M. v The Medical Council

• Jurisdiction: Ireland
• Court: High Court
• Judgment Date: 21 May 1984
• Docket Number: [1984 No. 2912P]
• Date: 21 May 1984

High Court

[1984 No. 2912P]

M. v. The Medical Council

M

and

The Medical Council and The Attorney General

Cases mentioned in this report__

¹ In re M., a Doctor— see p. 479, ante.

² In re the Solicitors Act, 1954 [1960] I.R. 239.

³ Huddart, Parker & Co. v. Moorehead (1909) 8 C.L.R. 330.

⁴ Lynham v. Butler (No. 2) [1933] I.R. 74.

⁵ Shell Co. of Australia v. Federal Commissioner of Taxation [1931] A.C. 275.

⁶ Attorney General for Australia v. The Queen [1957] 2 W.L.R. 607.

⁷ Prentis v. Atlantic Coast Line (1908) 211 U.S. 210.

⁸ R. (Wexford C.C.) v. Local Government Board [1902] 2 I.R. 349.

⁹ East Donegal Co-Operative v. The Attorney General [1970] I.R. 317.

¹⁰ O'Brien v. Bord na Móna— see p. 255, ante.

Constitution - Statute - Validity - Tribunal - Fair procedures - Natural justice - Professions - Disciplinary code - Medical practitioners - Publication of finding of tribunal - Review by High Court - Personal rights - Vindication - Medical Practitioners Act. 1978 (No. 4), ss. 45-48 - Constitution of Ireland, 1937, Articles 34, 40.

Plenary Summons.

On the 9th April, 1984, the plaintiff, a medical practitioner, issued a plenary summons in which he claimed a declaration that the provisions of ss. 45-48 of the Medical Practitioners Act, 1978, were repugnant to the provisions of the Constitution of Ireland, 1937; a declaration that Part V of the Act, in so far as it was repugnant to the Constitution, was invalid; a declaration that a decision of the first defendant made on the 14th December, 1983, was null and void; and an order restraining the first defendant from erasing the plaintiff's name from the general register of medical practitioners. On the 22nd December, 1983, the plaintiff had presented a petition to the High Court in which he sought (inter alia) an order under s. 46 of the Act of 1978 cancelling the said decision of the first defendant; certain preliminary issues had been determined and certain procedural directions had been given by the High Court (Finlay P.) in those proceedings: see In re M., a Doctor.¹— see p. 479, ante. One of the rulings in those proceedings was that the hearing by the High Court of an application under s. 46 of the Act of 1978 constituted an entire trial of the issues involved and was not a mere appeal from the combined decisions of the Fitness to Practise Committee and the Medical Council. Having issued his plenary summons, the plaintiff delivered a statement of claim on the 9th April, 1984. The defences of the first and second defendants were delivered respectively on the 26th April and the 8th May, 1984.

Article 34, s. 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 37 of the Constitution provides__ "Nothing in this Constitution shall operate to invalidate the exercise of limited functions and powers of a judicial nature, in matters other than criminal matters, by any person or body of persons duly authorised by law to exercise such functions and powers, notwithstanding that such person or such body of persons is not a judge or a court appointed or established as such under this Constitution."

Article 40, s. 3, sub-s. 2, of the Constitution provides__ "The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate life, person, good name, and property rights of every citizen."

Sections 45 and 46 of the Medical Practitioners Act, 1978, provide__

"45. —(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, or,

• (b) his fitness to engage in the practice of medicine by reason of physical or mental disability,

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

(2) Where an application is made under this section and the Fitness to Practise Committee, after consideration of the application, is of opinion that there is not sufficient cause to warrant the holding of an inquiry, it shall so inform the Council and the Council, having considered the matter, may decide that no further action shall be taken in relation to the matter and shall so inform the Committee and the applicant, or it may direct the Committee to hold an inquiry into the matter in accordance with the provisions of this section.

(3) Where an application for an inquiry is made under this section and the Fitness to Practise Committee, after consideration of the application is either of opinion that there is a prima facie case for holding the inquiry or has been given a direction by the Council pursuant to subsection (2) of this section to hold the inquiry, the following shall have effect

• (a) the Committee shall proceed to hold the inquiry,

• (b) the Registrar, or any other person with the leave of the Fitness to Practise Committee, shall present to the Committee the evidence of alleged professional misconduct or unfitness to practise by reason of physical or mental disability, as the case may be,

• (c) on completion of the inquiry, the 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 medical practitioner which it may think fit to report including its opinion, having regard to the contents of the report, as to—

  • (i) the alleged professional misconduct of the registered medical practitioner or

  • (ii) the fitness or otherwise of that practitioner to engage in the practice of medicine by reason of his alleged physical or mental disability

as the case may be.

• (4) When it is proposed to hold an inquiry under subsection (3) of this section the person who is the subject of the inquiry shall be given notice in writing by the Registrar sent by pre-paid post to the address of that person as stated in the register of the nature of the evidence proposed to be considered at the inquiry and that person and any person representing him shall be given the opportunity of being present at the hearing.

• (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.

• (6) The Fitness to Practise Committee shall for the purpose of an inquiry held under subsection (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 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 of documents.

(7) Where —

• (a) a person on being duly summoned to attend before the Fitness to Practise Committee makes default in attending, or

• (b) a person, being in attendance as a witness before the Fitness to Practise Committee, refuses to take an oath lawfully required by the Fitness to Practise Committee to be taken, or to produce any document in his power or control lawfully required by the Fitness to Practise Committee to be produced by him or to answer any question to which the Fitness to Practise Committee may lawfully require an answer, or

• (c) a person, being in attendance before the Fitness to Practise Committee, does anything which, if the Fitness to Practise Committee were a court of law having power to commit for contempt, would be contempt of court,

such person shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £500.

(8) A witness before the Fitness to Practise Committee shall be entitled to the same immunities and privileges as if he were a witness before the High Court.

(9) If the Fitness to Practise Committee require the medical records of a patient of any registered medical practitioner to be produced for the purposes of any inquiry conducted by that Committee, such records shall not be made available to the Committee, without the consent of the patient concerned, unless the Committee specifically direct the registered medical practitioner concerned to produce such records.

46. —(1) Where a registered medical practitioner—

• (a) has been found, by the Fitness to Practise Committee, on the basis of an inquiry and report pursuant to section 45 of this Act, to be guilty of professional misconduct or to be unfit to engage in the practice of medicine because of physical or mental disability, or,

• (b) has failed to pay a retention fee charged by the Council under section 25 of this Act after the Council had not less than two months previously by notice in writing sent by pre-paid post to the person, at his address as stated in the register, requested payment of the fee on more than one occasion,

the Council may decide that the name of such person should be erased from the register or from the Register of Medical Specialists as the case may be or that during a period of specified duration...