Anthony Enobo Akpekpe v Medical Council

JurisdictionIreland
JudgeKearns P.
Judgment Date01 February 2013
Neutral Citation[2013] IEHC 38
CourtHigh Court
Docket Number[2012 No. 269 JR]
Date01 February 2013

[2013] IEHC 38

THE HIGH COURT

[No. 269 JR/2012]
Akpekpe v Medical Council & Ors
JUDICIAL REVIEW

BETWEEN

ANTHONY ENOBO AKPEKPE
APPLICANT

AND

THE MEDICAL COUNCIL, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS

MEDICAL PRACTITIONERS ACT 2007 PART VIII

MEDICAL PRACTITIONERS ACT 2007 S71

MEDICAL PRACTITIONERS ACT 2007 S71(A)

MEDICAL PRACTITIONERS ACT 2007 PART IX

MEDICAL PRACTITIONERS ACT 2007 S75(1)

CONSTITUTION ART 40

MEDICAL PRACTITIONERS ACT 2007 S59

MEDICAL PRACTITIONERS ACT 2007 S65

MEDICAL PRACTITIONERS ACT 2007 S63(A)

MEDICAL PRACTITIONERS ACT 2007 PART VII

MEDICAL PRACTITIONERS ACT 2007 S57

MEDICAL PRACTITIONERS ACT 2007 S63

MEDICAL PRACTITIONERS ACT 2007 S65(3)(B)

MEDICAL PRACTITIONERS ACT 2007 S65(3)(C)

MEDICAL PRACTITIONERS ACT 2007 S67

MEDICAL PRACTITIONERS ACT 1978 S13(7)

CONSTITUTION ART 40.1

CONSTITUTION ART 40.3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

GHOSH v GENERAL MEDICAL COUNCIL 2001 1 WLR 1915 2001 AER (D) 189 (JUN) 2001 UKPC 29

D (M) (A MINOR) v IRELAND & ORS 2012 1 IR 697 2012 2 ILRM 305 2012 IESC 10

M v MEDICAL COUNCIL & AG 1984 IR 485 1984/7/2533

PRENDIVILLE v MEDICAL COUNCIL & ORS 2008 3 IR 122 2007/51/10911 2007 IEHC 427

HUDDART PARKER & CO PTY LTD v MOOREHEAD 8 CLR 330 1909 HCA 36

SOLICITORS ACT 1954, IN RE 1960 IR 239

PRENTIS & ORS v ATLANTIC COAST LINE CO 1908 211 US 210

R (WEXFORD CO COUNCIL) v LOCAL GOVT BOARD FOR IRELAND 1902 2 IR 349 1901 35 ILTR 87

QUINN v HONOURABLE SOCIETY OF KINGS INNS 2004 4 IR 344 2004/43/9784 2004 IEHC 220

CONSTITUTION ART 34

CARROLL v MIN FOR AGRICULTURE 1991 1 IR 230 1990/1/201

MEDICAL PRACTITIONERS ACT 2007 S70(A)

O'B v S 1984 IR 316

REDMOND v MIN FOR THE ENVIRONMENT & ORS 2001 4 IR 61 2001/21/5654

R (NICOLAIDES) v GENERAL MEDICAL COUNCIL 2001 LLOYDS REP MED 525 2001 EWHC ADMIN 625

R (THOMPSON) v LAW SOCIETY 2004 1 WLR 2522 2004 2 AER 113 2004 EWCA CIV 167

HOGAN & WHYTE JM KELLY: THE IRISH CONSTITUTION 4ED 2003 PARA 7.2.81

STATE (HUNT) v O'DONOVAN & AG 1975 IR 39

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5

CONSTITUTIONAL LAW

Personal rights

Constitutional right to good name - Constitutional right to livelihood - Equality before law - Minor sanction imposed by disciplinary body - Right of appeal - No appeal provided for in respect of minor sanction - Failure to seek declaration of incompatibility with European Convention on Human Rights - Whether lack of right of appeal unconstitutional - Whether discrimination invidious or unjustifiable - Whether lack of right of appeal contrary to European Convention on Human Rights - Whether applicant entitled to argue incompatibility with European Convention on Human Rights where no declaration sought - M v Medical Council [1984] IR 485 followed and MD v Ireland [2012] IESC 10, [2012] 2 ILRM 305 applied - European Convention on Human Rights Act 2003 (No 20), s 5 - Medical Practitioners Act 2007 (No 25), ss 2 and 70 - Constitution of Ireland, Article 40.1 - European Convention on Human Rights, article 6 - Orders refused (2012/269JR - Kearns P - 1/2/2013) [2013] IEHC 38

Akpekpe v Medical Council

Facts: The proceedings arose from the finding and decision of the Fitness to Practise Committee of the Medical Council made in relation to the applicant following an inquiry held pursuant to the Medical Practitioners Act 2007. A sanction of advice was applied in respect of a finding of poor professional performance. The applicant alleged that he was denied a right of appeal from a decision, which amounted to an unfair procedure in breach of his constitutional rights.

Held by Kearns P that it had not been shown that the impugned section had breached his constitutional rights. The publication of the fact that the sanction had been imposed did not violate his right to a good name or reputation. The reliefs sought would be refused.

1

JUDGMENT of Kearns P. delivered on the 1st day of February, 2013

2

These proceedings arise from the finding and decision of the Fitness to Practise Committee of the Medical Council made in relation to the applicant following an inquiry held pursuant to Part 8 of the Medical Practitioners Act 2007 (hereinafter referred to as "the Act of 2007"). At the conclusion of that hearing which took place in February, 2012 the Committee found that of several complaints against the applicant only one had been proven as to fact which amounted to poor professional performance. The Committee then decided that the appropriate penalty under s. 71 of the Act of 2007 was to apply the sanction of "advice- contained in s. 71(a) of the Act which provides for the sanctions of "an advice or admonishment, or a censure, in writing". The Committee thus recommended to the Council that the applicant be 'advised' as to his performance on the basis that it was at the lower end of poor professional performance. The Medical Council considered the report of the Fitness to Practise Committee and decided to advise both the applicant and the public of the finding made in relation to his professional conduct, the reason being stated as the seriousness of the finding of poor professional performance made against him.

3

The present proceedings were commenced by leave of the High Court (Peart J.) granted on 26 th March, 2012, in which the applicant seeks an order of certiorari quashing the finding and decision of the Fitness to Practise Committee and a further order quashing the decision of the Medical Council made subsequently thereto. In the proceedings the applicant seeks a declaration that the provisions of Part 8 and Part 9 of the Medical Practitioners Act 2007, insofar as they deny the applicant a right of appeal from a decision or finding of the Fitness to Practise Committee into the guilt of the applicant of an allegation of poor professional performance, constitutes a denial of fair procedures, a breach of the applicant's constitutional rights, a breach of the applicant's rights enshrined in the European Convention on Human Rights and Fundamental Freedoms and is contrary to the principles of constitutional and natural justice. The applicant also seeks a declaration that the provisions of s. 75(1) of the Medical Practitioners Act 2007 insofar as it denies the applicant a right to appeal against the imposition of a sanction and/or against the making of a finding by the Medical Council and/or the Fitness to Practise Committee of the Medical Council is repugnant to the provisions of Bunreacht na hÉireann and is void. Section 71(a) of the Act of 2007 is the only disciplinary provision of the section which does not admit of an appeal and the applicant contends that his equality rights are thereby infringed in that he lacks a range of remedies available to other medical practitioners who suffer more grievous findings and sanctions imposed under other limbs of the section. He contends that even the relatively modest findings made against him in this case have nonetheless extremely serious adverse consequences in terms of his professional reputation which warrant the existence and availability to him of some form of appeal mechanism.

4

No complaint was made at the hearing about the fairness of the hearing conducted by the Fitness to Practise Committee.

5

The statement of opposition delivered on behalf of the Medical Council denies that the non-existence of an appeal on being sanctioned pursuant to s. 71(a) constitutes an invidious or unjustifiable discrimination against the applicant or that aggrieved professionals in other professional regulatory systems enjoy a right of appeal from any finding made against them in relation to their professional performance or that all other professional persons have a right of appeal in similar circumstances. The applicant's right to fair procedures does not mandate or require the existence of an appeal. Further, in circumstances where no sanction was imposed on the applicant, there was no determination of the civil rights and obligations of the applicant (the relevant civil right being the right to practise medicine) and in the premises the applicant is not entitled to the relief sought. It is further denied that the legislative regime in question infringes the applicant's rights as guaranteed by Article 40 of the Constitution. On the contrary, the common good requires the publication of facts concerning persons such as the applicant which may affect the public. Any interference with his good name or professional reputation was upon grounds of legitimate public interest, was proportionate, without discrimination and reasonable.

6

Similar denials appear in the statement of opposition filed on behalf of the State respondents who contend that the Oireachtas is entitled to regulate the manner in which medical practitioners operate and to discipline its practitioners for breaches of the profession's rules and standards of conduct. The Act of 2007 established an elaborate tiered structure for the investigation, determination and conclusion of complaints against medical practitioners. This process involves three separate bodies: a Preliminary Proceedings Committee to investigate a complaint in the preliminary and to determine whether a prima facie case has arisen under s. 59 of the Act, a Fitness to Practise Committee to hear the complaint in a full inquiry under s. 65 of the Act and the Medical Council to determine sanction under s. 71 of the Act. In this context it is submitted that a doctor's rights are, and the applicant's rights were, fully protected.

BACKGROUND FACTS
7

The applicant is a medical practitioner and fellow of the Royal College of Surgeons who in September, 2010 was employed by Mediserve Ireland, an "out of hours" medical service for general practitioners operating in Dublin.

8

On that date, the applicant received a call to attend at the home of Mr. Patrick Lowe of 50...

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