Ahmed -v- Medical Council, [2003] IESC 70 (2003)

Docket Number:208/03
Party Name:Ahmed, Medical Council
Judge:Hardiman J. / Keane C.J.
 
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JUDGMENT BY: Hardiman J.THE SUPREME COURTJUDICIAL REVIEWKeane C.J. 208/03Denham J.Murray J.McGuinness J.Hardiman J.Between:AFTAB AHMED ApplicantandTHE MEDICAL COUNCIL RespondentandTHE ATTORNEY GENERAL Notice PartyJUDGMENT of Mr. Justice Hardiman delivered on the 19th day of December, 2003.This is the applicant's appeal from the judgment of the High Court (Ó Caoimh J.) of the 28th April, 2003 and consequent order perfected on the 13th May, 2003 whereby the applicant's claims to relief by way of judicial review were dismissed.Factual background.The applicant is a medical graduate of Allama Iqbal Medical College, Lahore, Pakistan. He graduated in 1993, and subsequently worked in various hospital posts and in general practice. His personal history is set out in some detail in the judgment of Ó Caoimh J. in previous judicial review proceedings instituted by the applicant against the respondent, delivered the 11th October, 2001.On the 6th July, 1997 the applicant commenced working in the Mater Hospital, Dublin as a supernumerary unpaid Senior House Officer. He obtained temporary registration as a medical practitioner. It appears that he took up this position with a view to obtaining a place on a training course. On the 28th July, 1997 the applicant performed certain actions in relation to two female patients who were awaiting relatively minor surgery. The two patients spoke to various persons including relatives, staff at the hospital and ultimately to the Gardaí alleging that these actions amounted to sexual assault. He was charged with two counts of sexual assault on or about the 7th August, 1997. Bail was set on these charges but the applicant was unable to meet the terms of the bail order and was accordingly on remand awaiting trial from August 1997 until January, 1999. In the latter month he was acquitted of both counts.The Medical Council's involvement.Subsequent to his acquittal, the applicant again sought temporary registration from the respondent Council. The Council is a body incorporated by statute, the Medical Practitioners Act, 1978. Allegations of professional misconduct arising out of the applicant's alleged actions in the Mater Hospital on the 28th July, 1997 were made to the Medical Council and considered by its Fitness to Practice Committee. On the 26th October, 1999 the Committee decided that there was a prima facie case for the holding of an inquiry into alleged misconduct on the part of the applicant. The applicant was notified of this on 28th October, 1999. Pursuant to Part V of the Medical Practitioners Act, 1978, it then became the duty of the Council's registrar to present the evidence of alleged misconduct to the Committee. Notice of Inquiry was issued and served on the 21st February, 2000 and the hearing fixed for the 13th, later changed to the 14th, of March, 2000.On the 13th March, 2000 the applicant obtained leave to apply for judicial review in proceedings entitled "The High Court 2000 No. 120 JR Between Aftab Ahmed, Applicant and the Medical Council Respondent". He also obtained an ex parte order restraining the conduct of the Inquiry. These proceedings will henceforth be referred to as the "first Judicial Review proceedings". The principal relief sought in these proceedings is similar to that originally sought in a second set of proceedings ("The present proceedings"). The grounds on which the relief sought are, however, different. In the first proceedings he claimed:-"(i) An order prohibiting the respondent from holding an inquiry under Part V of the Medical Practitioners Act, 1978, notice of which was served upon the applicant by Notice dated the 21st February, 2000 into allegations of professional misconduct on the part of the applicant.(ii) A declaration that the holding of such an inquiry into allegations of assault and/or indecent assault and/or sexual assault on Mrs. J.H. on or about the 28th July, 1997 and/or allegations of assault and/or indecent assault and/or sexual assault by the applicant on MOS on or about the 28th July, 1997 amount to a breach of natural justice.(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.(iv) A declaration that the respondent is estopped from so proceeding to conduct an inquiry into the said allegations.(v) A declaration that the matters being the subject matters of the proposed said inquiry are res judicata.The relief sought at the present proceedings are:-(1) An Order staying the inquiry being held by the Respondent pursuant to Part V of the Medical Practitioners Act, 1978, notice of which was served upon the Applicant by Notice dated the 7th day of December, 2001 into allegations of professional misconduct on the part of the Applicant insofar as the Fitness to Practice Committee may not proceed to report stage.(2) A Declaration that the Respondent's failure to provide legal aid to the Applicant to enable the Applicant be legally represented at the proposed Section 45 Inquiry to be conducted by the Respondent's Fitness to Practice Committee at which the Applicant will be charged with professional misconduct constitutes a failure on the part of the Respondent to provide fair procedures to vindicate the Applicant's right to earn his livelihood.(3) A Declaration that Part V of the Medical Practitioners Act, 1978 and in particular the statutory power granted to the Respondent to conduct Inquiries into the Fitness to Practice of any Medical Practitioner requires the Respondent in the conduct of such Inquiry to conduct such Inquiry in a manner which is fair and in accordance with the principles of natural and constitutional justice and that such conduct would require that any person brought before such Inquiry would be legally represented and that if such person is unable to afford such representation that an onus falls upon the Respondent to provide such person with legal representation or with the means to procure such legal representation.(4) A Declaration that the failure of the Respondent to provide the Applicant with the means by which he may be legally represented at the Disciplinary Inquiry being conducted by the Applicant's Fitness to Practice Committee constitutes a breach of the Applicant's constitutional rights and, in particular, the Applicant's constitutional rights to his good name and to earn a livelihood.(5) A Declaration of Section 56 of the Medical Practitioners Act, 1978, permits the Respondent to provide or cause to be provided legal representation or sufficient means so to enable the Applicant to procure legal representation at the hearing of the Inquiry pursuant to Part V of the Medical Practitioners Act, 1978, notice of which was served on the Applicant by Notice dated the 7th day of December, 2001 into allegations of professional misconduct on the part of the Applicant.(6) In the alternative a Declaration that insofar as the provisions of Part V of the Medical Practitioners Act, 1978, do not permit the Respondent to provide legal representation to any means so to procure legal representation to the Applicant the same are invalid having regard to the provisions of the Constitution.From the foregoing it can be seen that the primary relief in each case was to prevent the holding or continuance of the inquiry. However, the grounds relied on in the first set of proceedings relate to alleged double jeopardy and breach of natural justice in the form of multiple proceedings in the same matter. By contrast, the emphasis in the present proceedings is alleged breach of natural justice, and infringement of constitutional rights by reason of what is alleged to be the Council's failure to provide legal aid for the applicant, together with a declaration of s.56 of the Act of 1978 permits the Council to "provide or cause to be provided legal representation or money in lieu thereof", with the alternative declaration that, if the Section does not have that effect "the provisions of Part V for the Act of 1978 are invalid having regard to the provisions of the Constitution".Chronology...

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