Ahmed v Medical Council

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Murray C.J.
• Judgment Date: 21 January 2010
• Neutral Citation: [2010] JILL-SC 012101
• Docket Number: Appeal No. 013/2007
• Date: 21 January 2010

[2010] JILL-SC 012101

THE SUPREME COURT

Murray C.J.

Finnegan J.

O'Donnell J.

Appeal No. 013/2007

Ahmed v Medical Council

BETWEEN

AFTAB AHMED

APPLICANT/APPELLANT

-V-

THE MEDICAL COUNCIL

RESPONDENT

AND

IRELAND AND THE ATTORNEY GENERAL

NOTICE PARTIES/RESPONDENTS

MEDICAL PRACTITIONERS ACT 1978 PART IV

A (A) v MEDICAL COUNCIL 2003 4 IR 302 2004 1 ILRM 372 2003/1/49

HENDERSON v HENDERSON 1843 3 HARE 100 67 ER 313

PHILLIPS v MEDICAL COUNCIL & ORS 1992 ILRM 469 1992/4/910

KENNEDY T/A GILES J KENNEDY & CO SOLICITORS v LAW SOCIETY OF IRELAND UNREP MACMENAMIN 23.3.2006 2006/31/6706 2006 IEHC 172

Murray C.J.

1 This is the third set of judicial review proceedings which the appellant has brought in respect of certain disciplinary hearings which were conducted at the instance of the first named respondents and which led to him being found guilty of professional misconduct. The appellant appeals against an order of the High Court which struck out this application for judicial review as constituting an abuse of process. The misconduct for which he was disciplined occurred in 1997. Following the allegations of misconduct the appellant was tried for certain criminal offences and was acquitted of any criminal wrongdoing at the trial. Subseqent to the trial the aforementioned respondents proceeded with disciplinary charges against the appellant. On the 13^th March 2000 the appellant obtained leave to apply for the first judicial review relating to the disciplinary proceedings claiming that the proceedings of the Disciplinary Tribunal should be prohibited essentially because to proceed with the disciplinary charges, it was claimed, would expose him to double jeopardy in the sense that that is prohibited by the law and the Constitution. He was unsuccessful in that judicial review in that the final order of the Court was that the disciplinary hearing could proceed in relation to a range of alleged offences of professional misconduct but not all of them.

2 The respondents, the Medical Council, in the exercise of their statutory powers, went ahead with the misconduct proceedings and the tribunal was assembled to hear and determine the charges of misconduct. In February 2002 the appellant sought and was granted leave to bring a second set of proceedings for judicial review on the grounds that he did not have legal aid or that the Medical Council had not provided him with legal representation and that this was a breach of his constitutional rights and would prejudice certain rights which were referred to in those proceedings. That application included a claim that part 4 of the Act of 1978 insofar as it did not permit the respondents, the Medical Council, to provide or procure legal representation for the applicant was unconstitutional.

3 In the judgment of the High Court in those second judicial review proceedings Mr. Justice O'Caoimh recorded a submission of the appellant in which he relied on the fact that he would have no right of appeal in respect of certain findings of misconduct that could be made by the tribunal. I mention that simply to indicate that the appellant was well aware at that time, so far as that is relevant at all, that one of the consequences that could arise from a finding of misconduct was that the decision of the tribunal would be final and that there would be no right of appeal apart from any other remedy that might in certain circumstances arise.

4 He was found guilty of misconduct on the 15th April 2004. On the 13^th July 2004 the appellant was again given leave to bring judicial review by Mr. Justice O'Caoimh and these are the proceedings that are now before this Court on appeal. The leave to bring judicial review proceedings was sought and granted on grounds which centre on the absence of a right of appeal from the finding of professional misconduct by the Medical Council, that finding having been made, as I have said, on the 15^th April 2004. The absence of a right of appeal, the appellant claims, is in breach of his constitutional right including his right to his good name and his right to work. The leave to bring judicial review proceedings was granted ex parte and subsequently the respondent and the Attorney General brought motions to dismiss these proceedings on the grounds that they constituted an abuse of process.

5 Also before the High Court in this matter was a further application brought by the appellant himself to amend and...