High Court of Ireland Decisions

1. This case raises some important questions concerning the powers of the Medical Council under Part V of the Medical Practitioners Act, 1978. The answers to these questions have implications for every member of the medical profession who may be the subject of an investigation on foot of a complaint of professional misconduct or an allegation of unfitness to practice medicine.

2. The Applicant (Dr. Casey) is a registered Medical Practitioner. On the 8th June, 1997 a former patient of his made a complaint to the Medical Council (the Council) concerning a consultation which she had with him over seven months beforehand. On foot of that complaint Dr. Casey was served with a Notice of Intention to hold an enquiry under Part V of the Medical Practitioners Act, 1978 (the Act).

3. Five allegations of professional misconduct were made against him. It was alleged that he:

4. These charges were enquired into by the Fitness to Practise Committee (the Committee) of the Council over two days on the 27th May and 28th October, 1998. It was a sworn enquiry.

5. In due course the Fitness to Practise Committee gave its decision. It reads as follows:-

6. Subsequent to the above decision Dr. Casey received a letter from the Council dated the 10th of November 1998. The letter referred to the hearing before and the findings of the Committee. It invited him to attend before the Council at its meeting of the 20th of November 1998 so as to afford him the opportunity to make a submission to the Council before it would reach a decision in accordance with Part V of the Act. He was told that he might be represented by a Solicitor and/or Counsel in the matter or if he wished he could furnish a written submission for consideration by the Council. Dr. Casey accepted the invitation to be represented by Solicitor and Counsel. Submissions were made by Counsel on his behalf to the effect that having being cleared of the charges of professional misconduct by the Committee the Council had no power to impose any sanctions upon him or to invoke any of the powers contained in Sections 46, 47 or 48 of the Act. It was further submitted that even if the Act did permit the Council to take any steps under those sections to do so would effectively reverse the finding of the Committee which had been in Dr. Casey's favour.

7. Following these submissions the Council adjourned to consider its decision. It reconvened, read its findings and decisions to Dr. Casey and indicated they would be forwarded to him in writing in accordance with the requirements of the Act. The findings of the Council were as follows:-

8. Dr. Casey did not exercise his statutory entitlement to apply to this Court concerning this decision of the Council. Rather, on the 21st December 1998, he applied to Geoghegan J. for leave to commence these judicial review proceedings. Leave was given.

9. The Applicant seeks an Order of Certiorari to quash the decision and determination of the Medical Council made on the 11th December 1998. He also seeks a declaration that that decision was ultra vires, void and of no effect. He furthermore seeks an Injunction restraining the Medical Council from making public any of the proceedings of the enquiry conducted by the Committee, the findings of that Committee and the decision of the Council.

10. Although a large number of grounds were set forth in the statement grounding the application for judicial review they really amount to no more than two. The first is that the Council has no power to do what it purported to do by its decision given on the 11th December 1998 and consequently that decision is ultra vires and void. The second ground advanced in the statement grounding the application before Geoghegan J. was that the decision of the Council of the 11th December 1998 was unreasonable, irrational and contrary to the evidence adduced before the enquiry held by the Committee. During the course of the hearing before me this second ground was abandoned.

11. As the argument to a great extent revolves around the statutory provisions of Part V of the Act, I propose to set out the relevant provisions before proceeding to deal with the arguments raised in relation thereto.

12. The Act is divided up into six parts and contains four schedules. Its long title describes it as "an Act to provide for the setting up of a Council to be known as ... The Medical Council which shall provide for the registration and control of persons engaged in the practice of medicine and to provide for other matters relating to the practice of medicine and the persons engaged in such practice ..."

13. Part V commences with Section 45 of the Act. It provides that the Council or any person may apply to the Committee (which is established under Section 13 of the Act) for an inquiry into the conduct of a registered Medical Practitioner. Such an inquiry can be sought on the grounds of the Practitioner's alleged professional misconduct or his fitness to engage in the practice of medicine by reason of physical or mental disability. Such an application is, subject to the provisions of the Act, required to be considered by the Committee.

14. Subsection (2) of Section 45 provides that if the Committee, after consideration of such an application, is of opinion that there is not sufficient cause to warrant the holding of an inquiry it must inform the Council of that fact. The Council must then consider the matter and may decide that no further action shall be taken in relation to it. If it does so, it must inform the Committee and the Applicant. Alternatively, it may direct the Committee to hold an inquiry into the matter in accordance with the provisions of that section.

15. Subsection (3) deals with the situation where, after consideration of an application, the Committee is either of opinion that there is a prima facie case for holding such an inquiry or alternatively has been given a direction by the Council to hold the inquiry. In such circumstances the Committee is obliged to hold the inquiry and on its completion the following applies pursuant to subsection (3)(c). It provides as follows:-

16. Subsection (5) of Section 45 provides as follows:-

17. When the Council makes such a decision the person to whom it relates may within a period of 21 days beginning on the date of the decision apply to this Court for cancellation of the decision. If he does so this Court may either cancel the decision, or, declare that it was proper for the Council to make a decision under this section in relation to such person and either direct the Council to erase his name from the register or direct that during a specified period registration of his name in the register shall not have effect. When, however, the person to which a decision of the Council relates does not, within the specified period, apply to the High Court for cancellation of the decision the Council may apply ex parte for confirmation of the decision. If it so applies, this Court, on the hearing of the application shall, unless it sees good reason to the contrary, declare accordingly and either direct the Council to erase the name of the person from the register or direct that during a specified period registration of his name in that register shall not have effect.

18. Subsection (4) provides that if a person to whom a decision of the Council under this section relates does not within a period of 21 days apply to the High Court then the Council may do so ex parte with a view to obtaining confirmation of its decision.

19. The only other statutory provision contained in Part V of the Act which has any bearing on the matters that I have to decide in this case is Section 51. That section enables the Council if it is satisfied that it is in the public interest so to do, to apply to the High Court for an order in relation to any person registered in any register maintained under the Act that, during the period specified in the order, registration of that person's name in that register shall not have effect. This Court is given jurisdiction upon such an application to make such interim or interlocutory orders as it considers appropriate.

20. It is clear from its terms that in making the decision which it did on the 11th December 1998 the Council purported to act pursuant to the provisions of Sections 47 and 48 of the Act. Dr. Casey says that in so doing it acted ultra vires the powers conferred under those sections in circumstances where he had been found not guilty of professional misconduct. He says that in the absence of a finding by the Committee of professional misconduct there is no power to do any of the things which the Council purported to do by its decision of the 11th December 1998. By doing so he contends the Council is purporting to reverse the finding of the Committee that the Applicant was not guilty of professional misconduct. In effect, he says this is to impose a finding of professional misconduct in circumstances where the Committee having heard all of the evidence and having had an opportunity to assess the credibility of witnesses and the weight to be attached to their evidence found Dr. Casey not guilty of professional misconduct. He contends that in these circumstances the only entitlement which the Council has under the Act is to receive the report of the Committee. He furthermore alleges that the Council acted ultra vires in "purporting to consider publication of its decision when it is expressly prohibited from so doing in the absence of the consent of the Applicant, which was not given, by virtue of Section 45 subsection 5 of the Act". Dr. Casey furthermore contends that the Council in purporting to give reasons for its decision relied upon ones which were neither proper nor valid ones which would justify the invocation of Sections 47 and 48 of the Act. Finally, he says that the imposition of the conditions on him means that compliance can only be enforced by erasure or suspension from the register and the power of the Council to erase or suspend is contingent upon a finding of professional misconduct by the Committee.

21. The Council denies all of the contentions which are put forward by Dr. Casey. It says that it gave careful consideration to the submissions which were made on his behalf to the effect that in the absence of a finding of professional misconduct by the Committee the Council had no power to act pursuant to the provisions of Sections 47 and 48. Having so considered the matter, however, it came to the conclusion that it was not only entitled to but ought to invoke such powers. It did so because of the concern of the Committee and the Council about aspects of Dr. Casey's care for patients having regard to the evidence which was presented to the Committee. It contends that by doing as it did, it is not reversing a finding made in Dr. Casey's favour by the Committee. It says that it does not nor has it ever sought to erase or suspend the registration from the register of any medical practitioner unless there is first a determination of either professional misconduct or unfitness to engage in the practice of medicine. In the course of the Affidavit of Professor Gerard Bury the current President of the Council he says:-

22. He goes on to point out that even in circumstances where Section 47 is utilised by the Council any conditions which it seeks to attach to the retention of a Doctor's name on the Register cannot be attached unless and until the matter is considered by the High Court. Apart from the power to publish the finding of the Committee or the decision of the Council and the power under Section 48 to advise, admonish or censure a medical practitioner, neither the Committee nor the Council are invested with any powers which are final and binding on a medical practitioner whose conduct has been investigated. This is so because in every other case there must be an invocation of the jurisdiction of this Court either by the Doctor affected or by the Medical Council before such a decision becomes final and binding.

23. In the event of a hearing taking place concerning what the Council proposes to do under Section 47 of the Act it contends that at that hearing it would be crystal clear that no determination of professional misconduct had been made against Dr. Casey nor was any finding of unfitness to practise made either.

24. Finally, Professor Bury says:-

25. Both sides referred to two decisions of Finlay P. One was given in the case of In re M., a Doctor [1984] I.R. 479 and the other in M. v. The Medical Council and the Attorney General [1984[ I.R. 485. The first case was decided on the 8th of March 1984 and the second on the 21st May 1984 and both relate to the same Doctor.

26. In the first case Finlay P had to determine a preliminary issue. The Council had decided that Dr. M.'s name should be erased from the general register of medical practitioners. He brought a petition pursuant to Section 46 of the Act seeking an Order under that section cancelling that decision. The decision of the Council had been preceded by an inquiry duly held by the Fitness to Practice Committee. Dr. M. attended and was represented by Counsel and Solicitor at that hearing. The Committee duly reported to the Council. The Council considered the Committee's report. The Council decided that Dr. M.'s name should be erased from the general register of medical practitioners. Dr. M. contended that although he was heard and represented at the inquiry before the Committee he was not afforded an opportunity to be heard by the Council prior to its decision. He therefore said that the procedures followed were wanting in natural justice. Accordingly he said, as a preliminary matter and before any inquiry by the High Court into the merits of his case, the decision of the Council should be held to be invalid and of no effect. Finlay P. determined that issue against Dr. M. He concluded that the absence of a right on the part of the practitioner to be heard by the Council before it had reached a decision on the report of the Committee did not constitute any unfair procedure or want of natural justice. In coming to that conclusion he examined the provisions of Part V of the Act and the arguments that had been made by both sides. It is not necessary for me to rehearse them here in any detail. In the course of his review of the relevant statutory provisions Finlay P. said at page 481:-

27. A considerable emphasis is laid by Counsel for the Applicant upon the statement of Finlay P. in the first clause of the sentence which I have emphasised which precedes and qualifies each of the matters which he addresses under paragraphs (a) through (d) in the quotation above. This quotation from his judgment is relied upon as demonstrating the correctness of the Applicant's case to the effect that before a power can be exercised under Section 47 of the Act there must be a finding by the Committee that the medical practitioner has been guilty of professional misconduct.

28. A few months later Finlay P. decided the second of the two cases. On this occasion the applicant raised an issue in his Section 46 application concerning the constitutionality of the provisions of Sections 45 and 46 of the Act. Before the Section 46 application was heard on the merits he sought a declaration that Sections 45 and 46 of the Act were invalid having regard to the provisions of the Constitution and that consequently the decision of the Council was null and void. His action was dismissed. In the course of his judgment Finlay P. again considered the provisions of the Act of 1978. On this occasion when considering the provisions of Section 47 he said:-

29. It is clear that the words which I have emphasised in this analysis of the statutory provisions in question do not sit comfortably with the views expressed in the earlier M decision and which I have already quoted. I will return to this aspect of the matter later.

30. For the sake of completeness I should recite certain of the findings made by Finlay P. in the second M case which also have a bearing upon what I have to consider in this case. He said at page 497:-

31. Finally, at page 500 of the judgment he said:-

32. This is the principal question which has to be answered in this application.

33. The first thing to be noted is that neither Sections 47 nor 48 in their terms require as a condition precedent to their being acted upon by the Council a finding adverse to a medical practitioner who has been enquired into and reported upon by the Committee. Under the express terms of each section all that is required in order to trigger the entitlement of the Council to utilise them is that there should have been an inquiry held and a report made by the Committee pursuant to Section 45 of the Act. Once that is done then, under the express terms of Sections 47 and 48, the Council is entitled under Section 47 to attach conditions to the retention of the person on the register or under Section 48 to advise, admonish or censure such person. I am of the view, therefore, that the express words of Sections 47 and 48 do not support the contention made by Dr. Casey in the present case. The argument put forward by him would require me to read into both sections words which the Legislature has not seen fit to interpose and where, for reasons which I will come to in a moment, there would be neither necessity nor entitlement so to do. The words which would have to be read into both sections would be to the effect that the sections would only operate following a guilty finding being made. There are, in my view, sound reasons for not reading in such words.

34. First, Sections 47 and 48 should be contrasted with the provisions of Section 46 of the Act. There the Legislature, in the immediately preceding section, expressly provides that before the powers of the Council which are contained in section 46 can be exercised there must be a finding by the Committee of professional misconduct or unfitness to engage in the practice of medicine because of physical or mental disability. It is in my view inconceivable that if the intent of Parliament was to the effect that Sections 47 and 48 could only be operated in similar circumstances to those in which Section 46 may be operated it would not have expressly said so. This is in my view a strong contra-indication in respect of the argument advanced on behalf of Dr. Casey.

35. In so far as reliance is placed upon the statement from which I have quoted in the case of In re M., a Doctor , I am satisfied that in stating as he did in the paragraph numbered four which I have reproduced in its entirety with relevant emphasis Finlay P. did not accurately describe the statutory provisions. There was no basis for indicating that the powers under Section 47 of the Act can only be operated in circumstances where the Committee has found the Practitioner to be guilty of professional misconduct. Not merely is that statement inconsistent with the express provisions of the Act but it is also inconsistent with the views expressed by the same Judge in the later decision in M. v. The Medical Council and the Attorney General . There, in my view, he accurately set forth the position in the passage which I have already quoted with appropriate emphasis. He rightly points out that the powers given to the Council under Section 47 and Section 48 may be operated irrespective of the precise findings of the inquiry and report from the Committee.

36. Of these two views expressed by Finlay P. I propose to follow the later of them since they are wholly consistent with the express terms of the statutory provisions. I do not regard the statement contained in the first M case as being an accurate representation of the Act or of the will of Parliament.

37. Secondly, there is a further reason which fortifies the view which I take of the provisions of Sections 47 and 48. It is quite clear that under the provisions of Section 45 (3) the Committee is obliged to embody its findings in a report which it makes to the Council specifying not merely the nature of the application and the evidence laid before it but also "any other matters in relation to the registered medical practitioner which it may think fit to report ..." By requiring the Committee to include this additional material the Legislature clearly envisaged that the Committee should be empowered and, indeed, obliged to call the attention of the Council to matters which, although not pertinent to the question of misconduct or fitness to practise by reason of physical or mental disability, nonetheless have implications for the protection of the public and the public interest. This requirement in Section 45(3)(c) and the interrelationship between that and Sections 46, 47 and 48 and the express terms of each of these sections make it clear that Parliament in passing this Act, wished to enable Sections 47 and 48 to be operated by the Council in the absence of

38. There can be no doubt but that the Council must be concerned with the public interest. Section 51 of the Act makes that manifest. It has been said on behalf of Dr. Casey that the provisions of Section 51 address in a complete and full way any concerns which the Council may have concerning a registered medical practitioner vis-à-vis the public interest. I do not agree.

39. This section makes it clear that the Council does have a role to play in protecting the public interest but it does not appear to me that Section 51 can be regarded as the only way in which the public interest can be protected. It seems to me that Section 51 is reserved for exceptional cases where a Doctor has to be suspended from practice because it is in the public interest so to do. There must be cases where the Council would, from the point of view of protecting the public, wish to bring about an improvement in the standards of an individual practitioner. It would be absurd that in every such case where the Council desired so to do it would have to invoke the provisions of Section 51. To contend that this is the only mechanism that the Council is given by the Legislature in order to address the public interest is, in effect, to advocate the use of the proverbial sledge hammer to crack a nut with consequent hardship being suffered by the unfortunate medical practitioner who would be the recipient of such force. I am quite satisfied that the use of Sections 47 and 48 is much better designed in ordinary cases to bring about the desired result. It is entirely consistent with the whole scheme of the Act that the Council be entitled to operate those two sections in the circumstances which I have outlined.

40. There remains to be dealt with the contention that by utilising Sections 47 and 48 the Council is effectively reversing the finding of the Committee which in the instant case was favourable to Dr. Casey. I cannot accept that there is any validity in this view. The finding of the Committee on the complaint made against Dr. Casey stands. The case was not made out against him and the finding is in his favour. Nothing that the Medical Council or this Court can do on an application by either side under Section 47 can alter that situation. There is, therefore, no element of double jeopardy such as was contended for on behalf of Dr. Casey.

41. Finally, there was an argument addressed to me concerning the provisions of Section 45(5). That prohibits the findings of the Committee and the decision of the Council on any report made to it by that Committee from being made public without the consent of the person who has been the subject of the inquiry unless there has been a finding of guilt concerning professional misconduct or unfitness to engage in the practice of medicine because of physical or mental disability, as the case may be. It is said on behalf of Dr. Casey that the attachment of conditions to the retention of his name on the register is given effect to by recording in the register in addition to the usual information about the medical practitioner, the conditions imposed by the Respondent. The register is a document of public record and so it is said this breaches the provisions of Section 45(5) in the instant case. The Respondent says that this contention is premature. The reason for this is that there cannot be any question of attaching conditions to the Applicant's retention on the register unless and until there is a hearing and a determination by this Court that such condition should be attached. Such a hearing will take place in public. At that hearing it will be made clear that there has been no determination that the Applicant was guilty of professional misconduct or of unfitness to practice.

42. It seems to me that there is force in the Respondent's contention in this regard. In any event, I am of the view that if this Court were to take the view that the protection of the public interest required conditions of the type envisaged to be imposed it would not offend the provisions of Section 45(5) since it would be the Court and not the Committee or Council that would be imposing the conditions following a hearing.

43. As to the argument that compliance with the conditions sought to be attached to continued registration can only be enforced by erasure or suspension from the Register and that that is contingent on a finding of guilt by the Committee, I do not agree. A failure to comply with the conditions, if it occurred, would have to be the subject of a separate inquiry. There could not be any question of automatic erasure or suspension by reason of non-compliance.

44. I am also of the view that the argument made concerning damage to Dr. Casey's reputation by the attachment of such conditions is not made out having regard to the views expressed by Finlay P. in M. v. The Medical Council. First, any hearing under Section 47 must make it clear that the Committee found in his favour. Secondly, as was stated by Finlay P.at page 500:-

45. It appears to me that those words are apposite and dispose of this argument made by Dr. Casey.

46. Having regard to the findings which I have made above I am of the view that the Medical Council did not act ultra vires in its decision of the 11th of December 1998 concerning Dr. Casey and that none of the grounds advanced on his behalf demonstrate any legal imperfection in the decision of the Council. Consequently, it acted within jurisdiction and it was entitled to make the decision which it did.

47. It is desirable that I make one further comment. This hearing has been concerned only with the question of jurisdiction. It has not dealt in any way with the merits of the case nor indeed would it be entitled to do so on an application for judicial review. It follows therefore that whether or not the Council was correct on the merits of the case in seeking to attach conditions to the retention of Dr. Casey's name on the General Register of Medical Practitioners is a matter which will fall to be dealt with on an appropriate application to this Court under Section 47. That will be a hearing on the merits and nothing in this judgment should be construed as expressing any view one way or another on that topic.

48. This application is dismissed.