High Court of Ireland Decisions

1. This matter comes before the Court as a Special Summons brought pursuant to the Medical Practitioner’s Act 1978.

2. The Plaintiff seeks the following reliefs:

3. Counsel for the Parties have agreed that prior to embarking upon the issues which arise from the Pleadings and the Grounding Affidavits that the Court should consider what has been described as a Preliminary Issue. That is:

4. Whether the Plaintiff is entitled to apply pursuant to Section 46 of the Medical Practitioner’s Act 1978 or otherwise to the High Court for the cancellation of the decision made by the Defendants on the 9th December 1999.

5. The facts of the case insofar as they are relevant to the determination of the issue can be summarised as follows:

6. The Plaintiff is a medical doctor. Prior to the events which give rise to these proceedings the Plaintiff was registered as a temporary medical practitioner pursuant to Section 29 of the Medical Practitioner’s Act of 1978. He was working as Locum Senior House Officer in the casualty department of Tallaght Hospital on the 21st December 1998. A complaint was made against the Defendant by a patient that he was guilty of professional misconduct. On foot of this complaint the Defendants Fitness to Practice Committee held an enquiry under Part 5 of the said Act into these allegations of professional misconduct. The oral hearing took place on the 22nd November 1999.

7. The Fitness to Practice Committee furnished a report to the Defendants which came before them for determination on the 9th December 1999.

8. The decision of the Council, which was read to the Plaintiff at the meeting on Thursday 9th December 1999, was communicated to him by letter dated the 10th December 1999 the relevant part of which reads as follows:

9. The Council took careful note of the submission which was made on your behalf in reaching its decision on the question of whether or not sanction should be imposed. The Council instructs me to inform you that it decided that on completion of your current period of temporary registration on the 31st December 1999 the Council will not grant you further periods of temporary registration prior to the 1st July 2000. The Council further decided to invoke its powers under the provisions of Section 48 of the Medical Practitioner’s Act 1978 and to censure you in relation to your professional conduct.

10. The decision was made by the Council at its meeting on the 9th December 1999.

11. The reason for the Council’s decision was that the Fitness to Practice Committee, having found that the facts set out in the notice of enquiry proved and taking into account the evidence adduced, formed the opinion that you were guilty of professional misconduct.

12. This is the decision which the Plaintiff seeks to cancel in these proceedings.

13. On behalf of the Plaintiff Mr. Noonan B.L. submits that Section 46, 47 and 49 of the Act empower the Council to impose sanctions upon a medical practitioner which are so grave that they constitute an administration of justice, a function reserved by the Constitution to the courts and that it is for this reason that any decision under these sections must be approved by the High Court. Such a decision might be to erase a medical practitioner’s name from the Register or during a specified duration decide that the registration of his name in the Register of medical practitioners should have no effect. Council submits that the Defendant’s decision not to register the Plaintiff as a

14. On behalf of the Respondent it is submitted by Mr. McCullagh B.L. that temporary registered medical practitioners are a special case. They come to this jurisdiction for the purpose of training. They are subject to limitations which do not apply to other medical practitioners and that the Act clearly envisages that a degree of control must be permitted for such trainees.

15. It is further submitted by Mr. McCullough that while the Plaintiff will find it impossible to practice in this jurisdiction the decision of

16. Part 3 of the Act provides that there may be three forms of registration. Full registration, provisional registration or temporary registration.

17. The provisions for temporary registration are set out in Section 29 of the Act and in summary such registration is intended for a person who intends to be in the State temporarily for the purpose of employment in the practice of medicine in a hospital approved by the Council for the purpose of that section and that such a person holds a degree, diploma or other qualification which in the opinion of the Council affords sufficient guarantee that he has the requisite knowledge and skill for the efficient practice of medicine, has passed an examination appropriate for obtaining such degree, diploma or other qualification and possesses a certificate of experience considered by the Council to be equivalent to that required for formal qualification.

18. Being so satisfied the Council may temporarily register such person in the Register for such period as the Council may determine and the Council may extend a period determined under the Subsection for such further periods as the Council may determine providing that the aggregate of such periods shall not exceed five years.

19. The powers conferred upon the Council are to decide to erase from the Register the name of a medical practitioner or to decide that during a period of specified duration the name of the medical practitioner should not have effect. The medical practitioner then has

20. A further separate power is given to the Council and that is it may decide to attach such conditions as it thinks proper to the retention in the Register of any person’s name. Again the medical practitioner is empowered to apply to the High Court for the cancellation of that decision.

21. Under Section 49 if a medical practitioner is convicted in the State of an offence triable on indictment or outside of the State of an offence which would constitute an offence triable on indictment if done or made in the State, the Council may decide that the name of the person should be erased from the Register. Again the medical practitioner has the right to apply to the High Court for the cancellation of that decision.

22. Finally the Council has one further entitlement and that is that it may, following an enquiry and report of the Fitness to Practice Committee it may, “advise, admonish or censure such person in relation to his professional conduct.”

23. I am satisfied that this is the power which the Defendants exercised in this case. The relevant part of the notification reads as follows:

24. The Council further decided to invoke its powers under the provisions of Section 48 of the Medical Practitioner ‘s Act 1978 and to censure you in relation to your professional conduct.”

25. It is true that independent and separate from any powers which the Council may have had under Section 48 it decided that the Plaintiff’s temporary registration would not be renewed until after the 1st July 2000. I am satisfied that the Council had such a power which it derived from its obligation to regulate temporary medical practitioners and not as a power derived under Section 48.

26. I am satisfied that when the Council exercises the power under Section 48 alone and not in conjunction with any of the powers conferred On it by Section 46, 47 or 49 no right is given to the Medical Practitioner to apply to the court within 21 days to set that decision aside. This is because the sanction of advice, admonishing and censuring is not of sufficient gravity.

27. Accordingly, the preliminary issue should be answered as follows:-

28. The Plaintiff is not so entitled.