel Kerr) in the context of his appeal to Colonel Kerr. That said,

the applicant accepts that he was aware that if a member of the Defence Forces has a

BMI is in the range of 30 – 35 it is necessary to undergo a calliper test before completing

a fitness test and if it is over 35 a person will not be permitted to complete the fitness

84. The applicant did not know that the directions of Lt. Col. Ahmad were outside the scope of

the guidelines and had he known this he would have submitted to the Medical Board, and

later, to Colonel Kerr, that this was an unreasonable and irrational request. He should

have been told to ensure that he reduced his BMI from 38 to 35 over 12 months.

85. Moreover, Lt. Col. Ahmad’s directions were quite possibly not achievable at all, and

probably not without causing risk to the health of the applicant. In proposing such an

unrealistic target, Lt. Col. Ahmad made it less likely that the applicant could sustain the

86. It is submitted that the applicant does not even know for certain if the decision leading to

the recommendation for his dismissal was based upon his BMI, because he has not been

given all documentation leading up to the decision to recommend his dismissal. He has

been given his medical file only. The regulations themselves say that factors other than

BMI should be taken into account, but the applicant has been left with the impression that

87. Colonel Kerr, the Director of the Medical Corps, did not undertake any clinical examination

of the applicant before upholding the findings of the Medical Board. The applicant

submits that this is impermissible and relies upon the decision of Noonan J. in Bennett v.

Minister for Defence [2015] IEHC 23. In that case Noonan J. considered para. 66(2) of

DFR A12, which concerns the duty of a Medical Board when dealing with an appeal from a

medical officer. In that case, referring to Regulation 66(2) of the DFR which states:

“Routine classification or reclassification to any grade, other than Grade X, of members of

the Defence Forces shall be carried out by a medical officer of the Medical Corps. The

decision of the medical officer may be appealed to the appropriate command medical

officer who shall convene a Medical Board to classify or reclassify the officer or enlisted

“46. Thus, it appears to me that the Board must adopt the same approach to

classification as that required of a medical officer at first instance. It must assess

the officer or enlisted person concerned as he presents to the Board at the time he

47. If therefore at the time of examination by the medical officer, the person concerned

was suffering from some malady or did not possess the requisite level of fitness

which resulted in a particular grade being achieved, and by the time the Medical

Board was convened had recovered from such malady or improved his or her level

of fitness, it would be absurd to suggest that the Medical Board could not have

regard to those changed circumstances. This is also consistent with Regulation 67,

which provides that the President of the Medical Board may secure the opinion of a

medical officer specially qualified in a particular branch of medicine if necessary to

88. In that case Noonan J. quashed the decision of the Medical Board stating:

“It seems to me the Board fell into error in adopting this approach. Quite apart

from the issue of not examining the applicant, it was obliged to consider all the

evidence before it on the 23rd August, 2012 in order to classify the applicant and

not merely to conduct a paper exercise of determining, as an appellate court might,

whether the evidence before the lower tribunal sustained its conclusions.”

89. The applicant relies on this decision in support of his argument that there is an obligation

on medical officers in the Defence Forces to consider all the relevant evidence before

making a medical classification pursuant to DFR A12. In particular, it is submitted a

clinical examination is required to ensure that the classification made by a Medical Board

90. It is submitted that this flaw continued up the chain of command, and afflicted the

decisions made by Brigadier General Beary, Major General Cotter, and Vice-Admiral

Mellett, all of whom in their decisions, make explicit reference to the decision of Colonel

91. The applicant also queries the appeal procedures followed after the decision of Colonel

Kerr. He submits that the legal basis for the procedure is not clear. He refers to para.

74(2) of DFR A12, which I have quoted at para. 8 hereof. He submits that there are two

possible interpretations of this regulation, one of which is that the finding of medical

Grade X is unimpeachable and final. In that case the “ad hoc” appeal procedure provided

to the applicant was either beyond the legal powers of the Defence Forces or without legal

foundation. And in that case all of the appeals of the applicant to Generals Beary, Cotter

and Vice-Admiral Mellett were in vain because they did not have any legal power to

92. Alternatively, it is submitted that it is implicit as a matter of natural and constitutional

justice that there is an appeal process and that senior officers can overturn the findings of

the Medical Board. But if that is so, this does not accord with the approach adopted

either by General Cotter or Vice-Admiral Mellett who explicitly referred to para. 74(2) of

DFR A12 in their decisions and appear to consider that they were bound by that

93. If it is the case that the DFR fails to provide an appeal mechanism from the finding of the

Director of the Medical Corps, it is submitted that the DFR are unconstitutional and/or in

94. The applicant also submits that he has repeatedly requested all documentation that led to

the decision to recommend his discharge, but that he has still not received all such

documentation. While he was provided with documentation mainly comprising an extract

from the Defence Act, 1954, DFR A12 and A15, official communications to the applicant

himself, fitness results and the official record of the Medical Board hearing, the applicant

considers that there must be other documentation available that would assist the Court is

95. Finally, the applicant takes issue with the decision of Vice-Admiral Mellett, or at least that

part of the decision in which he says simply that he had taken into account the applicant’s

submissions, but without explaining why the submissions were rejected. It is submitted

that Vice-Admiral Mellett did not rationalise any of his conclusions, and as a matter of

natural justice the applicant is entitled to know why his submissions were rejected. The

applicant refers to a number of authorities regarding the adequacy of reasons given by

decision makers. Firstly, he refers to de Blacam in which he states:

“From the standpoint of the person affected, it is, however, just as important that

the decision maker ‘consider’ the case, in other words, that the decision maker

should think about it and then come to a reasoned conclusion based on what he has

heard. So far as the law is concerned, it is axiomatic that a decision maker must in

any case give proper consideration to it, and if it can be shown that, for whatever

reason, he has not done so, there is no question but that the decision (or at least

one adverse to the applicant) is liable to be quashed. The fact that the case law

says so little about the decision-maker’s obligation to consider probably reflects the

simple realities, first, that the obligation is self-evident, and secondly, that proof of

non-compliance with it is bound to be difficult. That said, one way of ensuring that

a decision maker has in fact considered the case is to insist that he give reasons for

96. The applicant also relies upon the decision of Murray CJ. in Meadows v. Minister for

Justice, Equality & Law Reform [2010] IESC 3, in which case the Chief Justice said, at

“93. An administrative decision affecting the rights and obligations of persons should at

least disclose the essential rationale on foot of which the decision is taken. That

rationale should be patent from the terms of the decision or capable of being

94. Unless that is so then the constitutional right of access to the Courts to have the

legality of an administrative decision judicially reviewed could be rendered either

pointless or so circumscribed as to be unacceptably ineffective.”

97. The applicant also refers to the decision of Hogan J. in AP v. Minister for Justice, Equality

“It is elementary law that a decision maker exercising statutory powers cannot

generally rely on material not disclosed to the applicant, at least absent exceptional

98. It is submitted that there were no such exceptional circumstances in this case, and that

the Chief of Staff has failed to give proper consideration to the submissions of the

applicant and to give reasons for his decision to reject those submissions. This is

particularly so where the applicant’s livelihood, reputation and profession is in the hands

of the Chief of Staff. For these reasons, it is submitted that the decision of the Chief of

Staff to recommend the applicant’s retirement should be quashed. It is appropriate to

observe however, that such relief is not actually sought by the applicant in these

99. Firstly, it is submitted that, declaratory relief aside, the only Order sought in these

proceedings is one against the Minister and that is an Order restraining the Minister

recommending the dismissal and/or retirement of the applicant pursuant to the provisions

of the Defence Forces’ Act, 1954. The applicant does not seek an Order of certiorari

quashing any of the decisions of which he complains. The Court is being asked, in effect,

to restrain the dismissal of the applicant in circumstances where it is not being asked to

quash the order of Vice-Admiral Mellett. Nonetheless, if the relief sought were granted,

100. It is further submitted that every decision taken by the applicant’s superiors, save for the

very last decision taken by Vice-Admiral Mellett, is beyond challenge (i.e. out of time for

challenge). It is further submitted that no evidence was led as to why these proceedings

were not brought sooner, and no excuse was advanced by the applicant in this regard.

101. All of this means that the declarations sought by the applicant are sought in a vacuum –

none of the decisions made by the applicant’s superiors will be quashed, but yet, if the

applicant obtains the relief that he seeks, the Minister will be precluded from acting on

102. It is submitted that if the applicant was dissatisfied with his medical grading, he should

have challenged it at the time. There is a review procedure available and in this regard

the respondent refers to para. 214 of Administrative Instruction A12 referred to at para. 7

and this is the procedure that the applicant followed in appealing the decision of the

103. It is submitted that the applicant had a lengthy and admitted history of medical problems

which he repeatedly committed, but failed to address. Given the continued failure of the

applicant to meet that Defence Forces’ fitness requirements, even if there were

procedural effects in the decision making process (which is denied) there is authority for

the proposition that relief should not be granted. It is submitted that the procedure

adopted was one which gave the applicant every opportunity not only to address his

fitness problems, but also to address the merits of the decision to discharge him. The

fact that the applicant did not do so, is not due to any procedural failure on the part of

the respondent, but is due to the continuous failure of the applicant to meet the standard

104. The respondent submits that the rules regarding medical classification, and the action to

be taken following such classification, identify two distinct stages. The first is under rule

66 which is the medical classification stage. At that point if any appeal from the Medical

Board fails, the medical classification becomes final. The next phase, under rule 72(2) is

concerned with ascertaining whether, notwithstanding the medical classification, his

superior officers up to the Chief of Staff are of the view that his medical classification does

not interfere with his ability to carry out his duties. Those superior officers are not

medically qualified and cannot alter the medical classification. It was open to the

applicant to challenge the decision of the Medical Board, or the rejection of his appeal by

the Medical Board Director by judicial review, but he failed to do so.

105. The respondent relies on the decision of the Supreme Court in Mellett v. Minister for

Defence [2014] IESC 33. In that case, the applicant sought judicial review on a number of

procedural grounds of the decision not to extend her service in the Defence Forces in view

of her repeated failure to meet the required standard of fitness. She claimed that she

had not been furnished with her extension of services file on which the decision had been

based, and that the refusal had been based on insufficient evidence, and in particular that

the respondent had not engaged with the recommendation of her immediate superior

officers to afford her further time to undergo the fitness test, which for a variety of

reasons she had been unable to take. In the Supreme Court, Fennelly J. held that any

procedural complaints made by the applicant could not obscure the central fact that she

had for several years been unable to attain the required level of fitness for services in the

“49. The nature of the appellant’s claim is necessarily narrowly constrained by the

circumstances of the case. The fact of central and overwhelming importance was

that the appellant had been unable to reach army fitness standards, a fact of which

she was fully aware. She had endeavoured to reach the required standards without

success. She had, as a result, been finally and definitively refused an extension of

service. There was no discretion to decide otherwise: there was no discretion to

extend her service. She was, at the best, in the anomalous position of a person

serving in the Defence Forces without engagement. It was not at all surprising that

the Defence Forces should not wish to retain personnel who were in this irregular

50. All the procedures must be looked at in the light of the underlying fact that the

appellant was, for several years, unable to reach the required standards and that

she was fully aware of that fact. She was aware of the fact that her service was not

extended for that reason. She was made aware of the intention to move to have

“The rules of natural justice do not go so far as to require the affected person to be

informed of all facts and details surrounding the decision. In the present case, the

appellant was herself, in any case, fully aware of the circumstances in which she

was unable to make herself fit. It was perfectly open to her to make any

107. The respondent also relies upon the decision of Dunne J. in Dunne v. Minister for Defence

[2011] IEHC 383. In that case, after her initial five-year term of engagement, the

applicant sought to extend her service in 2005 but failed the required fitness test. For a

variety of reasons beyond her control, she was unable to take the fitness test in 2006,

2007 and 2008. In 2008, she was overweight and had a BMI above the maximum

permitted, and she failed a further test in 2009 for the same reason, following which she

108. In her proceedings, the applicant claimed that the respondent had failed to provide her

with a tailored fitness programme and adequate assistance to achieve the necessary

reduction in her weight and BMI, and also that the Defence Forces did not comply with

the timelines in the Defence Forces’ training instructions, so as to permit her to be tested

again. In refusing the relief sought, Dunne J. stated that the training instructions were

guidelines only which could not curtail the discretion of a commanding officer not to

extend her service. Dunne J. also observed that judicial review is a discretionary relief

and that even if there had been a breach of fair procedures she would have refused the

relief sought in view of the continued failure of the applicant to pass the required fitness

“It is clear that the applicant is someone who has an exemplary record with the

Defence Forces and is also someone who is very anxious to remain a member of

the Defence Forces. However, when one examines all of the matters… it appears

that over a significant period of time, every possible opportunity was given to the

applicant by the Defence Forces to overcome the difficulty she had in relation to

weight, BMI and fitness. It has to be borne in mind that the first fitness test was

failed in 2005, and the applicant served without engagement as a result of the

failure to pass the annual fitness test until her discharge in August 2009, a period

in excess of four years. She was given every practical facility in terms of time to

facilitate her to pass the fitness test. At the end of the day, the applicant struggled

unsuccessfully to meet the necessary requirements to continue as a serving

member of the Defence Forces. In all of the circumstances outlined in this case, I

could not exercise my discretion to grant judicial review, even if I had been

satisfied that there was a breach of fair procedures or natural justice.”

109. These decisions, it is submitted, establish that the Defence Forces have a wide discretion

to discharge members who fail to attain the necessary standards of fitness.

110. In this case, it is submitted that the applicant was afforded an opportunity to make

representations as to why he should be discharged at each and every stage of the

process. Not only that, when he appealed the decision of the Medical Board to the

Director of the Medical Board (Colonel Kerr) he made it clear that he was not disputing

the merits of the decision of the Medical Board and deliberately chose not to make any

legal or medical representations, and instead sought a seven-month suspension to allow

Submissions of respondent in response to submissions of applicant

111. It is submitted by the applicant that the decision of the respondent failed to engage with

the merits of the submissions of the applicant and the medical reports on his behalf, in

112. In response to this, it is submitted on behalf of the respondent that, at each and every

stage of the process which resulted in his discharge, the applicant was afforded an

opportunity to make representations as to why he should not be discharged. Moreover,

for almost a year and a half after the initial decision of the Medical Board in April 2015,

the applicant made no suggestion that the decision was wrong on either legal or medical

113. The respondent went so far as to have the applicant re-examined in July 2016,

notwithstanding that there was no provision for such examination in the DFR. This was

done in recognition of the progress the applicant had made in 2015.

114. The detailed legal and medical submissions on behalf of the applicant in September 2016

were considered in the light of latitude that had been given to the applicant up to that

point in time. As explained by Colonel Kerr, the function of the medical classification

system is to identify individuals who may be at risk working in the military environment,

as defined by those working in the speciality area of military medicine. The MCC is not

rigid and inflexible. Provision is made to allow members with a high BMI who have

increased levels of cardiovascular fitness to remain in the Defence Forces, but the

applicant was not considered to be such an exceptional case. As Commandant White

avers, during all his service, the applicant had been unable to complete the full fitness

test which includes a 3.2km run. He only ever passed a modified form of the test and it

was this modified test that he passed in October 2015. He failed his annual fitness tests

115. The medical reports submitted on behalf of the applicant do not raise an issue of fact, but

rather a difference of medical opinion. If the applicant wished to challenge the medical

opinion of Colonel Kerr, he should have cross-examined Colonel Kerr for this purpose.

That this is necessary is established by a number of authorities, including Fitzgerald v.

Minister for Defence & Or. [2002] IESC 57, the decision of the High Court in Mellett v.

Minister for Defence [2013] IEHC 98 and also by the decision of Noonan J. in Bennett v.

Minister for Defence [2015] IEHC 23. In Fitzgerald, Fennelly J. stated, at pp. 13 and 14

“In my view, it is the designated experts and they alone that should perform the

function of assessing constitution grades for military personnel in accordance with

criteria provided within the ordained regulatory regime. It is, of course, the case

that decisions of Medical Boards are amenable to judicial review. However, I

venture to suggest that the hurdle of irrationality will be a high one.”

116. In the High Court decision in Mellett, Kearns P. commented, at p. 14:

“Although the applicant contested this evidence in her affidavits, it was at all times

open to her to cross-examine the makers of the affidavits stating to the opposite

effect that she had ample time and opportunity to get fit but this option was one

117. While the applicant submits that he did not receive sufficient reasons for his discharge

from the Defence Forces, it is submitted that the reasons were at all times known and

obvious to the applicant. This is apparent from the applicant’s own submissions

throughout the process. Moreover, he accepted these reasons, and sought time to

address the same. In Mellett a similar criticism was made of the reasons given in the

decision of the then Chief of Staff. In his decision in the High Court, Kearns P. stated, at

“So, although Major-General Boyle did not give reasons to explain why he did not

ultimately follow Brigadier General Aherne’s said recommendation, I am satisfied

that it was unnecessary for him to give a detailed exposition on why the

recommendation was not followed in circumstances where he had all the relevant

118. The respondent also relies upon the decision of Clarke J. (as he then was) in EMI Records

(Ireland) Limited v. Data Protection Commissioner [2013] 2 IR 669 where he stated the

“Where, for example, an adjudicator makes a decision after a process in which both

sides have made detailed submissions it may well, as Fennelly J. pointed out in

Mallak v. Minister for Justice [2012] IESC 59, [2012] 3 IR 297, be that the reasons

will be obvious by reference to the process which has led to the decision such that

neither of the parties could be in any reasonable doubt as to what the reasons

were. But it seems to me that, in a case where any party affected by a decision

could be any reasonable doubt as to what the reasons actually were, it must follow

119. In relation to the complaint of the applicant that he has not been furnished with all

documentation underlying the decision of the respondent, it is submitted that the

applicant sought his medical file by way of Freedom of Information request made on 13th

May, 2016, and that file was delivered to his solicitors on 20th October, 2016. He had

also received documentation in relation to his case from the military authorities on 12th

September, 2016. The respondent relies also on the letter of Ms. Howard, referred to

above, sent to the solicitors for the applicant just prior to the issue of these proceedings,

requesting the applicant to identify such documentation as he claims he has not received.

120. This issue also arose in Mellett and was addressed by Fennelly J. at para. 51 – 52 as

“51. So far as the EOS [extension of service] file was concerned, she was not entitled by

any statute of under the Defence Forces’ Regulations to access the file. There is no

general right under the rules of natural justice to access to the entire file of the

52. The rules of natural justice do not go so far as to require the affected person to be

informed of all the facts and details surrounding the decision. In the present case,

the appellant was herself, in any case, fully aware of the circumstances in which

she was unable to make herself fit. It was perfectly open to her to make any

submissions she thought relevant. In my view the complaint relates to a matter of

fine detail. I do not believe that the appellant was deprived on the benefit of fair

121. The respondent also denies that there has been a fixed and rigid policy with regard to the

medical classification of the applicant. The respondent points to the numerous

opportunities afforded to the applicant over the years to address his BMI and fitness

issues. Following upon the determination of the Medical Board, General Beary sought a

further opinion regarding the applicant’s condition from Commandant Clarke, which he

was not obliged to do. Then in July 2016 the applicant was afforded a further medical

examination, which is not provided for in the DFR, but which was nonetheless considered

122. Moreover, there is a discretion built into the DMC Instructions (which in themselves

provide non-binding guidance on the operation of the DFR relating to medical matters)

but the applicant was found to be an unsuitable candidate for the exercise of that

123. Finally, the respondent submits that it is incorrect to say that the DFR make no provision

for an adequate or proper system of appeal and/or regrading of medical status. The

Administrative Instruction A12 provides for making of representations to the Director of

the Medical Board who is obliged to consider all written representations arising out of the

reclassification of the medical status of the person concerned. That occurred in this case,

and Colonel Kerr upheld the decision of the Medical Board. Thereafter, the applicant was

afforded the opportunity to make representations to General Beary, Major-General Cotter

and Vice-Admiral Mellett. However, it is submitted that any medical classification can

only be made by suitably qualified medical practitioners, while the final decision to

discharge a member of the Defence Forces is made by more senior officers who are not

medically qualified. Those officers cannot regrade the medical classification previously

determined, given their lack of qualifications. Instead, what the DFR allow for is for non-

qualified officers to permit a member to remain in service, notwithstanding his/her

medical classification, and provided they are satisfied that whatever representations are

124. The respondent distinguishes the case of Bennett v. Minister for Defence on the facts. In

that case, the applicant’s medical classification had been based not on his current

condition at the time of his initial medical examination, but on his history of absenteeism

on medical grounds. When he appealed his classification to a Medical Board, the Board

felt itself bound by the findings of the initial medical examination, instead of conducting

an examination of its own. In this case, the Medical Board did conduct its own

examination, and its classification of the applicant was based on its findings and not on

his medical history. Furthermore, the investigation subsequently conducted by Colonel

Kerr occurred a very short time after the Medical Board examination, and in his

representations to Colonel Kerr, the applicant accepted the findings of the Medical Board

and asked for more time to address those findings. In his submissions to Colonel Kerr,

the applicant also set out the up-to-date position regarding his weight and his BMI.

125. It is appropriate to start with the reliefs claimed by the applicant. The applicant does not

seek Orders quashing either the decision of the Medical Board, or the subsequent decision

of the Director of the Medical Board, Colonel Kerr, affirming the decision of the Medical

Board. This is hardly surprising given that the proceedings were not issued until 6th

February, 2017, and those decisions were taken, in the case of the Medical Board on 15th

April, 2015, and in the case of the decision of Colonel Kerr, on 11th June, 2015.

Inevitably, this means that the medical classification of the applicant remains

126. The applicant seeks a declaration that insofar as the DFR fail to provide for an adequate

or proper system of appeal and/or regrading of medical status, the DFR are ultra vires

and contrary to the provisions of the Defence Act, 1954. However, the applicant does not

really explain what he means when he says that the DFR fail to provide for an adequate

or proper system of appeal. There is certainly room for improvement in the DFR, but it is

clear that persons affected by decisions of the Medical Board are entitled to make

representations to the Director of the Medical Board. This is apparent from Administrative

Instruction A12, para. 214 (J). Under para. 214 (J) the DMB is obliged to consider all

written representations made by or on behalf of an officer or enlisted soldier who was

reclassified by the Medical Board to “below Defence Forces’ medical standards” within 28

days of receipt of same, together with the Medical Board report and relevant medical

documents which were put before the Medical Board, and to complete a specified form

and to notify immediately the officer commanding the officer or enlisted soldier concerned

of his or her decision. This is a procedure that envisages a reversal of the decision of the

Medical Board, even if it does not say so expressly. However, it is clear that Colonel Kerr

considered that it was open to him to reverse the decision, if appropriate, because at the

end of para. 3 of his decision of 11th June, 2015, he states: “The patient presents no

medical evidence or case in his appeal which warrants a reversal of the Board’s opinion”.

The procedure therefore has the characteristics of an appeal, even if it is not expressly

127. In any case, this issue seems to be somewhat academic in circumstances where the

applicant in this case, while availing of the opportunity to make representations to Colonel

Kerr, did not seek to overturn the decision of the Medical Board. At para. 4 of this

decision, I set out paragraphs 4 and 11 from the applicant’s appeal to the Director of the

Medical Board dated 18th May, 2015. Other paragraphs are also relevant, and to retain

“3. I will not be including in this appeal representations from either legal or medical

bodies on my behalf, as I am entitled to do under DFR A12 Part 6 para. 74 as I

believe that the issue is resolvable and I accept personal responsibility for the

4. I wholly understand the issues with my consistently high BMI in both my personal,

professional and indeed medical status and furthermore I understand the potential

outcomes for my career of the classification “X” in light of the above circumstances.

The issue of my high BMI and difficulties with weight have been a constant obstacle

for me for the last number of years and despite a significant amount of time given I

5. My continued failure to significantly lower my weight/BMI over this period despite a

variety of approaches has been both a great hindrance and frustration to me

personally and professionally. I am aware of both the standards and appearance

expected of a young officer in the Defence Forces and I am keenly aware that in my

6. Notwithstanding the above situation and the indeed (sic) rationale behind my

medical classification I strongly believe in my ability following a new found

approach, resources and indeed attitude to overcome my longstanding weight

128. Apart from the appeal to Colonel Kerr as Director of the Medical Board, the applicant was

invited to make further representations to General Beary, his commanding officer. It is

not clear to me what process was being followed in inviting the applicant to make such

representations. The DFR, A12, para. 74(2) simply says that where a member on

classification or reclassification is found by a Medical Board and confirmed by the Director,

Medical Corps to be Grade X, he or she shall be regarded as being unfit for service with

the Defence Forces and his or her commanding officer shall initiate action towards

retirement, relinquishment of commission or discharge as the case may be. There is no

provision for an appeal or the making of representations at this point. The Administrative

Instruction A12 document at para. 214 (K) contains a statement that for further action on

the part of the commanding officer, “see administrative instruction part 10”. Perhaps

more procedures are set out in that instruction, but that was not opened or made

129. The same comments apply in relation to the subsequent representations which the

applicant was invited to make, first, to Major- General Cotter, and secondly, Vice-Admiral

Mellett. As each decision was made, the applicant was advised of his entitlement to make

representations up the chain of command arising out of that decision. It is unclear what

powers the officers up the chain of command had as regards the decision made by the

officer below, save only to the extent that there was no question of interfering with the

medical classification of the applicant after the decision of Colonel Kerr. Any decisions

thereafter could only relate to the decision to recommend the discharge of the applicant

from the Defence Forces, arising out of his medical classification.

130. The regulations do provide for some flexibility in that Regulation 74(3) provides that if the

person affected by the Grade X classification is employed in a capacity in which the

disability or disabilities which occasioned his or her being graded X does not interfere with

the efficient performance of his or her duties, his/her commanding officer may forward an

application for the retention of the person concerned in the Defence Forces, to the

adjutant General who, in the case of an officer, may recommend to the Minister for

Defence that such officer be not retired or be not required to relinquish his or her

131. It is clear that the applicant’s legal representatives were as puzzled by these procedures

as I am, because they addressed the issue in their written submissions. They submit that

para. 74(2) of the DFR is open to two interpretations, one being that a finding of medical

Grade X is indeed final and unimpeachable, in which case the procedures followed after

the determination of Colonel Kerr had no legal basis. This would mean that the

submissions and expert reports submitted by the applicant to senior officers were

submitted in vain and that neither of Generals Beary or Cotter nor Vice-Admiral Mellett

had any power to overturn the final finding of the Medical Board.

132. The alternative interpretation they argue for is that an appeal process is at least implicit

as a matter of natural and constitutional justice, and that senior officers can overturn the

findings of the Medical Board. I cannot agree with this submission. Firstly, none of those

officers have the medical competence to overturn the findings of the Medical Board.

Secondly, nowhere in Regulation 74 or in any of the other regulations is such a power,

expressly or implicitly, conferred on any person other than the Medical Board and the

Director of the Medical Board, following a review. There is some discretion reserved by

Regulation 74, which I have referred to above, i.e. that a member of the Defence Forces

may be retained where the disability giving rise to his grading of X does not interfere with

133. The applicant then further argues (but does not plead the same in exact terms) that

insofar as the regulations fail to provide an appeal mechanism from the finding of the

Director of Medical Corps, the regulations are unconstitutional and/or in breach of the

applicant’s right to fair procedures. This argument is reflected at para. D (11) of the

statement of grounds whereby the applicant seeks a declaration that the respondent

breached the applicant’s rights in failing to provide a means of overturning the Director of

Medical Corps classification of the applicant. While seeking a declaration to this effect,

they do not advance any legal arguments or cite any authorities to support a claim for

134. The Director of the Medical Board, Colonel Kerr, made his decision based upon (1) the

decision of the Medical Board and (2) the representations made by the applicant, in which

he accepted the medical classification and asked for further time to address the same. It

is inconceivable that a person could be afforded such relief having in the first place

accepted the decision of the Medical Board. Moreover, this acceptance persisted right up

to the point that the applicant made submissions to Vice-Admiral Mellett

135. At para. D (2) of the statement of grounds the applicant seeks a declaration that the

failure by the respondent to provide sufficient reasons for the decision to dismiss the

applicant breached his entitlement to fair procedures and constituted a breach of

statutory duty, and/or was ultra vires and/or breached the Defence Forces’ Regulations.

To begin with, no breaches of statutory duty of the DFR are particularised. The decision

to dismiss the applicant from the Defence Forces followed upon the decision of the

Medical Board to reclassify the medical grading of the applicant. Once a person has been

designated Grade X, the consequences are clearly set out in Regulation 74 of the DFR.

The options available are limited. The dismissal of the applicant from the Defence Forces

flowed as a consequence of his medical classification and as such, the reason for his

136. The applicant claims that his entitlement to fair procedures has been breached under a

number of headings. He is in particular aggrieved that the respondent did not address his

detailed submissions or engage with the medical reports procured by the applicant after

the decision of Vice-Admiral Mellett. (Paras. D (4) and D (5) of the statement of grounds).

Only the former can relate to the decision of Vice-Admiral Mellett, as the latter were

submitted after his decision but before addressing that, it is of some importance to

consider what went before the decision of Vice-Admiral Mellett. The applicant had the

opportunity to make any submissions that he wished to make to the Medical Board itself,

and he made no medical representations to that Board, and instead sought time to

address his acknowledged weight difficulties and BMI. Then, on appeal to Colonel Kerr,

and at a time when he was fully aware that his medical classification, in relation to

constitution and fitness, had been changed to X in each case, he took the same approach.

In other words, he acquiesced in his medical classification on two occasions. None of this

could be said to be a denial of fair procedures. The applicant persisted with this approach

in his representations to General Beary and again in his representations to Major-General

Cotter. There is no absence of fair procedures on the part of the respondent in any of

this. On the contrary, it appears the respondent afforded the applicant the opportunity to

make representations up the chain of command that are not provided for in the DFR.

137. All of that said, in circumstances where Commandant Murray and Commandant Clarke

both recommended to General Beary that the applicant be afforded the opportunity to

continue his career in the Defence Forces, it would have been preferable for General

Beary to explain his reasons for not accepting those recommendations. He might also

have explained why he did not consider that the fact that the applicant had passed the

fitness test (or, more accurately, the qualified fitness test) did not warrant a decision

favourable to the applicant. Likewise, it would have been better had Major-General

Cotter said more than that he had “taken into account” the appellant’s appeal to him, and

138. But it is clear from the authorities relied upon by the respondent in relation to the giving

of reasons that this is not always necessary. As Clarke J. (as he then was) observed in

EMI Records (Ireland) Limited v. Data Protection Commissioner : “[it may well be]… that

the reasons will be obvious by reference to the process which has led to the decision such

that neither of the parties could be in any reasonable doubt as to what the reasons were.”

Taken together with the decision of Kearns P. in his decision in Mellett, where he said it

was unnecessary for detailed reasons to be provided in circumstances where the decision

maker had all the relevant material and thus could make a properly informed decision.

139. Insofar as no explanation is given as to why Vice-Admiral Mellett did not accept the

medical opinions put forward on behalf of the appellant, this is something of a red

herring. These medical reports were provided long after the applicant had accepted that

both his weight and BMI posed a risk to his career in the Defence Forces. They were

presented long after the decisions of both the Medical Board and Colonel Kerr and well

outside the time within which applications to quash those decisions could be advanced.

Most significantly of all, the medical reports were submitted after Vice-Admiral Mellett had

made his decision. Furthermore, it was not open to Vice-Admiral Mellett to alter the

medical classification of the applicant on foot of these reports, or otherwise, because he

has neither the jurisdiction nor the competence to do so. It seems to me that the extent

of the competence of Vice-Admiral Mellett at this point was to decide whether or not to

affirm the recommendation to the Minister that the applicant should be discharged from

140. A good deal of the argument at the hearing of these proceedings was devoted to the

rationality or otherwise of the applicant’s medical classification and his fitness to

discharge his duties. No doubt this was done in the hope of persuading the Court that the

decisions of the Medical Board and Colonel Kerr were irrational, but those decisions are

not impugned by these proceedings other than in a general way by pleading that the

respondent failed to engage with the medical reports provided by the applicant on the

issues of his medical constitution and fitness. Moreover, it is clear from the authorities

relied upon by the respondent that where there is a difference of medical opinion, this is

not something that can be decided by a court on affidavit evidence, and it is necessary for

the person raising the issue to cross-examine the witness or witnesses who disagree with

141. It is not difficult at all to understand the frustration that the applicant must have felt

when, having passed the fitness test, his medical classification remained the same. It

would certainly seem rational that his fitness classification should have been elevated

above Grade X. But it would not follow from that his constitution grading of X would be

altered and a grade of X in either category gives rise to the possibility of his discharge

from the Defence Forces. It also appears from the affidavit of Commandant White that

the fitness test that the applicant passed in 2015 was a modified fitness test i.e. he

partook of a swim rather than a run because of an inability to partake in the latter.

142. The applicant presented a very persuasive case to the effect that neither his constitution

nor his fitness had impeded his duties in the Defence Forces and that the medical

classification of X was illogical and irrational, having regard in particular to medical

classifications 3 and 4. But constitution and fitness can readily be seen to fall outside the

medical issues addressed by Grades 3 and 4. If a person does not have either or both of

the constitution and fitness required of a professional soldier then how can he or she

expect to remain in the service of the Defence Forces? To the extent that others with

specific disabilities may be allowed to do so that is a concession that may appear

anomalous when set against the draconian forced discharge of a person such as the

applicant from the Defence Forces, but the anomaly does not of itself mean that the

consequence flowing from a gradation of X is irrational or illogical. But in any case, this is

something of an aside, because the regulations provide as they do, and while the

applicant also seeks a declaration that they are ultra vires, no legal authority has been

cited for this Court even to consider the making of such a declaration.

143. I quoted extensively above from the affidavit of Commandant White because I believe

that the passages quoted, more than anything else in these proceedings, make it clear

why the applicant cannot succeed. While the applicant was allowed into the Defence

Forces with a BMI of 33, it was made plain to him from an early stage, and acknowledged

by him, that his condition and fitness were problematic and could result in his discharge

from the Defence Forces if not satisfactorily addressed. He was quite literally allowed

years to address these matters, and he acknowledged that he had to do so, but

unfortunately it proved to be too difficult for him. It is particularly unfortunate in the light

of all the other very positive information regarding the applicant both as a person and as

an officer. The extracts that I have quoted from the affidavit of Commandant White could

lead no objective observer in any doubt that (a) the applicant, from a very early stage of

his Defence Forces’ career, was made aware of the seriousness of the issues raised by his

BMI and weight and (b) that the applicant was afforded numerous opportunities to

address these issues over several years, (c) that the applicant had failed to pass all bar

two of his annual fitness tests in the Defence Forces, and that those tests that he had

passed were modified tests because he could not partake in the run and (d) that his

condition was such that it had to some extent at least impaired his ability to discharge his

144. I have considered whether or not the apparent failure on the part of the respondent to

comply with paragraph 32 of DMC instruction for Medical Officers number 4 is of sufficient

significance to influence the outcome of this decision. That paragraph requires that

personnel who are found to have a BMI in excess of 35 should be advised that failure to

reduce their weight to give them a BMI of 35 or less within 12 months may lead to a

classification of X, unless the BMI is justifiable by physiological state or body fat

measurements. This issue was not pleaded by the applicant because he did not become

aware of it until this instruction was exhibited in the affidavit of Col. Kerr in the course of

the proceedings. I have described it as an “apparent failure” because it is not dealt with in

the pleadings but at the hearing of these proceedings the Respondent did not deny that

there had been a failure to so advise the applicant. On balance, I have taken the view

that the failure to comply with this instruction is not of sufficient significance to alter the

outcome of these proceedings because of the knowledge that the applicant at all times

had as to the significance of his weight and BMI for his future in the Defence Forces.

145. Moreover, the chief relevance of this issue dates back to the time when Lt. Col. Ahmad

first examined the applicant on 22nd May, 2014, when he advised the applicant that he

needed to reduce his BMI to 30 within a period of 6 to 8 weeks. That may well have been

an unrealistic target, but the applicant was again allowed latitude and Lt. Col. Ahmad did

not ask for the convening of a medical board until January 2015. Moreover, even if the

target was unrealistic, the applicant clearly responded to the pressure and had reduced

his BMI to 36 by 18th December, 2014, but that is still above the limit of 35 set by

paragraph 32 of the DMC instruction. For these reasons, and also because the applicant

fully accepted the decision of the Medical Board, I do not think that this issue can serve to

146. Finally, in relation to the applicant’s complaint that he was not given all documentation

giving rise to the recommendation for his discharge, this Court was not given copies of

the requests for that documentation, and there seems to be a dispute between the parties

as to what was requested and what was provided. This dispute appears to have finished

with the last letter sent on behalf of the respondent to the solicitors for the applicant

enquiring as to what documentation it was claimed had not been delivered. No reply was

given to this letter, and nor was this expanded upon on behalf of the applicant at the trial

of these proceedings. In these circumstances, it is impossible for this Court to adjudicate

upon whether or not relevant material in the possession of the respondent was not

delivered to the applicant or his solicitors. Moreover, this is, I think, a matter that would

more appropriately have been dealt with by discovery. In any case I think that the

authorities relied upon by the respondent in relation to the disclosure of materials make it

plain that there is no general entitlement under the rules of natural justice to access the

147. Notwithstanding the very significant sympathies I feel for the applicant, I regret that he

has not established any basis upon which this Court could grant any of the declarations

sought and the proceedings must be dismissed.

Result: Proceedings were dismissed.

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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Whelan v Minister for Defence [2019] IEHC 921 (27 November 2019) URL: http://www.bailii.org/ie/cases/IEHC/2019/2019IEHC921.html Cite as: [2019] IEHC 921

High Court of Ireland Decisions