Barry v Medical Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Charleton
• Judgment Date: 02 March 2007
• Neutral Citation: [2007] IEHC 74
• Docket Number: [No. 464 SP/2006]
• Court: High Court
• Date: 02 March 2007

[2007] IEHC 74

THE HIGH COURT

[No. 464 SP/2006]

BARRY v MEDICAL COUNCIL

IN THE MATTER OF THE MEDICAL PRACTITIONERS ACT, 1978

DR. JAMES BARRY

APPELLANT

v.

THE MEDICAL COUNCIL

RESPONDENT

MEDICAL PRACTITIONERS ACT 1978

BARRY v MEDICAL COUNCIL 1998 3 IR 368

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

BARRY v IRELAND 2005 ECHR 865

MEDICAL PRACTITIONERS ACT 1978 S46

MEDICAL PRACTITIONERS ACT 1978 PART V

M, IN RE 1984 IR 479

M v MEDICAL COUNCIL 1984 IR 485

K v BORD ALTRANAIS 1990 2 IR 396

O'LAOIRE v MEDICAL COUNCIL UNREP KEANE 27.1.1995 2000/21/7913

MEDICAL PRACTITIONERS ACT 1978 S46(1)(a)

MEDICAL PRACTITIONERS ACT 1978 S48

DPP v MEEHAN UNREP CCA 24.7.2006 2006 IECCA 104

MILLETT-JOHNSTON v THE MEDICAL COUNCIL UNREP MORRIS 12.1.2001 2001/15/4322

VIDEO RECORDINGS ACT 1989 S19

VIDEO RECORDINGS ACT 1989 S20

MEDICAL COUNCIL GUIDE TO ETHICAL CONDUCT & BEHAVIOUR 6ED 2004 S3.11

MEDICAL PRACTITIONERS ACT 1978 S46<

PROFESSIONS

Medical profession

Disciplinary proceedings - Medical Council - Appeal from finding of fitness to practise committee - Definition of professional misconduct - Allegations of sexual impropriety - Standard of proof - Whether criminal law as regards corroboration applied - Re M, a Doctor v Medical Council [1984] 1 IR 471; M v Medical Council [1984] 1 IR 485; K v An Bord Altranais [1990] 2 IR 396; O'Laoire v Medical Council (Unrep, Keane J, 27/01/1995); Millet-Johnston v Medical Council (Unrep, Morris P, 12/1/2001) applied; People (DPP) v Meehan [2006] IECCA 104, [2006] 3 IR 468 considered - Medical Practitioners Act 1978 (No 4), s 46 - Decision of respondent affirmed, erasure of appellant's name from register of medical practitioners ordered (2006/464 SP - Charleton J - 2/3/2007) [2007] IEHC 74

Barry v Medical Council

JUDGMENT of

1 Mr. Justice Charleton delivered on the 2nd day of March, 2007

Introduction

2 1. Up to 1995, Dr. James M. Barry, who is the appellant in this case, had practised medicine in C. city for about 30 years. Then, a complaint was made to the Medical Council which claimed that he had engaged in improper conduct with a patient. A number of other complaints followed. I am concerned with eight of these. In July, 1995, the Medical Council convened its Fitness to Practice Committee who, on receiving relevant documents, decided that there was a prima facie case for holding an enquiry into the conduct of Dr. Barry. There followed an order by this Court on 27 ^th October, 1995, restraining him from practising medicine pending the outcome of the enquiry. On 9 ^th April, 1996, certain summonses alleging criminal conduct were issued against him. These concerned essentially tangential matters; being charges brought in relation to items found in a search of his house and practice premises. These particular charges were struck out in July of the same year. On 11 ^th November, 1996, the Fitness to Practice Committee rejected a request from Dr. Barry to hold the inquiry into his conduct in public. A judicial review proceeding challenging that decision followed. This meant that the enquiry of the Fitness to Practice Committee was put on hold. In December, 1997 the Supreme Court dismissed Dr. Barry's application for judicial review against a decision of the Medical Council not to hold the inquiry into his alleged conduct in private; Barry v. The Medical Council [1998] 3 I.R. 368.

3 2. In the meanwhile, on 30 ^th October, 1997, Dr. Barry had been arrested in respect of an allegation of sexual assault against a patient. Other charges followed. Those proceedings were delayed. As it had become clear that sexual assault charges would be pursued, the Medical Council properly stayed its proceedings until these had been determined. There was a delay in the prosecution of the charges. Dr. Barry brought a case before the European Court of Human Rights. In it he claimed that there had been gross and inexcusable delay by the prosecution. Article 6 of the European Convention on Human Rights entitled him to a "hearing within a reasonable time" in the determination of any criminal charge against him. On 15 ^th December, 2005, the European Court of Human Rights unanimously held that there had been a violation of Dr. Barry's Article 6 rights; Barry v. Ireland, application number 18273/04. That was the end of the criminal proceedings.

4 3. In consequence, in early 2006, the Medical Council reactivated the existing proceedings. On 11 ^th May, 2006, the Department of Foreign Affairs wrote to Dr. Barry's solicitor referring to his case before the European Court of Human Rights. The letter stated:-

"As you will be aware, the court in its judgment held that the State is to pay your client, within three months from the date on which the judgment becomes final in accordance with Article 44.2 of the Convention (i.e. by 15 ^th June, 2006), the sums of €8,000 in respect of non-pecuniary damage and €7, 000 in respect of the legal costs and expenses of his Convention application. In accordance with the court's judgment, I now enclose a cheque payable to your client in the sum of €15,000."

5 4. On 11 ^th, 12 ^th and 13^th July, 2006, the Fitness to Practice Committee of the Medical Council sat and enquired into complaints arising against Dr. Barry as to his treatment of eight particular patients. In a report of 2 ^nd August, 2006, that committee found Dr. Barry guilty of professional misconduct with eight patients. On 12 ^th September, 2006, the Medical Council ordered the erasure of Dr. Barry's name from the register of medical practitioners. On 28 ^th September, 2006, he issued a special summons appealing that decision under s. 46(4) of the Medical Practitioners Act, 1978. I have read with care the notice of appeal and accompanying affidavit. Complaints are made by Dr. Barry in relation to the manner of the hearing and the credibility of the witnesses, among other matters. I have had particular regard to these grounds of appeal in the conduct of the hearing, which I conducted in February, 2007. I have not read the determination of the Fitness to Practice Committee as I felt it would be improper to do so. The hearing before me was conducted by both sides being given the opportunity to adduce sworn oral evidence. Some few exhibits, consisting of search warrants and video tapes, were also referred to, having been properly proven by witnesses. Dr. Barry cross-examined all of the witnesses. At the end of the case for the Medical Council he was given the option of either giving evidence or addressing argument to the court. He chose to address argument to the court. This judgment results from that hearing.

Procedures

6 5. The definitive analysis as to the proper manner of discharging this court's function pursuant to part 5 of the Medical Practitioners Act, 1978, was given by Finlay P. in Re: M, a Doctor v. The Medical Council and The Attorney General [1984] 1 I.R. 479. It is useful, in this context, to repeat the analysis of the relevant provisions of the Act given by that judge from p. 481 of the report:-

7 2 "1. Under s. 45 either the Council or any person may seek from the Committee an enquiry into the conduct of a registered medical practitioner on the grounds of his alleged professional misconduct.

8 2. On receiving such an application, the Committee may decide that there is not a prima facie case and so report to the Council; in that event, the Council may either proceed no further or, notwithstanding that view, direct the holding of an enquiry. If the Committee themselves have decided that there is a prima facie case or if they have been so directed by the Council, they hold an enquiry upon due notice to the registered medical practitioner, including the nature of the evidence proposed to be considered at the enquiry, and he has an opportunity of being represented and appearing at the hearing.

9 3. In carrying out the enquiry, the Committee have the powers, rights and privileges vested in the High Court or a judge thereof on the hearing of an action in respect of the enforcement of the attendance of witnesses and the compelling of production of documents, and witnesses appearing before them have the same immunities and privileges as witnesses before the High Court.

10 4. Upon. the completion of the enquiry, the Committee report to the Council, which considers that report. If the Committee have found the practitioner to be guilty of professional misconduct, the Council may do any of the following things-

11 a ( a) Under s. 46 it may decide that the name of the practitioner should be erased from the register.

12 b ( b) Under the same section it may decide that, during a specified period, the registration of the practitioner's name in the register should have no effect.

13 c ( c) Under s. 47 it may decide to attach such conditions as it thinks fit to the retention in any register of a person whose name is entered there.

14 d ( d) In addition to, or in substitution for, any of their other powers, it may advise, admonish or censure the practitioner in relation to his professional conduct.

15 5. In the event of the decision of the Council being either of the two decisions under s. 46 (erasure or suspension from the register) or in the event of it being a decision under s. 47 to attach conditions to the retention of the practitioner's name in the register, the practitioner has a right to apply, within 21 days from the date of the decision, to the High Court for cancellation of the decision. Upon the hearing of such application, the High Court, in the case of a decision by the Council under s. 46, may make one of three orders. It can-

a ( a) cancel the decision,

16 b ( b) confirm the decision and direct the erasure of the name from the register, or

17 c ( c) confirm the decision and suspend the registration of...