Bakht v The Medical Council

• Jurisdiction: Ireland
• Judge: [Nem Diss],GRIFFIN J.
• Judgment Date: 06 April 1990
• Neutral Citation: 1990 WJSC-SC 52
• Docket Number: (312/89),[1988 No. 187 JR]
• Court: Supreme Court
• Date: 06 April 1990

BAKHT v. MEDICAL COUNCIL

BETWEEN/

MUHAMMOD MURAD BAKHT

Applicant

and

THE MEDICAL COUNCIL

Respondent

1990 WJSC-SC 52

(312/89)

THE SUPREME COURT

Synopsis:

DAMAGES

Assessment

Supreme Court - Special circumstances - Medical Council - Breach of duty - Failure to make statutory rules - Applicant sought registration - Application frustrated - Compensation for applicant's loss of income - Compensation not assessed by High Court - Assessment made by appellate court - (312/89 - Supreme Court - 6/4/90) - [1990] 1 I.R. 515 - [1990] ILRM 840

|Bakht v. Medical Council|

PROFESSIONS

Medical practitioner

Registration - Application - Foreign applicant - Medical Council - Procrastination - Applicant - Qualifications - Duty of Council - Breach - Duty of Council to determine required qualifications of successful applicant - Failure to discharge duty - Loss suffered by applicant - Compensation payable by Council - Compensation assessed by appellate court - Respondents obliged to make appropriate rules - In the absence of such rules, the respondents had no power to determine an application - Medical Practitioners Act, 1978, ss. 27–28 - (312/89 - Supreme Court - 6/4/90) - [1990] 1 I.R. 515 - [1990] ILRM 840

|Bakht v. The Medical Council|

STATUTORY INTERPRETATION

Power

Conferment - Implication - Rules - Creation - Necessity - Implementation of provisions of enactment - Mandatory obligations to make rules - Doctor's application to have name entered on the register - Failure of Medical Council to make relevant rules - Application frustrated - Breach of statutory - Loss of earnings - Compensation payable to applicant - (312/89 - Supreme Court - 6/4/90) - [1990] 1 I.R. 515 - [1990] ILRM 840

|Bakht v. The Medical Council|

SUPREME COURT

Jurisdiction

Appeal - Damages - Assessment - Special circumstances - Medical Council - Breach of duty - Failure to make statutory rules - Applicant sought registration - Applicant frustrated - Compensation for applicant's loss of income - Compensation not assessed by High Court - Assessment made by appellate court - (312/89 - Supreme Court - 6/4/90) [1990] 1 I.R. 515 [1990] ILRM 840

|Bakht v. The Medical Council|

TRIBUNAL

Duties

Statute - Breach - Medical Council - Applications - Procedure - Failure to make statutory rules - Applicant sought registration - Application frustrated - Compensation for applicant's loss of income - Compensation not assessed by High Court - Assessment made by appellate court - (312/89 - Supreme Court - 6/4/90)

|Bakht v. The Medical Council|

Citations:

MEDICAL PRACTITIONERS ACT 1955 S3

MEDICAL PRACTITIONERS ACT 1955 S3(2)

MEDICAL PRACTITIONERS ACT 1978 S6

MEDICAL PRACTITIONERS ACT 1978 S26

MEDICAL PRACTITIONERS ACT 1978 S27

MEDICAL PRACTITIONERS ACT 1978 S27(1)

MEDICAL PRACTITIONERS ACT 1978 S27(2)

MEDICAL PRACTITIONERS ACT 1978 SCHED IV

MEDICAL PRACTITIONERS ACT 1978 S27(2)(d)

MEDICAL PRACTITIONERS ACT 1978 S28

MEDICAL PRACTITIONERS ACT 1978 S29

MEDICAL PRACTITIONERS ACT 1978 PART IV CHAP I

MEDICAL PRACTITIONERS ACT 1978 S36

MEDICAL PRACTITIONERS ACT 1978

MEDICAL PRACTITIONERS ACTS 1927–1961

MEDICAL PRACTITIONERS ACT 1927 S26

MEDICAL PRACTITIONERS ACT 1978 S29(1)

MEDICAL PRACTITIONERS ACT 1978 S29(2)

MEDICAL PRACTITIONERS ACT 1978 S27(2)(a)

MEDICAL PRACTITIONERS ACT 1978 S27(2)(b)

MEDICAL PRACTITIONERS ACT 1978 S27(2)(c)

MEDICAL PRACTITIONERS ACT 1978 S27(2)(e)

1 JUDGMENT delivered on the 6th day of April 1990 by GRIFFIN J. [Nem Diss]

2 The above-named Muhammod Murad Bakht ("the applicant") qualified as a Bachelor of Medicine and Surgery at the University of Dacca, Bangladesh in July 1973. At the end of 1977 he came to Ireland and, on the 14th December 1977, he applied for and received a certificate of temporary registration from the Medical Registration Council pursuant to s. 3 of the Medical Practitioners Act, 1955.This permitted him to practise medicine "in a hospital or other institution approved of by the Council" for the period of 6 months commencing on the 1st January 1978, the designated hospital being Peamount Hospital in County Dublin. S. 3(2) of the 1955 Act permitted that Council to extend the period of 6 months for such period or periods as it might determine. There was, under s. 3, no limitation on the period or periods for which the Council might extend the permitted period.

3 After the applicant took up his employment in Peamount Hospital, the Medical Practitioners Act, 1978, came into force. That Act provided for the establishment of the Medical Council ("the Council") to fulfil the functions assigned to it by the Act (s. 6) and it is required to hold at least 4 meetings per year. It was required by s. 26 to prepare and establish a register of medical practitioners, the register to indicate whether the person registered is fully registered, provisionally registered or temporarily registered.

4 S. 27 prescribes the persons entitled to be registered in the register, and the material provisions for the purpose of this appeal are subsections (1) and (2) which are in the following terms:-

"27(1) Subject to the provisions of this Act, every person whose name, at the date of the establishment of the register, is entered in the Register of Medical Practitioners maintained by the Medical Registration Council pursuant to the Medical Practitioners Acts, 1927to 1961, shall be registered in the register."

5 (2) Any person who -

6 (a) immediately before the establishment of the register was entitled to be registered in accordance with the Medical Practitioners Acts, 1927to 1961, and was not so registered, or

7 (b) following the establishment of the register, is awarded any of the primary qualifications specified in the Fourth Schedule to this Act, or

8 (c) is a national of a Member State and has been awarded a qualification in medicine by a competent body or authority designated for that purpose by a Member State, pursuant to any Directive adopted by the Council of the European Communities, or

9 (d) satisfies the Council that he has undergone such courses of training and passed such examinations as are specified for the purposes of this section in rules made by the Council, or

10 (e) any person entitled to be registered pursuant to an order made under section 26 of the Medical Practitioners Act, 1927,

11 shall, on making application in the form and manner determined by the Council and on payment of the appropriate fee, be registered in the register."

12 Subsection (2)(d) is the crucial one for the purpose of this appeal.

13 S. 28 provides for provisional registration. The effect of that section is that the holder of a primary qualification (i.e. a Bachelor of Medicine and Surgery of the National University of Ireland or of Trinity College, or a Licentiate of the Royal College of Physicians in Ireland or of the Royal College of Surgeons in Ireland) can be registered only by way of provisional registration until and unless he or she has been granted a certificate of experience. This certificate can only be obtained after a successful completion of employment in a residential medical capacity in one or more hospitals approved by the Council for the period or periods prescribed by the Council.

14 S. 29 provides for temporary registration and is in the following terms:-

"29(1) Where the Council is satisfied -"

(a) that a person, who is not otherwise entitled to registration, is or intends to be in the State temporarily for the purpose of employment in the practice of medicine in a hospital approved of by the Council for the purpose of this section, and

(b) that such 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, the Council may, subject to subsection (2) of this section, and upon such person's making application in the form and manner determined by the Council and on payment of the appropriate fee, temporarily register such person in the register for such period as the Council may determine.

15 (2) The Council may extend a period determined under subsection (1) of this section for such further period or periods as the Council may determine, provided that the aggregate of such periods shall not exceed five years."

16 Upon the termination of his first period of temporary registration, the applicant remained in this country, and between 1978 and 1984 worked in a number of hospitals in pursuance of certificates of temporary registration granted to him by the Council under s. 29. During that period he also attended a number of postgraduate courses and was awarded (inter alia) a diploma in tropical medicine and hygiene by the School of Tropical Medicine of the University of Liverpool, a diploma in child health by the National University of Ireland, and a Licentiate in midwifery by the Rotunda Maternity Hospital in Dublin. He also became an Irish citizen on the 13th February 1984.

17 The certificate of temporary registration which he received in respect of the period from the 1st January 1984 to the 30th June 1984 exhausted the maximum period of five years prescribed by s. 29(2). On the 7th February 1984 the applicant wrote to the Council requesting a certificate of unlimited temporary registration. No such certificate could be granted to him, but his letter was treated by the Council as referring to full registration under the Act of 1978. On the 20th February 1984 the Registrar to the Council wrote to the applicant stating the requirements for full registration and stating that his medical qualification did not entitle him to apply for it. The applicant again wrote...