Eastern Health Board v Fitness to Practice Committee

JudgeMr. Justice Robert Barr
Judgment Date03 April 1998
Neutral Citation[1998] IEHC 210
Docket Number122JR/1997,[1997 No. 122 JR]
CourtHigh Court
Date03 April 1998







[1998] IEHC 210





Evidence; in camera proceedings; subsequent use of information given at in camera proceedings; proceedings relating to alleged sexual abuse of children; subsequent investigation by Fitness to Practice Committee into alleged misconduct of doctor making diagnoses of child sexual abuse; whether information introduced in or derived from in camera proceedings can be produced in subsequent proceedings before Fitness to Practice Committee; whether court has a discretion to impose terms concerning disclosure of such proceedings; whether subsequent proceedings must themselves be held in camera if using such information Held: There is no absolute embargo on disclosure of evidence given at in camera hearings; it is a contempt of court to make such disclosure without prior judicial authority; the court has a discretion to permit such disclosure, subject to such terms as it may think proper; disclosure will be ordered on terms that the subsequent proceedings of the Fitness to Practice Committee will be held in camera Eastern Health Board v. Fitness to Practice Committee of the Medical Council - High Court: Barr J. -03/04/1998- [1998] 3 IR 399


Mr. Justice Robert Barrdelivered the 3rd day of April, 1998.


This matter has come before the court by way of application for judicial review pursuant to the order of Laffoy J. made on 14th April, 1997 which provided, inter alia, that the applicant do have leave to apply for orders of Certiorari, Prohibition and Declarations regarding orders made in proceedings entitled The Medical Council and Dr. Kathleen Cecilia Moira Woods (Dr. Woods) on 20th December, 1996, whereby the applicant herein wasdirected to produce medical records in its possession relating to certain children - being children of parents referred to in this application as families R., F., S. and H., The grounds on which Laffoy J. made her order are those set forth at paragraph (e) in the applicant's statement grounding the application for judicial review and are as follows:-

"The respondent has exceeded its jurisdiction in purporting to direct the applicant herein to produce the medical records in the possession of the applicant in relation to the patients set out therein in that the said records relate to matters which were the subject matter of "in camera" proceedings before the Courts of this jurisdiction. The Rule of Law governing the conduct of "incamera" proceedings precludes the parties to such proceedings and/or any witnesses from being summoned to Court to give evidence at the said hearings and from discussing the contents of those proceedings with any third party, either during the course of the proceedings or at any time thereafter."


The facts relevant to this application are not in dispute and are contained in the affidavit of Paul Harrison, director of the Child Care and Family Support Services of the applicant, sworn on 25th March, 1997 as amplified in the affidavit of Brian V. Lee, registrar of the Medical Council, sworn on 27th May, 1997.


The Statement of Opposition filed on behalf of the respondent sets out the following grounds:-


2 "1. That a substantial proportion of the medical records in the possession of the applicant came into existence and were prepared otherwise than for the purpose of an "in camera" proceeding, and are accordingly in any event amenable to the orders of the 20th December, 1996.


2. That, if and insofar as there is a rule of law prohibiting the dissemination of material that is given in evidence or discussed in camera, it does not and cannot apply to material that was created outside the context of the "in camera" proceedings.


3. That, if and insofar as the applicant would otherwise be under a duty to retrain from furnishing any medical records in its possession, it is excused from that duty by virtue of the position of the respondent under the provisions of the Medical Practitioners Act, 1978and, in particular, Section 45 thereof.


4. That the duty of the applicant to comply with summonses issued by the respondent pursuant to Section 45(6) of the Medical Practitioners Act, 1978overrides any duty that it might otherwise be under not to divulge documents in its possession on the grounds stated.


5. That the applicant lacks locus standi in respect of the relief sought at paragraph D(2) to (5) of the Statement of Grounds.


6. That the respondent is both entitled and obliged to proceed with its Inquiry pursuant to Section 45 of the Medical Practitioners Act, 1978, and for the purposes of that Inquiry to obtain, disseminate, discuss and inquire to the extent necessary into relevant documentation, whether such documentation is in its possession or in the possession of a third party such as the applicant.


7. That the respondent is both entitled and obliged, pursuant to the provisions of the Medical Practitioners Act, 1978, for the purposes of its Inquiry to require the attendance before it of any relevant witness whether such witness previously gave evidence in the course of "in camera" proceedings or otherwise.


8. That the respondent is both entitled and obliged, pursuant to the provisions of the Medical Practitioners Act, 1978, for the purposes of its Inquiry to require any such witness to give evidence, whether or not this involves such a witness disclosing or discussing the details of an "in camera" proceeding or matters related thereto.


9. Without prejudice to the foregoing, that the mere fact of documentation having been discussed in the course of an "incamera" proceeding, or of a matter having been the subject matter of an "in camera" hearing, does not and cannot of itself mean that the same are subject to any prohibition of further discussion or inquiry.


10. The relief sought is inconsistent with the powers, rights and privileges of the Fitness to Practice Committee granted by Section 45 of the Medical Practitioners Act, 1978and the Fitness to Practice Committee has the same right and entitlement to direct the production of documents as the High Court.


11. That the respondent is entitled in its discretion to determine to hold its Inquiry in public and (without prejudice to that contention) was entitled in its discretion to determine to hold the Inquiry in public subject to the safeguards that it has imposed.


12. Such further or other grounds as may be notified."


The applicant (hereinafter called the E.H.B. or the Board) is a statutory health board having responsibility for the care of deprived children within its geographical area which includes the city and county of Dublin. The Medical Council (the Council) is a statutory body created by the Medical Practitioners Act, 1978(the Act) to provide, inter alia, for the registration and control of persons engaged in the practice of medicine. The Fitness to Practice Committee (the Committee) is a body established by the Council under Section 13(2)(b) of the Act to perform the functions of the Council under Part V of the Act which relate to, inter alia, investigation of the fitness of registered medical practitioners to practice their profession by reason of alleged professional misconduct or incompetence. Section 45 of the Act lays down the framework for an inquiry by the Committee into the conduct of a registered medical practitioner. Sub-section (6) is in the following terms:-

"(6) The Fitness to Practice Committee shall for the purpose of an inquiry held under Sub-section (3) of this section have the powers, rights and privileges vested in the High Court or a judge thereof on the hearing of an action in respect of-"

(a) the enforcement of the attendance of witnesses and their examination on oath or otherwise, and

(b) the compelling of the production of documents, and

(c) a summons signed by the Chairman of the Committee or by such other member of the Committee as may be authorised by the Committee for that purpose may be substituted for and shall be equivalent to any formal procedure capable of being issued in an action for enforcing the attendance of witnesses and compelling the production ofdocuments."


The first notice party, Dr. Woods, was at all material times a member of the medical staff attached to the Sexual Assault Treatment Unit of the Rotunda Hospital, Dublin. She is a specialist in the diagnosis and treatment of child sexual abuse. In paragraph 3 of his affidavit, Mr. Lee has deposed that:-

".......these proceedings relate to an Inquiry before the Fitness to Practice Committee of the Medical Council arising out of complaints made against Dr. Woods by parents of a number of children, all of which children were examined by her....... These children attended [the Rotunda Sexual Assault Treatment Unit] and in a number of cases, Dr. Woods came to the conclusion having examined the children that they hadbeen sexually abused by a relative. I say and believe that the central issue before the Inquiry will be the standard of clinical judgment and competence demonstrated by Dr. Woods in reaching these conclusions. It is important to bear in mind that these conclusions were not reached specifically for the purpose of "in camera" proceedings, although in a number of cases the conclusions made by Dr. Woods obviously led to a proceeding of that nature. Two of the children concerned are now of full age. All of the children have been involved in proceedings in the District Court or the High Court relating to alleged sexual abuse which, pursuant to statute, were heard in camera. Certain reports and records referred to therein would have come into existence independently of the proceedings in...

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