AA v Medical Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Ó Caoimh
• Judgment Date: 11 October 2001
• Neutral Citation: [2001] IEHC 211
• Date: 11 October 2001
• Docket Number: [2000 No. 120 J.R.]
• Court: High Court

[2001] IEHC 211

THE HIGH COURT

No. 120JR./2000

A (A) v. MEDICAL COUNCIL

JUDICIAL REVIEW

BETWEEN

A. A.

APPLICANT

AND

THE MEDICAL COUNCIL

RESPONDENT

Citations:

MEDICAL PRACTITIONERS ACT 1978 PART V

MEDICAL PRACTITIONERS ACT 1978 S45(3)

MEDICAL PRACTITIONERS ACT 1978 S45

MCGRATH V COMMISSIONER OF AN GARDA SIOCHANA 1991 1 IR 69

MCCARTHY V COMMISSIONER OF AN GARDA SIOCHANA 1993 1 IR 489

SAEED V INNER LONDON EDUCATION AUTHORITY 1985 ICR 637

MEDICAL PRACTITIONERS ACT 1978 S29

MEDICAL PRACTITIONERS ACT 1978 S46

MEDICAL PRACTITIONERS ACT 1978 S47

MEDICAL PRACTITIONERS ACT 1978 S48

MOONEY V AN POST 1998 4 IR 288

A MEDICAL PRACTITIONER, RE 1959 NZLR 784

MEDICAL PRACTITIONERS ACT 1950 S43(C)

MEDICAL PRACTITIONERS ACT 1950 S43(C)(6)

R V BIRD 1851 2 DEN 94

R V REID 1851 5 COX CC 104

R V OLLIS 1900 2QB 758

R V SALVI 1857 10 COX CC 481

R V BARRON 1914 2 KB 570

TOWNSEND V BISHOP 1939 1 AER 805

HEALTH CARE COMPLAINTS COMMISSION V LITCHFIELD UNREP SUPREME NSW 8.8.1997

WEARE, RE 1893 2 QB 439

LAW SOCIETY V BANNISTER 1993 4 LPDR 24

LEWIS V MOGAN 1943 KB 376

R V HOGAN 1960 2 QB 513

WIGGLESWORTH V THE QUEEN 1987 45 DLR 235

THE QUEEN V STOREY 1978 140 CLR 364

FRIEDLAND DOUBLE JEOPARD 1969 319

MULLIGAN EX-PARTE ISIDORO, RE 1979 WAR 198

MUNDAY V GILL 1930 44 CLR 38

JOHN L PTY V AG 1987 163 CLR 508

CROWN PROCEEDINGS ACT 1988 (UK)

OFFENCES AGAINST THE PERSON ACT 1861 S44

OFFENCES AGAINST THE PERSON ACT 1861 S45

HARRIS (IPSWICH) LTD V HARRISON 1978 1 ICR 1256

R V BBC, EX PARTE LAVELLE 1983 1 WLR 23

GRANT V GARDA SIOCHANA COMPLAINTS BOARD UNREP MURPHY 12.6.1996 1996/11/3617

PHILIPS V MEDICAL COUNCIL 1991 2 IR 115

CLUNE V DPP 1991 ILRM 17

DONEGAL FUEL & SUPPLY LTD V LONDONDERRY HARBOUR CMRS 1994 1 IR 24

R V BOSTOK 17 COX 1893 700

AG V POWER 1964 IR 458

MOONEY V AN POST 1998 4 IR 288

O LAOIRE V MEDICAL COUNCIL UNREP SUPREME 25.7.1997 1998/29/11470

BAHNDARI V ADVOCATES COMMITTEE 1956 3 AER 742

LANFORD V GENERAL MEDICAL COUNCIL 1956 2 AER 921

Synopsis:

JUDICIAL REVIEW

Fair procedures

Autrefois acquit - Double jeopardy - Res judicata - Disciplinary proceedings - Medical profession - Prohibition - Indecent assault - Estoppel - Allegations of misconduct - Onus of proof - Whether respondent estopped from proceeding with disciplinary hearing - Whether holding of disciplinary inquiry amounted to retrying of applicant - Medical Practitioners Act, 1978 (2000/120JR - O Caoimh J - 11/10/2001)

A (A) v Medical Council - [2002] 3 IR 1

Facts: The applicant, a medical doctor, had been prosecuted and acquitted on charges of sexual assault. The offences in question had allegedly arisen while the applicant was working as a doctor. After being acquitted in the Circuit Court the Fitness to Practice Committee of the respondent sought to hold an inquiry into allegations of professional misconduct against the applicant arising out of the alleged incidents. The applicant initiated judicial review proceedings seeking an order of prohibition against the holding out of the inquiry claiming that it amounted to a retrying of the applicant on the same facts which had already been determined by the criminal trial. It was submitted that the matters complained of were res judicata and the proposed inquiry infringed the principle of double jeopardy.

Held by Ó Caoimh J in refusing the relief sought. The inquiry the respondent was proposing to hold was concerned with a charge of professional misconduct which was not of itself an offence. The doctrine of autrefois acquit did not apply as the proceedings before the respondent were not concerned with offences against the law. There was not the same identity of parties between those involved in the criminal proceedings and those involved in the proposed inquiry which would be necessary in order to give rise to the principle of res judicata. There was no reason why the respondent should not hear the proposed evidence and consider it in relation to the conduct of the applicant. However it would be essentially unfair if the respondent was permitted to determine whether the applicant was guilty of an assault of which he had been acquitted by the courts and thus the proposed inquiry would be limited into hearing certain complaints only.

1 JUDGMENT of Mr. Justice Ó Caoimh delivered the 11th day of October, 2001

2 By Order of the High Court made by Mr. Justice O'Higgins on the 13th day of March, 2000 the applicant was given leave to apply by way of Judicial Review for the following reliefs

3 (i) An order prohibiting the respondent from holding an Inquiry under Part V of the Medical Practitioners Act, 1978notice of which was served upon the applicant by notice dated the 21st day of February 2000 into allegations of professional misconduct on the part of the applicant.

4 (ii) A declaration that the holding of such an inquiry into allegations of assault and/or indecent assault and/or sexual assault on Ms. J. H. on or about 28th July 1997 and/or allegations of assault and/or indecent assault and/or sexual assaults by the applicant on M. O'S. on or about the 28th July 1997 amount to a breach of natural justice.

5 (iii) A declaration that the conducting of the said inquiry infringes the principle of double jeopardy, a fundamental principle of fair procedure and natural justice.

6 (iv) A declaration that the respondent is estopped from so proceeding to conduct an Inquiry into the said allegations.

7 (v) A declaration that the matters being the subject matters of the proposed said Inquiry are res judicata

8 The grounds upon which relief is sought are as follows:-

9 i i. That the applicant was tried before a judge and jury at the Dublin Circuit Criminal Court on Bill Number 1017 of 1997 between the 18th day of January, 1999 and the 5th day of February, 1999 on charges that the applicant did sexually assault M. O'S. and J. H. on or about the 28th day of July, 1997 at the Mater Misericordiae Hospital, Eccles Street, in the County and City of Dublin. The applicant was acquitted on both charges.

10 ii ii. That the proposed inquiry by the Fitness to Practice Committee of the Medical Practitioners Act, 1978amounts to a breach of fair procedures.

11 iii iii. That the said proposed inquiry attempts to set at naught the verdict of a jury sitting at the Dublin Circuit Criminal Court.

12 iv iv. That the matters to be inquired into at the proposed said inquiry are the same matters which were properly tried before a judge and jury at the Dublin Circuit Criminal Court

13 v v. That the respondent is estopped from inquiring into matters which were lawfully determined in the course of a criminal trial at the Dublin Circuit Criminal Court before a judge and jury of the said Court in February of 1998.

14 vi vi. That the said proposed inquiry is an attempt to retry the applicant on the same facts in relation to the same events which is an oppressive and unfair procedure.

15 vii vii. That in instituting an inquiry purporting to be pursuant to Part 5 of the part of the applicant, the respondent is acting contrary to the rules of natural and constitutional justice and is a serious detriment to the applicant

16 viii viii. That the respondent's refusal to cease the said inquiry amounts to a failure on its part to vindicate the applicant's right to constitutional justice and fair procedures.

17 The applicant has sworn an affidavit in which he sets out his medical qualifications as a medical doctor having qualified in Lahore, in Pakistan in 1993. It appears from his affidavit that he was a Surgical Intern at the Service Hospital in Lahore, in Pakistan from the 12th July, 1993 until the 11th January, 1994 and was a Medial Intern at the same hospital until the 11th of July, 1994. Thereafter he was a Medical Officer in Surgery in Pakistan until the 5th December, 1994 when he was in general practice until the 30th February, 1996. From 9th March, 1996 until 15th September, 1996 he was a Senior House Officer in Anaesthesia at the Services Hospital, Lahore in Pakistan. He says that he also worked as a General Practitioner.

18 The applicant says that he married a British National in October, 1992. She returned to the United Kingdom on the 8th of August, 1993 and gave birth to a baby child on the 30th September, 1993. The applicant says that he intended joining his family in England on the 13th November, 1994 on an immigrant visa sponsored by his wife but having arrived at Heathrow Airport the Immigration Authorities told him that the sponsorship for his visa had been withdrawn by his wife. He says that in these circumstances he was returned to Pakistan. He says that having returned to Pakistan he determined that he wished to return to the West and further his studies there and in addition to be in a position to have contact with his wife and child. He says that he was advised by a colleague in Pakistan that he should go to Ireland where he might have the opportunity to get post graduate experience and at the same time be in a position to visit his family. He says that in those circumstances in October of 1996 he came to Ireland after which he visited the Navan Hospital and got a Supernumerary post in Anaesthesia in Our Lady's Hospital, Navan and on the basis of this he received registration with the Medical Council of Ireland. He says however that the hospital required a Doctor Trainee Visa in Ireland but the Visa authorities required him to leave the country and apply for a Doctor Trainee Visa to the same Dublin office but from outside the jurisdiction. He says that in those circumstances he went to live in Paris for two months but was again refused a visa from the Irish authorities.

19 In the event the applicant returned to Pakistan and ultimately received a Doctor Trainee Visa and returned to Ireland on the 25th April, 1997. He says that the position in Our Lady's Hospital in Navan was no longer available but...