Hemat v The Medical Council

• Jurisdiction: Ireland
• Judge: Mr. Justice William M. Kechnie
• Judgment Date: 11 April 2006
• Neutral Citation: [2006] IEHC 187
• Court: High Court
• Date: 11 April 2006

[2006] IEHC 187

THE HIGH COURT

[No. 19901 P/2004]

HEMAT v MEDICAL COUNCIL

BETWEEN

RAMADAN HEMAT

PLAINTIFF

AND

THE MEDICAL COUNCIL

DEFENDANT

COMPETITION ACT 2002 S4

COMPETITION ACT 2002 S5

EC TREATY ART 81

EC TREATY ART 82

EC TREATY ART 86

MEDICAL PRACTITIONERS ACT 1978 S45

MEDICAL PRACTITIONERS ACT 1978 PART I

MEDICAL PRACTITIONERS ACT 1978 PART II

MEDICAL PRACTITIONERS ACT 1978 PART III

MEDICAL PRACTITIONERS ACT 1978 PART IV

MEDICAL PRACTITIONERS ACT 1978 PART V

MEDICAL PRACTITIONERS ACT 1978 PART VI

MEDICAL PRACTITIONERS ACT 1978 S6

MEDICAL PRACTITIONERS ACT 1978 S9

MEDICAL PRACTITIONERS ACT 1978 S9(1)(f)

MEDICAL PRACTITIONERS ACT 1978 S11

MEDICAL PRACTITIONERS ACT 1978 S15

MEDICAL PRACTITIONERS ACT 1978 S25

MEDICAL PRACTITIONERS ACT 1978 S26

MEDICAL PRACTITIONERS ACT 1978 S27

MEDICAL PRACTITIONERS ACT 1978 S46

MEDICAL PRACTITIONERS ACT 1978 S45

MEDICAL PRACTITIONERS ACT 1978 S47

MEDICAL PRACTITIONERS ACT 1978 S51

MEDICAL PRACTITIONERS ACT 1978 S54

MEDICAL PRACTITIONERS ACT 1978 S63

MEDICAL PRACTITIONERS ACT 1978 S65

MEDICAL PRACTITIONERS ACT 1978 S69

MEDICAL PRACTITIONERS ACT 1978 S69(2)

PAVLOV & ORS 2000 ECR I-6451

WOUTERS v ALGEMENE RAAD VAN DE NEDERLANDSE ORDE VAN ADVOCATEN 2002 ECR I-5777

CARRIGALINE COMMUNITY TELEVISION BROADCASTING CO LTD v MIN FOR TRANSPORT 1997 1 ILRM 241

SAT FLUGGESELLSCHAFT v EUROCONTROL 1994 5 CMLR 208 1994 ECR I-43

POUCET v ASSURANCES GENERALES DE FRANCE 1993 ECR I-637

KENNY v DENTAL COUNCIL UNREP GILLIGAN 27.2.2004 2004/26/5935

EC TREATY ART 81

PHILIPS v MEDICAL COUNCIL 1991 2 IR 115

BUREAU NATIONALE INTERPROFESSIONAL DU COGNAC v CLAIR 1985 ECR 391

COMMISSION v ITALIAN REPUBLIC 1998 ECR I-3851

CENTRO SERVIZI SPEDIPORTO SRL v SPEDIZIONI MARITTIMA DELL GOLFO SRL 1995 ECR I-2883

CALI & FIGLI v SERVIZI 1997 ECR I-1547

EEA TREATY ART 1 PROTOCOL 22

COMPETITION ACT 2002 S3

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

FEDERATION FRANCAISE DES SOCIETES D'ASSURANCE 1995 ECR I-4013

MONTI COMPETITION IN PROFESSIONAL SERVICES: NEW LIFE & CHALLENGES 21.3.2003

RE RAI v UNITEL 1978 OJL 157/93

BANCHERO 1995 ECR I-4663

SPANISH COURIER SERVICES, IN RE 1991 4 CMLR 560 1990 OJL 233

ALBANY INTERNATIONAL v SBT 1999 ECR I-5751

BRENTJENS 1999 ECR I-6121

DRIJVENDE BOKKENS 1999 ECR I-6121

CONSTITUTION OF THE NETHERLANDS ART 134

DONOVAN & ORS v ESB & ANOR 1997 3 IR 573

CASEY v MEDICAL COUNCI 1999 2 IR 534

MEDICAL PRACTITIONERS ACT 1978 S69(1)

MEDICAL PRACTITIONERS ACT 1978 S69(3)

EAST DONEGAL CO-OP v AG 1970 IR 317

MEDICAL COUNCIL (ELECTION OF MEMBERS) REGULATIONS 1978 SI 197/197

EC TREATY ART 85(1)

DENTAL ACT 1985 S53

COMPETITION LAW

Undertaking

Guidelines - Ethical code of practice - Whether association of undertakings - Whether agreement between undertakings - Need to regulate professions - Kenny v Dental Council [2004] IEHC 105 (Unrep,Gilligan J, 27/2/2004) followed - Claim dismissed (2004/19901P - McKechnie J -11/4/2006) [2006] IEHC 187 Hemat v Medical Council

The plaintiff instituted judicial review proceedings, challenging the application to him of "A Guide to Ethical Conduct and Behaviour" issued by the defendant. The Judge dealing with the leave application decided that issues regarding matters of community law ought to be pursued by way of plenary summons and accordingly these proceedings were issued. The plaintiff having alleged that the defendant was an undertaking or association of undertakings, claimed that certain provisions of the Guide and their application to him, constituted a breach of ss. 4 and 5 of the Act of 2002 and/or Articles 81, 82 and 86 of the EC Treaty. It was agreed between the parties that the matter of whether the defendant was an undertaking or an association of undertakings should be tried as a preliminary issue.

Held by McKechnie J. in favour of the defendant: That notwithstanding the fact that a majority of the members of the defendant council were undertakings in their own right the defendant in issuing the Guide was not an undertaking or an association of undertakings for the purposes of competition law. In publishing the Guide, the defendant was at all times acting solely in the public interest as it was statutorily obliged to do so. Furthermore, in enforcing the provisions of the Guide, the defendant was not engaged in economic activity.

Reporter: L.O'S

1 JUDGMENT delivered by Mr. Justice William M. Kechnie on 11th day of April, 2006 .

The Parties:

2 1. The plaintiff in these proceedings is a qualified medical doctor. The defendant is a statutory body having been established pursuant to the Medical Practitioners Act 1978, as amended, and is entrusted with the powers, duties and responsibilities, specified thereunder. In purported discharge of these responsibilities, the Council has from time to time, usually every five years, issued what it describes as "A Guide to Ethical Conduct and Behaviour". As a member of the medical profession, Dr. Hemat is bound by these guidelines. Alleging that a certain advertisement circulated by him was in breach of this code, the Council, following complaint, initiated a procedure which resulted in disciplinary proceedings being taken, and in a sanction being imposed on him. Being of the view, that under both domestic and European law, this Guide and its application to him is unlawful, Dr Hemat instituted judicial review proceedings, and in respect thereof, sought leave from O'Neill (J.) on 24th November, 2003. On the hearing of that application, the learned judge took the view that insofar as matters of community law were concerned, the same should more properly be pursued by way of plenary summons. Hence the institution of the present proceedings.

The Preliminary Issue:

3 2. In the Statement of Claim which followed, the plaintiff, having alleged that the defendant Council was an undertaking or an association of undertakings, claimed that certain provisions of the Guide and their application to him, constituted a breach of ss. 4 and 5 of the Competition Act, 2002 and/or articles 81, 82 and 86 of the EC Treaty. Having put in issue the assertion that the Council was an undertaking or an association of undertakings, within the meaning of these provisions, both the plaintiff and the defendant agreed that this matter should firstly be determined before the substantive action be embarked upon. Accordingly, the agreed question for my consideration is "Whether the Medical Council is an undertaking and/or an association of undertakings for the purposes of ss. 4 and 5 of the Competition Act, 2002 and/or articles 81 and 82 of EC". This judgment therefore is concerned solely with that issue.

The General Background:

4 3. In or about 1985 the plaintiff first became registered with the defendant council, and since then has continued to be so registered. In 1989 he became a Fellow of the Royal College of Surgeons. Over several years thereafter, he has worked in a number of Irish hospitals performing a variety of functions. In the course of this work it is claimed that he has acquired significant experience in the "conventional" medical fields of urology and oncology. In addition it is said that he also has a "practice" in the area of integrated medicine which includes clinical orthomolecularism.

5 As a result of a period of unemployment Dr. Hemat decided in October 2002 to advertise his skills as a self employed practitioner of integrated medicine. This type of medicine consists of a combination of conventional medicine and clinical orthomolecularisation. Under the heading "The Functional Medical Clinic - clinical orthomolecularism — integrated medicine" he circulated or caused to be circulated to the public an advertisement to this effect. This advertisement in its full form is reproduced at paragraph 12 of this judgment.

6 4. In January 2003, following the receipt of a complaint about this advertisement, the defendant council in correspondence with the plaintiff referred him to section "D" of its Guide on Ethical Conduct and Behaviour. On 7th May, 2003 the plaintiff was advised that the Fitness to Practice Committee considered that there was a prima facie case for the holding of an inquiry, into and concerning his conduct in publishing this advertisement (s. 45 of the 1978 Act). That inquiry, which he did not attend, found him guilty of professional misconduct and from the report of the Committee dated the 31st July, 2003, it would appear that its findings were based on a breach of certain specific provisions of the guidelines, which provisions are outlined at para11 of this judgment. Ultimately, the sanction imposed consisted of his name being removed from the register for one month and certain conditions being attached to his ongoing registration. He was also censured regarding professional misconduct and was directed to comply with the provisions of the Guide.

7 In essence therefore he was penalised for breaching the advertising provisions of this code and it is the validity of those provisions which is challenged in these proceedings.

The Regulatory System:

8 5. The Regulation of medical practice in this Country is governed by the Medical Practitioners Act 1978, as amended. This Act is divided into six parts, with Part I containing Preliminary and General matters. Part II provides for the establishment of the Medical Council with Part III setting out the rules for the establishment of a Register and for the registration of medical practitioners thereon. Part IV deals with Education and Training and the role of the Council in respect thereof; Part V, which is headed "Fitness to Practice", makes provision for the regulation of conduct and discipline within the profession with Part VI containing the Miscellaneous Section. Finally for the purposes of the Act, the relevant Minister is now...