Medical Council v A Medical Practitioner

• Jurisdiction: Ireland
• Judge: Mr. Justice David Barniville
• Judgment Date: 28 February 2023
• Neutral Citation: [2023] IEHC 171
• Court: High Court
• Docket Number: [2022 No. 248 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

A Medical Practitioner

Respondent

[2023] IEHC 171

[2022 No. 248 MCA]

THE HIGH COURT

Professional ethics and regulation – Medical practitioners – Medical Practitioners Act 2007 –Application to suspend respondent – Respondent offering to give undertakings to Court as alternative

Facts: The applicant Council sought an order under s 60 of the Medical Practitioners Act 2007 to direct the suspension of the respondent from the Register of Medical Practitioners and ancillary orders. The respondent sought to provide certain undertakings to the Court as an alternative to the grant of the order. The matter now came before the Court to determine.

Held by the Court, that the application for the order would be refused, and the undertakings offered by the respondent accepted. The Court was satisfied that the applicant was entitled, and indeed obliged, to bring the application under s 60. However, the Court was satisfied the undertakings offered to the Court by the respondent were sufficient to protect the public interest. The parties were invited to make further submissions as would be necessary for making a final order.

REDACTED

JUDGMENT of Mr. Justice David Barniville, President of the High Court, delivered on the 28 ^th February, 2023

Index

1. Introduction	2
2. Factual Background and History	3
3. The Council's Section 60 Application	12
4. Section 60 of the 2007 Act	18
5. Legal Principle Applicable to Section 60 Applications	19
6. Brief Summary of Parties' Submissions	23
(A) The Council	23
(B) The Respondent	25
7. Decision on Application	28
8. Summary of Conclusions	34

1. Introduction

1 . This is my judgment on an application brought by the Medical Council (the “Council”) for an order pursuant to s. 60 of the Medical Practitioners Act 2007 (the “2007 Act”) directing that the respondent doctor's name in the Register of Medical Practitioners maintained by the Council under the 2007 Act, be suspended until steps or further steps are taken under Part 7 and, if applicable, Parts 8 and 9 of the 2007 Act. The Council also seeks orders that the respondent be prohibited from engaging in the practice of medicine until such steps or further steps have been taken, an order that the Council be at liberty to communicate the terms of the order to certain persons or bodies, an order directing that the Council be at liberty to respond accurately to any request from any individual or body regarding the respondent's registration status and an order that the Council be at liberty to reflect any order granted on the Council's public-facing register.

2 . The Council's application first came before the court on 7 ^th October, 2022, on an ex parte basis. However, the respondent was represented by solicitors and counsel on that date who confirmed that the respondent was prepared to provide an undertaking to the court in identical terms to the undertaking given by the respondent to the Council at its meeting on 11 ^th August, 2022 and confirmed by him in writing on 17 ^th August, 2022. The undertaking given by the respondent to the Council (orally at the meeting on 11 ^th August, 2022 and then in writing on 17 ^th August, 2022), was that the respondent would not examine female patients in the absence of a chaperone pending the matter being further considered by the Council in the context of s. 60 of the 2007 Act. When the matter first came before the court on 7 ^th October, 2022, the respondent confirmed, through his solicitors and counsel, that he was prepared to give the same undertaking to the court pending the determination of the Council's s. 60 application and, thereafter, pending the determination of any fitness to practise proceedings brought against him. The respondent has confirmed that undertaking to the court on the subsequent occasions the matter was before the court and it remains in place as of the date of this judgment.

3 . Following the exchange of affidavits, the Council's application was heard over the course of a number of days in November 2022, and judgment was reserved. The Council pressed for an order under s. 60 of the 2007 Act suspending the respondent's registration and for the other orders summarised at para. 1 above. The respondent opposed that application and indicated that he was prepared to continue the undertaking previously given to the court until any fitness to practise proceedings were determined. In response, the Council submitted that, for various reasons, an undertaking would not be appropriate for the protection of the public but that if the court was disposed, as a matter of principle, to deal with the Council's application by accepting an undertaking or undertakings from the respondent, the Council wished to be heard further on the terms of such undertakings.

4 . Having carefully considered all of the relevant evidence and the helpful submissions made on behalf of the Council and on behalf of the respondent, I have concluded that on balance, as a matter of principle, I am disposed to accepting undertakings from the respondent instead of suspending his registration under s. 60 and prohibiting him from engaging in the practice of medicine until any fitness to practise proceedings are concluded. I will hear the Council and the respondent as to the precise terms of the undertakings which I will require to be given by the respondent to the court. They will, however, include, at the very least: undertakings not to examine female patients in the absence of a chaperone; adherence to a strict examination consent policy requiring an initial general consent to treatment by the patient together with specific consent to a specific examination being carried out; a commitment to provide to the Council and any relevant committee of the Council a regular update in relation to the pending criminal proceedings against the respondent; and a commitment to immediately inform the Council of any further allegations made against him and of the nature of such allegations. Having heard from the Council and from the respondent, I may require additional undertakings.

5 . I will also permit the Council to inform the various persons and bodies referred to at para. 3 of the originating notice of motion of the fact and terms of the undertakings to be given to the court, as well as various other consequential orders including orders permitting the Council to respond accurately to any request from any individual or body regarding the respondent's registration status as well as permitting the Council to reflect the fact of the undertakings on its public facing register.

6 . I set out in this judgment in some detail the reasons for my decision to accept, as a matter of principle, undertakings from the respondent as opposed to making an order under s. 60 of the 2007 Act suspending the respondent and an order prohibiting him from engaging in the practice of medicine pending the determination of the fitness to practise proceedings.

2. Factual Background and History

7 . The Council is a statutory body established under Part II of the Medical Practitioners Act 1978 and continued in being by s. 4(1) of the 2007 Act (as amended). It establishes and maintains a register of medical practitioners (the “register”). The respondent qualified as a doctor in ███ and having worked abroad and in Ireland has worked as a consultant in his particular specialism in Ireland since the mid-1990s. ████ ███████████████████████████████████████████████████████ He remains registered in the specialist division of the register and continues to do private work in his field at a private clinic (the “clinic”). The facts which have led to the Council's application are not in dispute.

8 . On 21st May, 2021, the respondent submitted his Annual Retention of Registration Form (“ARAF”) to the Council. In answer to question 7 of the form, which asked whether he had “ever been convicted of any criminal offences in or outside the State” or whether he was “aware of any criminal investigations in process against [him]?”, the respondent answered “no”. However, on 8th June, 2021, the respondent wrote to the Council's Professional Standard Section stating that he had “inadvertently answered Q. 7 incorrectly”. He wrote:

“████████████████████████████████████████ ██████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████.”

9 . By letter dated 16 ^th June, 2021, the Council acknowledged receipt of that letter and informed the respondent that the Council would consider at a meeting on 7 ^th July, 2021, whether it would make a complaint against the respondent pursuant to s. 57 of the 2007 Act. The respondent was invited to make a further submission, if he wished, for consideration at that meeting. Following a query from the respondent's then solicitors as to what aspect of s. 57 was to be considered by the Council, the Council confirmed in a letter dated 22 ^nd June, 2021, that the Council would consider at its meeting on 7 ^th July, 2021, whether or not to make a complaint to the Council's Preliminary Proceedings Committee (“PPC”) in relation to the respondent under s. 57(1) of the 2007 Act. The respondent was asked to provide any relevant information in relation to the information he disclosed to the Council on 8 ^th June, 2021, which he felt should be considered by the Council at that meeting.

10 . The respondent's then solicitors wrote to the Council on 1st July, 2021. In that letter, they stated that complaints had been made to An Garda Síochána ████████ and that the respondent had been interviewed and cooperated fully in relation to those complaints...