Hemat v Medical Council

JurisdictionIreland
JudgeMr. Justice Fennelly
Judgment Date29 April 2010
Neutral Citation[2010] IESC 24
CourtSupreme Court
Docket Number[S.C. No. 348
Date29 April 2010

[2010] IESC 24

THE SUPREME COURT

Murray C.J.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

Record No. 348/2006
Hemat v Medical Council
BETWEEN/
RAMADAN HEMAT
PLAINTIFF/APPELLANT

AND

THE MEDICAL COUNCIL
DEFENDANT/RESPONDENT

MEDICAL PRACTITIONERS ACT 1978 S69(2)

MEDICAL PRACTITIONERS ACT 1978 S9

MEDICAL PRACTITIONERS ACT 1978 S45

MEDICAL PRACTITIONERS ACT 1978 PART V

TREATY OF ROME ART 81

COMPETITION ACT 2002 S5

TREATY OF ROME ART 82

PHILIPS v MEDICAL COUNCIL & ORS 1991 2 IR 115 1991/5/1236

KENNY (T/A DENTURE EXPRESS) v DENTAL COUNCIL & ORS UNREP GILLIGAN 27.2.2004 2004/26/5935 2004 IEHC 29

COMPETITION ACT 2002 S4

HOFNER & ELSER v MACROTRON GMBH 1991 ECR I-1979 1993 4 CMLR 306

SAT FLUGGESELLSCHAFT MBH v EUROPEAN ORGANISATION FOR THE SAFETY OF AIR NAVIGATION (EUROCONTROL) 1994 ECR I-43 1994 5 CMLR 208

DIEGO CALI & FIGLI SRL v SERVIZI ECOLOGICI PORTO DI GENOVA SPA (SEPG) 1997 ECR I-1547 1997 5 CMLR 484

PAVLOV & ORS v STICHTING PENSIOENFONDS MEDISCHE SPECIALISTEN 2000 ECR I-6451 2001 4 CMLR 1

WOUTERS & ORS v ALGEMENE RAAD VAN DE NEDERLANDSE ORDE VAN ADVOCATEN 2002 ECR I-1577 2002 4 CMLR 27 2002 AER (EC) 193

COMPETITION ACT 2002 S3(1)

ALBANY INTERNATIONAL BV v STICHTING BEDRIJFSPENSIOENFONDS TEXTIELINDUSTRIE 1999 ECR I-5751 2000 4 CMLR 446

BRENTJENS HANDELSONDERNEMING BV v STICHTING BEDRIJFSPENSIOENFONDS VOOR DE HANDEL IN BOUWMATERIALEN 1999 ECR I-6025 2000 4 CMLR 566 2001 ICR 774

MAATSCHAPPIJ DRIJVENDE BOKKEN BV v STICHTING PENSIOENFONDS VOOR DE VERDOER- EN HAVENBEDRIJVEN 1999 ECR I-6121 2000 4 CMLR 599

DENTISTS ACT 1985

CRIMINAL PROCEEDINGS AGAINST DOULAMIS 2008 ECR I-1377 2008 5 CMLR 4

DIP SPA v COMUNE DI BASSANO DEL GRAPPA 1995 ECR I-3257 1996 4 CMLR 157

COMPETITION

Association of undertakings

Economic activity - Medical Council - Fitness to Practise Committee - Restrictions on advertising - Advertisement by plaintiff - Functions of defendant - Composition of defendant - Whether defendant association of undertakings for purpose of competition law - Whether defendant's rules restricting advertising amount to ban on advertising restricting or distorting competition - Whether finding by Committee has anti-competitive effect - Cali and Figli v SEPG (Case C-343/95) [1997] ECR I-01547, Pavlov and Others (Cases C-180/98 to C-184/98) [2000] ECR I-06451, Wouters and Others (Case C-309/99) [2002] ECR I-1577, Kenny v Dental Council [2004] IEHC 29, [2009] 4 IR 321 and Philips v Medical Council [1991] 2 IR 115 approved - Medical Practitioners Act 1978 (No 4), ss 9 and 69 - Competition Act 2002 (No 14), s 4 - European Economic Community Treaty 1957, Articles 81 and 82 - Plaintiff's appeal allowed (348/2006 - SC - 29/4/2010) [2010] IESC 24

Hemat v Medical Council

Facts: The appellant had advertised his skills as a medical practitioner and was found guilty of professional misconduct by the Medical Council, composed as it was at the time in accordance with the Medical Practitioners Act 1978, later amended. The question on appeal to the Supreme Court for resolution was whether the respondent Medical Council was an association of undertakings for the purposes of Competition law at the time when it disciplined the appellant for breach of ethnical rules. The appellant in his action against the Council alleged that it was an association of undertakings. The High Court had concluded that the Medical Council as not an association of undertakings.

Held by the Supreme Court per Fennelly J. (Murray CJ, Denham, Hardiman, Geoghegan JJ.), that the application of guidelines here was characteristic of the exercise of power in the public interest rather than an action taken in the economic sphere in protection of the interests of medical practitioners as undertakings. The advertising restrictions imposed by the ethical rules applied were predominantly motivated by considerations of the interests of patients which is in the public interest. They were only incidentally concerned with economic matters. It was clear that the Medical Council could not be considered to be an association of undertakings. The Court would dismiss the appeal and affirm the order of the High Court.

Reporter: E.F.

1

JUDGMENT of Mr. Justice Fennelly delivered the 29th day of April 2010.

2

Judgment delivered by Fennelly J [nem diss]

3

1. The question to be decided on this appeal from the High Court (McKechnie J) is whether the respondent, the Medical Council, was an association of undertakings for the purposes of competition law at the time when it disciplined the appellant for breach of ethical rules regarding advertising.

4

2. A principal plank of the appellant's case has always been that the Medical Council was, in the majority, composed, in accordance with the Medical Practitioners Act, 1978, of doctors carrying on medical practice and hence engaging in economic activity. The Medical Practitioners Act 2007 has radically altered the composition of the Medical Council. As a result, the question raised in this case is of largely historical importance and is of continuing interest only insofar as it affects the appellant.

5

3. In October 2002, the appellant advertised his skills as a self-employed practitioner of integrated medicine being a combination of conventional medicine with clinical ortho-molecularisation, a field of medical practice not conventionally practised in the state. He did so by circulating a leaflet entitled "The Functional Medical Clinic." The Fitness to Practice Committee of the Medical Council found the appellant guilty of professional misconduct in that he had breached provisions of the Council's "Guide to Ethical Conduct and Behaviour," which, for convenience I will call the "Ethical Guide." The Committee proposed to the Council that the appellant be struck off the register for a period of one month.

6

4. The appellant, in his action against the Council, invokes both national and European competition law. For that purpose, he alleges that the Medical Council is an "association of undertakings." The High Court set down for decision as a preliminary issue the question of whether the Council is an "association of undertakings." McKechnie J rejected the appellant's contention. In a comprehensive and reasoned judgment he held that the Medical Council was not an association of undertakings when it issued its Ethical Guide.

The Medical Council
7

5. The Medical Council was established pursuant to the Medical Practitioners Act, 1978 in succession to the Medical Registration Council. The following account is based on the legislation as it existed prior to the Act of 2007. The purpose of the Act is the regulation and supervision of the practice of medicine and medical education in the State. The Council maintains a register of medical practitioners. It is responsible for the discipline of members of the medical profession and, through its Fitness to Practice Committee, conducts inquiries into the conduct of practitioners, specifically where there are allegations of professional misconduct or of lack of fitness to practice. Section 69(2) of the Act of 1978 provides that:

"It shall be a function of the Council to give guidance to the medical profession generally on all matters relating to ethical conduct and behaviour."

8

6. In the exercise of that power, the Council published its Ethical Guide and revised it from time to time.

9

7. Section 9 of the Act provided for the membership of the Council, 25 in number. Eight members were to be appointed by the universities, the Royal College of Surgeons in Ireland and the Royal College of Physicians of Ireland. The Minister was to appoint one person to represent psychiatry and one to represent general medical practice. Ten were to be elected registered medical practitioners. Four were to be appointed by the Minister for Health, of which three were not to be registered medical practitioners. The general effect of section 9 was that a majority of the members of the Council would inevitably be engaged in whole or in part in the practice of medicine. It has been accepted, for the purposes of the present appeal that they were, for the most part, medical practitioners in private practice.

The Ethical Guide
10

8. The Medical Council issued from time to time "A Guide to Ethical Conduct and Behaviour." Its fifth edition was approved by the Council on 30 June 1998 and published in November 1998. Paragraph 15 in Section D of the Guide is entitled "The Media and Advertising." The following provisions are relevant for the purposes of the appeal:

11

2 "15.1 EDUCATING THE PUBLIC

12

Doctors have an important part to play in educating the public in medical matters and in disseminating medical knowledge. However, doctors must not imply that they have unique solutions to health problems. Nor should they use health promoting publicity to attract patients to their care or to enhance or to promote their own professional reputation. Doctors are reminded that if they work in a clinic that makes claim about special expertise not found elsewhere they will be held responsible for such claims being made.

13

3 15.2 INFORMATION FOR THE PUBLIC

14

Information given to the public should be expressed in a factual and lucid terms. It must never cause unnecessary public concern or personal distress nor should it raise unrealistic expectations.

15

4 15.3 ...

16

5 15.4 PUBLISHING A NAME

17

If a doctor's name is mentioned when talking to or writing in the media on social, ethical, political, or research aspects of medicine, he/she must take personal responsibility for the views expressed and establish the basis for them.

18

6 15.5 ADJUDICATION

19

In adjudicating on complaints concerning doctors and the media, the Council will consider whether the...

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4 cases
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