Man loses challenge against dismissal from Permanent Defence Forces after failing random drug test

About this case:

• Judgment:
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Mr Christopher Maher had been dismissed following a controlled random drug test, which he failed after the two samples he gave tested positive for cocaine.

The test was followed by a number of hearings, in which Mr Maher proclaimed his innocence but said he could not account for the test results. He offered to undergo targeted drug testing on a voluntary basis to prove that he is not a habitual drug user.

However, the commanding officer found that his explanations were not credible, and recommended his discharge.

Mr Maher appealed this to the General Officer Commanding, at which time he obtained an expert, Mr Atha, and asked for access to the laboratory file.

Mr Atha made criticisms of the method of analysis of the samples and drew attention to the absence of any evidence of creatinine levels. He also submitted that the positive test result could have resulted from malicious exposure through spiked food or drink.

Following his submission, a response email was sent by the testing company with regards to the creatinine levels, in which it was stated that although the test had been carried out, creatinine levels were normal, and even if they hadn’t been, it would not have resulted in a false positive result.

Mr Maher went on to lose his appeal both to an Appeal Officer and to the General Officer Commanding, leading to his discharge from the forces.

He sought to bring a judicial review against the Minister for Defence, the Attorney General and Ireland.

On behalf of Mr Maher, Mr Maguire SC made three main arguments.

First, that Mr Maher’s offer to be subjected to targeted drug taking had not been considered by the decision maker. He cited Rawson v The Minister for Defence IESC 26 and Mallak v The Minister for Justice, Equality and Law Reform 3 IR 297 as demonstrating that it is necessary to give reasons which show that the relevant question was addressed by the decision maker.

Second, he highlighted the alleged failure of the respondent to afford the applicant an opportunity of responding to the email sent by the testing company.

Third, Mr. Atha had clearly raised two points of concern in relation to the test results. The first was regarding the creatinine level and the second the alleged over reporting issue which was of crucial importance having regard to the marginal positive test results on the A sample. The latter issue was never dealt with.

The respondent submitted that the positive test result was on objective test, that the suggestion that the applicants offer of targeted drug testing had been ignored was misconceived, that more time to respond to the email had not been sought, and that Mr Atha himself had made clear that all the issues except the creatinine test had been resolved, and that his submission with regards to the creatinine test had been dismissed as incorrect.

On the applicant’s contention that the second technical issue raised by Mr. Atha about over reporting had never been addressed, in fact this is simply wrong as the email chain demonstrates.

Mr Justice Noonan outlined the relevant regulatory statutory framework as being that contained within Regulation 8 (B) of theDefence Force Regulations A7 made by the Minister for Defence pursuant to s. 26 of the Defence Act 1954, and Chapter 3 of Defence Forces Administrative Instruction A7.

Considering the applicant’s submissions, he noted that in the case of Rawson, it was found that “the decision maker must address the correct question or questions which need to be answered in order to exercise the relevant power and in so doing must have regard to any necessary factors properly taken into account and must also exclude any considerations not permitted”.

That case concerned a submission that marijuana had been ingested accidentally through passive smoking, and the decision makers had failed to address whether a reasonable doubt existed that the individual had taken the substance inadvertently, as required by the regulation in that case.

However, in the present case the Judge noted that “there were only three possible outcomes following a positive drugs test. The relevant decision maker had to opt for one. In doing so, the decision maker by necessary inference considered that the other two were not appropriate. The reasons given must be assumed to underlie the choice of option. They must equally be assumed to explain why the other options were not chosen. I think it is somewhat unreal to suggest that each option had to be analysed and an explanation given as to why it was not being chosen.”

Further, the recommendations made by the appeal officer and the decision of the General Officer Commanding explicitly referred to the applicant’s submissions.

It was clear that in Rawson, the regulations required a consideration of whether the drug had been ingested innocently or inadvertently. This was not the situation in the current case.

In relation to being given time to respond to the email, the Judge noted that it was “remarkable that he never complained of that fact in the ensuing four months or so when a final decision was made by the Deputy Chief of Staff to reject his appeal”.

The Judge was therefore satisfied that there was no substance on this point.

In relation to the final argument about unresolved technical issues, it was noted that the creatinine levels had been checked, following Mr Atha’s raising of concerns, and it had been made clear that Mr Atha’s analysis was incorrect.

The Judge found that this occurrence was now being portrayed as a failure to deal with an important scientific issue, and was even being painted as a case of negligence or wilful falsehood.

These were described as “extraordinary allegations” made all the more surprising as he applicant did not trouble to bring them to anyone’s attention prior to the institution of the proceedings or indeed to obtain an affidavit from Mr. Atha standing over them.

The Judge concluded that: “The plain fact of the matter is that the applicant’s explanation was found not to be credible. There was nothing irrational or unreasonable about this in my view. Nor was there a failure to have regard to any matters that ought to have been considered. I can identify no unfairness in the procedures to which the applicant was subjected.”

The application was therefore dismissed.