Medical Council v B

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice David Barniville
• Judgment Date: 21 December 2022
• Neutral Citation: [2022] IEHC 723
• Docket Number: [2021 No. 318 MCA]

In the Matter of Section 60 of the Medical Practitioners Act 2007 and in the Matter of a Registered Medical Practitioner and on the Application of the Medical Council

Between

Medical Council

Applicant

and

Syed Waqas Ali Bukhari

Respondent

[2022] IEHC 723

[2021 No. 318 MCA]

THE HIGH COURT

JUDGMENT of Mr. Justice David Barniville, President of the High Court, delivered on the 21 ^st December, 2022

Introduction

1 . This is my judgment on an application by Mediahuis Ireland Limited (“Mediahuis”) for various orders in the context of these proceedings brought by the Medical Council (the “Council”) against the respondent, Dr. Bukhari, pursuant to s. 60 of the Medical Practitioners Act 2007 (the “2007 Act”).

2 . Mediahuis seeks an order that the proceedings be heard in public pursuant to s. 60(2) of the 2007 Act as well as an order permitting Mediahuis to name and otherwise identify the respondent doctor.

Background to the Application

3 . It is necessary briefly to summarise the circumstances in which Mediahuis have brought this application.

4 . The Council brought an application for certain orders pursuant to s. 60 of the 2007 Act against the respondent in November 2021. Among the orders sought by the Council were orders directing that the registration of the respondent's name on the register of medical practitioners be suspended until further steps were taken pursuant to the provisions of Part 7 and, if applicable, Parts 8 and 9 of the 2007 Act. That application initially came before Irvine P. on 20 ^th December, 2021. On that date, certain undertakings were agreed between the Council and the respondent. Those undertakings were accepted by Irvine P. She directed that the application be listed against before the Court on 1 ^st July, 2022. When the application came before Irvine P. again on 1 ^st July, 2022, certain disclosures were made to the Court on behalf of the respondent, including the fact that he had breached one of the undertakings given by him to the Court on 20 ^th December, 2021. The respondent had been convicted by the District Court on 19 ^th May, 2022, for driving without a licence and insurance on 14 ^th February, 2022 (a matter of weeks after the undertakings had been given to the Court) and had received a sentence of five months imprisonment in respect of that offence, which the respondent was appealing. There was no dispute that that was a breach of one of the undertakings given by the respondent to the Court on 20 ^th December, 2021. Irvine P. was also informed on that date that, since the matter was last before the Court, the respondent had been convicted by the District Court of the offence of driving while disqualified and driving without insurance on 19 ^th July, 2021, for which he also received sentence of five months imprisonment and which he was also appealing. The respondent pleaded guilty to all of those offences.

5 . The Council's application was ultimately heard by me on 27 ^th July, 2022. I delivered an ex tempore judgment on 29 ^th July, 2022 (the “July judgment”). That judgment was published, although the name of the respondent was anonymised and certain personal details were redacted from the judgment. Reference should be made to that judgment for a more detailed account of the s. 60 application.

6 . During the course of the hearing of the Council's s. 60 application, it was indicated on behalf of the Council that, in the event that the Court was not prepared to make the orders sought by the Council on that application, the Council was prepared to accept certain further undertakings from the respondent. The undertakings provided by the respondent to the Court on 20 ^th December, 2021 are summarised at para. 31 of the July judgment. The further undertakings which the respondent was prepared to accept, as a fallback position and in the event that the Court was not prepared to grant the orders sought, are set out at para. 65 of the judgment. Essentially, they required that the respondent would, in summary:

• (1)(a) Notify any prospective employer of the existence of the complaint against him under the 2007 Act and the details of the undertakings given by him, and

  • (b) Notify the Professional Standards Department of the Council in advance of taking up employment of the details of the employer and consent to the Council's Health Committee engaging with the employer regarding the respondent's undertakings;

• (2) Consent to the Council reflecting on its public facing register the fact that the respondent had provided “health-related voluntary undertakings to the High Court” and stating that, if further information was sought, a request could be made to the Council's Professional Standards department; and

• (3) The Council was at liberty to communicate the terms of the undertakings given to various bodies, namely, the Council's Health Committee, the Council Preliminary Proceedings Committee (the “PPC”) and other committees within the Council.

7 . As explained at paras. 67 – 74 of the July judgment, I was just about satisfied that the balance which had to be drawn between the competing interests involved “just about and barely” tilted in favour of accepting those undertakings, which were agreed to by the respondent at the hearing, in place of making the s. 60 suspension order sought. At para. 72, I stated that I was “just about satisfied, and by the finest margin possible” that I should exercise my discretion to accept the undertakings provided by the respondent to the Council. I required those undertakings to be given on oath to the Court by the respondent. I also stated that it had to be clear to the respondent this was “very much a last chance” for him and that any breach of those undertakings would “almost inevitably lead a court to grant the orders sought by the Council” (para. 72).

8 . Finally, at para. 74 of the July judgment, I stated that I was prepared to accept the undertakings, provided the respondent gave them on oath. I further directed the respondent to provide the information requested of him by the Council's Health Committee as a matter of urgency. I directed that the matter would be listed for review on 7 ^th October, 2022. I gave the Council liberty to apply at short notice in the event of any failure to comply with the undertakings or any culpable failure to provide the outstanding information to the Council's Health Committee or to the PPC. I stated that, if it became necessary for the Council to apply to the Court in those circumstances, there was a “very real risk” that I would grant the s. 60 suspension order sought by the Council. I noted that I would, in any event, review the position on 7 ^th October, 2022 and would consider whether any other orders were required at that stage.

9 . The Council's application was listed for review on 7 ^th October, 2022. In the meantime, the respondent had confirmed the undertakings referred to in the July judgment on oath. Shortly before the matter was listed for review at 2 ^pm on 7 ^th October, 2022, by way of a hybrid hearing, Mark Tighe, a Sunday Independent journalist, attempted to attend the hearing remotely. However, he was not permitted to attend in circumstances where s. 60(2) of the 2007 Act, provides for a s. 60 application to be heard “otherwise than in public unless the Court considers it appropriate to hear the application in public”. The Council's s. 60 application was heard otherwise than in public by Irvine P. and, subsequently, by me. There had, by that stage, been no application to the Court for the matter to be heard in public. In any event, on 7 ^th October, 2022, the matter was adjourned until 11 ^th November, 2022. Directions were given, through the registrar, to Mediahuis that it should correspond with the parties notifying them of its intention to bring an application for the hearing of the s. 60 proceedings to be in public. I will come to that correspondence in a moment.

10 . In the period between 7 ^th October, 2022 and 11 ^th November, 2022, the Council's PPC had decided that there was a prima facie case to warrant further action being taken in relation to the complaint against the respondent and referred the complaint to the Council's Fitness to Practise Committee (the “FPC”). It was further indicated that it was the intention of the FPC to complete its consideration of the complaint within six months.

Correspondence before the Application

11 . Before bringing its application, Mediahuis wrote, through its in-house solicitors, to the Council's solicitors and to the respondent's solicitors informing them of its intended application to apply to the High Court for the further hearings in the s. 60 proceedings to be held in public. Those letters were sent on 19 ^th October, 2022. It was contended in those letters that the future hearings of the s. 60 proceedings should be held in public on the grounds that that was appropriate “in light of the nature of the complaint which is before the Medical Council, the respondent's sustained record of serious road traffic offences, and the respondent's continued offending since the s. 60 application has been before the Court”.

12 . The Council's solicitors replied on 25 ^th October, 2022, stating that it was ultimately a matter for the Court to determine whether it was appropriate to hear any applications pursuant to s. 60 of the 2007 Act in public and that the Council intended adopting a neutral position in respect of Mediahuis's intended application. The respondent's solicitors did not reply.

Mediahuis's Application

13 . Mediahuis issued a motion seeking the reliefs summarised earlier on 3 ^rd November, 2022. That motion was returnable to be heard prior to the review listing of the proceedings at 2 ^pm on 11 ^th November, 2022. On that date, directions were given for the exchange of further affidavits and submissions. Mediahuis's application was then listed for hearing on 7 ^th December, 2022.

14 . Mediahuis's...