Cahill v Dental Council

• Jurisdiction: Ireland
• Judge: Mr. Justice McCracken
• Judgment Date: 15 June 2001
• Neutral Citation: [2001] IEHC 97
• Judgment citation (vLex): [2001] 6 JIC 1502
• Court: High Court
• Date: 15 June 2001

[2001] IEHC 97

THE HIGH COURT

CAHILL v. DENTAL COUNCIL

IN THE MATTER OF DENTISTS ACT1985

AND IN THE MATTER OF SECTION 41(3) THEREOF

AND IN THE MATTER OF AN APPLICATION OF A REGISTERED DENTIST

BETWEEN

RONAN CAHILL

APPLICANT

AND

THE DENTAL COUNCIL

RESPONDENT

Citations:

DENTISTS ACT 1985 S38(1)

DENTISTS ACT 1985 S13(2)(b)

DENTISTS ACT 1985 S39(1)

DENTISTS ACT 1985 S40(1)

DENTISTS ACT 1985 S40(2)

DENTISTS ACT 1985 S40(3)

DENTISTS ACT 1985 S40(7)

DENTISTS ACT 1985 S41(1)

M, RE (A DOCTOR) 1984 IR 479

DENTISTS ACT 1985 S41

DENTISTS ACT 1985 S40

O LAOIRE V MEDICAL COUNSEL UNREP KEANE 27.1.1995

Synopsis

PROFESSIONS

Dentists

Professional misconduct - Disciplinary procedures - Whether conditions imposed by governing body justified - Whether applicant guilty of professional misconduct - Whether conclusions drawn by council warranted - Dentists Act, 1985 section 13(2)(b) (2000/579Sp - McCracken J - 15/6/01)

Cahill v Dental Council

A number of findings had been made by the respondent in relation to treatment carried out by the applicant and as a result conditions had been imposed on the applicant’s practice. The applicant appealed to the High Court. McCracken held that some of the conclusions drawn by the respondent were warranted whilst others were not and accordingly made adjustments to the conditions imposed.

JUDGMENT of

Mr. Justice McCracken

1 delivered the 15th day of June, 2001.

INTRODUCTION

2 The Dental Council was established under the Dentists Act1985to oversee the registration and control of persons engaged in the practice of dentistry, and included in its remit are certain disciplinary procedures. As part of these procedures the Act set up a Fitness to Practice Committee. The statutory provisions relative to these proceedings are:-

"38(1): The Council or any person may apply to the Fitness to Practice Committee for an enquiry in to the fitness of a registered dentist to practice dentistry on the grounds of:-"

(a) his alleged professional misconduct, or

(b) his alleged unfitness to engage in such practice by reason of physical or mental disability.

3 And the application shall, subject to the provisions of this Act, be considered by the committee established by the Council under Section 13(2)(b) of this Act (in this Act referred to as the "Fitness to Practice Committee").

4 (3): Where an application for an inquiry is made under this section and the Fitness to Practice Committee, after consideration of the application, is either of opinion that there is a prima facie case for holding the enquiry or .......

The following shall have effect:-

5 (a) The Fitness to Practice Committee shall proceed to hold the inquiry.

6 (b) The registrar, or any other person with the leave of the Fitness to Practice Committee shall present to that committee the evidence of alleged professional misconduct…

7 (c) On completion of the inquiry, the Fitness to Practice Committee shall embody its findings in a report to the Council specifying therein the nature of the application and the evidence laid before it and any other matters in relation to the registered dentist which it may think fit to report including its opinion, having regard to the contents of the report, as to:-

8 (i) The alleged professional misconduct of the registered dentist.

39(1): Where the registered dentist:-

9 (a) has been found by the Fitness to Practice Committee, on the basis of an inquiry and report under Section 38 of the this Act, to be guilty of professional misconduct.... The Council may decide that the name of such person should be erased from the register or from the Register of Dental Specialists, as the case may be, or that, during a period of specific duration, registration of his name and the register concerned should not have effect.

10 40(1) The Counsel, following an inquiry and report by the Fitness to Practice Committee under Section 38 of this Act, may decide to attach such conditions as it thinks fit to the retention in any register maintained under this Act of a person whose name is entered in such register.

11 (2): On making a decision under this Section, the Council shall forthwith send by prepaid post to the person to whom the decision relates, at his address as stated in the register, a notice in writing stating the decision, the date thereof and the reasons therefor.

12 (3): A person to whom a decision under this Section relates may, within the period of 21 days beginning on the date of the decision, apply to the High Court for cancellation of the decision and if he so applies:-

13 (a) The High Court, on the hearing of the application, may

14 (i) cancel the decision, or

15 (ii) declare that it was proper to make a decision under this Section in relation to such person and (as the Court may think proper) direct the Council to attach such conditions as the Court thinks proper to the retention of the name of such person in any register maintained under this Act, or

16 (iii) give such other directions to the Council as the Court thinks proper.

17 (7) The Council may at any time remove in whole or in part the conditions attached to the retention of the name of any person in any register maintained under this Act.

18 41(1): The Council, following an inquiry and report by the Fitness to Practice Committee under Section 38 of this Act into the conduct of a person whose name is entered in any register maintained under this Act may, on receipt of the report of that committee, if it so thinks fit, advise, admonish or censure such person in relation to his professional conduct."

19 The procedures to be followed on an appeal to the High Court have been Clearly set out by Finally P., as he then was, inRe: M., a Doctor (1984) I.R. 479 at page 483 where he said:-

"For these reasons I have come to the following conclusions. Upon the making by a Practitioner of an application to the High Court under either Section 46 or 47, to cancel a decision of the Council, the onus of proving the alleged misconduct of the Practitioner rests on the Council - as does the onus of establishing that the decision made by the Council with regard to the appropriate penalty is correct. Notwithstanding the use of the expression "cancel the decision" in Sections 46 and 47, I am satisfied that the procedure does not constitute a mere appeal from the combined decisions of the committee and of the Council but is an entire trial of the issues involved"

20 It is accepted by Mr. Feeney S.C. on behalf of the Respondent that the onus does rest on it, and further that standard of proof is proof beyond reasonable doubt. At the commencement of this hearing an application was made on behalf of the Applicant to amend his Notice of Motion to include a claim that the report of the Fitness to Practice Committee to the Respondent in the present case is so deficient in material particulars that it could not form a proper basis for the Respondent's decision. I allowed the amendment on certain terms, but it seems quite clear to me that, as this is a complete rehearing, I am not concerned with the findings of the Fitness to Practice Committee or the factual basis upon which penalties were imposed on the Applicant in the present case. I have to determine these matters on the evidence before me, and not on the evidence before the Fitness to Practice Committee.

BACKGROUND TO THE CASE

21 The complaints against the Applicant arose from his treatment of an eight year old patient (hereinafter called "Alec"). Alec had previously been treated in a local Health Board Clinic for dental problems and had become extremely upset and unco-operative, and refuse to return to the clinic for further treatment. He was in need of two fillings and probably the removal of a tooth, and was going to need future orthodontic treatment. His mother was advised by the Health Board Clinic to take him to a private practitioner who might have better facilities for dealing with a difficult child.

22 The Applicant's practice is a long established family practice in which the principal practitioners are the Applicant, his father and his uncle, all of whom are also qualified medical doctors. Alec's father had many years earlier as a child attended the practice and at his suggestion an appointment was made for the Applicant to see Alec on 22nd October, 1996 for an initial assessment. He duly attended at the Applicant's surgery with both his parents. Slightly differing accounts of what took place are given by Alec's parents and by the Applicant, but certain facts are either agreed or have in my opinion been established beyond reasonable doubt in relation to that attendance. These are:-

23 1. Alec's parents were very anxious that any procedures to be carried out should not be frightening or traumatic to him, particularly in view of the future orthodental treatment which he would need.

24 2. To this end, they wanted Alec to be, in their words,"asleep."

25 3. They did not understand, nor was it explained to them by the Applicant, the distinction between sedation and general anaesthesia. I am satisfied, however, that they believed that the treatment that Alec was going to get would take place at a time when he was unconscious.

26 4. Alec's mother wished to be present during the procedure or at least until Alec was unconscious.

27 5. The Applicant examined Alec briefly and may have taken wing byte X rays, although this is disputed by Alec's parents. In view of the nature of the onus of proof, I think I must assume in the Applicant's favour that he did take X rays, and that they have since become mislaid.

28 6. The Applicant took a medical history of Alec, including the fact that he suffered from asthma and eczema.

29 7. There was no discussion or mention of intravenous sedation or indeed of how the Applicant proposed to put Alec asleep as...