Barry v Medical Council

• Jurisdiction: Ireland
• Judgment Date: 01 January 1998
• Date: 01 January 1998
• Docket Number: [1996 No. 369 J.R.; S.C. No. 80 of
• Court: Supreme Court

High Court

Supreme Court

[1996 No. 369 J.R.; S.C. No. 80 of 1997]

Barry v. Medical Council

James M. Barry

Applicant

and

The Medical Council and The Fitness to Practise Committee of the Medical Council

Respondents

Cased mentioned in this report:-

Diennet v. France (1995) 21 E.H.R.R. 554.

In re M., a Doctor [1984] I.R. 479.

M. v. The Medical Council [1984] I.R. 485.

Weber v. Switzerland (1990) 12 E.H.R.R. 508.

Constitution - Statute - Interpretation - Tribunal - Fair procedures - Medical practitioner - Inquiry into allegations of professional misconduct - Decision to hold inquiry in private - Whether discretion existed - Whether discretion properly exercised - Whether right to public inquiry existed - Nature of inquiry - Role of registrar - European Convention on Human Rights and Fundamental Freedoms - Medical Practitioners Act, 1978 (No. 4), ss. 45, 46, 47 and 51 - Constitution of Ireland, 1937, Articles 34 and 40.

Judicial review.

The facts have been summarised in the headnote and are fully set out in the judgment of Costello P.,infra.

On the 13th December, 1996, the Supreme Court (Hamilton C.J., Barrington and Murphy JJ.), on appeal from the decision of the High Court (Geoghegan J.) dated the 25th November, 1996, granted leave to the applicant to apply by way of originating notice of motion for an order of certiorari quashing the decision of the respondents to hold the inquiry into the alleged professional misconduct of the applicant in private. The notice of motion was filed on the 8th January, 1997.

The application was heard on the 28th January, 1997.

The applicant filed a notice of appeal on the 5th March, 1997. The appeal was heard by the Supreme Court (Hamilton C.J., O'Flaherty, Denham, Barrington and Keane JJ.) on the 16th December, 1997.

Article 34.1 of the Constitution provides:-

"Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public."

Article 40.3.1 of the Constitution provides:-

"The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen."

The Medical Council ("the Council") was established by s. 6 of the Medical Practitioners Act, 1978. The Fitness to Practise Committee ("the Committee") was established pursuant to s. 13(1) and (2)(b).

Section 2 of the Act of 1978 provides that the chief officer of the Council shall be known as the Registrar. Section 45 provides,inter alia:-

"(1) The Council or any person may apply to the Fitness to Practise Committee for an inquiry into the conduct of a registered medical practitioner on the grounds of -

• (a) his alleged professional misconduct . . .

and the application shall, subject to the provisions of this Act, be considered by the Fitness to Practise Committee.

• (5) The findings of the Fitness to Practise Committee on any matter referred to it and the decision of the Council on any report made to it by the Fitness to Practise Committee shall not be made public without the consent of the person who has been the subject of the inquiry before the Fitness to Practise Committee unless such person has been found, as a result of such inquiry, to be -

  • (a) guilty of professional misconduct, or

  • (b) unfit to engage in the practice of medicine because of physical or mental disability,

as the case may be."

The applicant, a registered medical practitioner, sought to quash the decision of the Committee of the Council made in the course of an inquiry under the Act of 1978 into his alleged professional misconduct to hold the inquiry in private on the grounds that it wasultra vires and void. Prior to that inquiry, the Council had applied to the High Court (Costello P.) pursuant to s. 1, for an order that for a specified period the registration of the applicant's name on the medical register would have no effect. The court, in granting the order sought, also allowed the Council to make a public statement about the inquiry into the alleged professional misconduct of the applicant.

The applicant claimed that the right to fair procedures conferred by Article 40.3 of the Constitution required that the Committee's proceedings should be held in public except when evidence of a confidential nature relating to the doctor/patient relationship was being given.

He also submitted that, although the European Convention on Human Rights and Fundamental Freedoms was not part of Irish domestic law, article 6(1) thereof guaranteed a right to a public hearing and that the court, in giving effect to fair procedures in the inquiry held in this case, should be guided by internationally accepted norms enshrined in the Convention and should apply them when considering the procedures adopted by the Committee. Furthermore, the court should, it was submitted, recognise these norms when determining the standards of fairness which should receive constitutional recognition.

The applicant further claimed that a public hearing was necessary to protect him against misconduct by the Council and its representatives. In particular, it was alleged that the relationship between the Registrar and the Committee was such that there was no objective separation of the functions of prosecutor and adjudicating tribunal and that the procedures adopted prior to the Committee's decision were unfair with the result that the applicant did not obtain an impartial hearing.

Held by Costello P., in refusing the relief sought, 1, that the Committee had properly construed the Act of 1978 by holding that it had a discretion as to whether or not the hearing in this case should be in public or in private.

2. That the effect of the Act of 1978 was that:-

• (a) the findings of the Committee had no legal effect on the applicant's right to practise medicine;

• (b) the Council's decision on the Committee's findings had no legal effect on the applicant's right to practise until confirmed by the High Court, and

• (c) the High Court, on application by the applicant, had power to cancel the decision or vary it. Even where no such application was made the Council's decision required the confirmation of the High Court.

The determination of the dispute in this case, therefore, was made by the High Court sitting in public and hearing all the evidence rather than merely exercising an appellate jurisdiction.

In re M., a Doctor [1984] I.R. 479 and M. v. The Medical Council[1984] I.R. 485 considered.

3. That the Committee had validly exercised its discretion in accordance with the requirements of the Constitution in that it had adopted the fair procedures provided by the Act of 1978 and as required by Article 40.3. Therefore, its decision was notultra vires and no reasonable person could consider that the acts complained of by the applicant could have prejudiced the impartiality of the Committee.

4. That, furthermore, the Committee had correctly applied the principles contained in article 6(1) of the European Convention on Human Rights to the facts of this case and, therefore, its proceedings were not unfair for failing to apply internationally accepted terms.

5. That the proceedings in question did not constitute a trial but were an inquiry in which the Registrar's role was to present the evidence rather than that of prosecutor. There was no unfairness in the Registrar, as chief executive of the Council, employing the Council's solicitor to assist him in the presentation of the evidence to the Committee which had also retained its own independent legal advisor as legal assessor.

6. That the attendance by the Registrar's solicitor at some of the meetings of the Committee prior to the holding of the inquiry was necessary for the purpose of making the practical arrangements for the hearings and did not in any way prejudice the Committee's impartiality or constitute an unfair procedure. Similarly, the fact that the submissions were made to the Committee by counsel instructed by a solicitor who had acted as legal advisor to the Council for many years did not affect the Committee's impartiality.

7. That, given the nature of the complaints against the applicant and the risk that the proceedings might not take place if the hearing was held in public, there was a strong probability that a decision to hold the inquiry in public would prejudice the interests of justice. This amounted to special circumstances, as recognised by the Convention, where publicity would prejudice the interests of justice.

8. That, in reaching this conclusion, neither the Committee nor the court was prejudging the veracity of the evidence to be heard nor failing to give to the applicant the benefit of a presumption of innocence but was merely applying a procedural rule to the facts of the case as was permitted by the Constitution.

9. That the case-law of the European Court of Human Rights had established:-

• (i) that article 6(1) of the Convention did not require that all stages of proceedings in which rights are determined should be held in public, and

• (ii) that there was no breach of article 6(1) in circumstances where, as in this case, there was an appeal to an appellate court from a disciplinary tribunal which had sat in private provided the appellate court sat in public and had jurisdiction to determine questions of fact as well as law.

Diennet v. France (1995) 21 E.H.R.R. 554 and Weber v. Switzerland (1990) 12 E.H.R.R. 508 considered.

Held by the Supreme Court (Hamilton C.J., O'Flaherty, Denham, Barrington and Keane JJ.), in dismissing the applicant's appeal, 1, that the Committee had a discretion to conduct its proceedings in private.

2. That the purpose of s. 45(5) of the Act of 1978 was to protect the reputation of practitioners who had not been found guilty of professional misconduct or unfit to engage in the practice of medicine...