Medical Council v A Medical Practitioner

• Jurisdiction: Ireland
• Judge: Mr. Justice Mícheál P. O'Higgins
• Judgment Date: 11 October 2023
• Neutral Citation: [2023] IEHC 679
• Court: High Court
• Docket Number: RECORD NO 2023 / 54 MCA

In the Matter of Section 60 of the Medical Practitioners Act 2007

Between

Medical Council

Applicant

and

A Medical Practitioner

Respondent

[2023] IEHC 679

RECORD NO 2023 / 54 MCA

THE HIGH COURT

Medical practitioner – Suspension – Balance of justice – Applicant seeking an order suspending the respondent from the Register of Medical Practitioners pending the finalisation of a rape and sexual assault complaint made against him – Whether the balance of justice in the case favoured declining the interim suspension order sought

Facts: The applicant, the Medical Council, applied to the High Court for an order pursuant to s. 60 of the Medical Practitioners Act 2007 suspending the respondent, a medical practitioner, from the Register of Medical Practitioners, pending the finalisation of a rape and sexual assault complaint made against him by a complainant. It was accepted by the respondent that the underlying allegations were very serious as they included allegations of very serious sexual misconduct against a person who was said to be a patient and also involved allegations of serious impropriety and dishonesty. There was no real dispute but that if the underlying allegations were found to be proven, the sanction imposed was likely to be the respondent’s erasure from the Medical Register. It was beyond dispute that if the underlying allegations were proven, the alleged conduct would be considered fundamentally incompatible with the practice of medicine. Accordingly, in this case, the main focus was the apparent strength of the case against the practitioner concerned.

Held by O’Higgins J that the principles to be applied in a s. 60 application are well established in case law and he adopted the summary of the relevant legal principles set out within two judgments of Barniville P in Medical Council v Bukhari [2022] IEHC 503 and Medical Council v A Medical Practitioner [2023] IEHC 171. O’Higgins J noted that: (i) a significant interval of time would elapse before any criminal trial was held or a fitness to practice hearing took place; (ii) no criminal charges had been brought and the respondent had not been arrested or questioned by An Garda Siochana; (iii) the Director of Public Prosecutions had not directed charges; (iv) there was a paucity of information before the court concerning the progress of the Garda investigation; (v) were criminal charges never to be brought, or were such charges to be brought but ultimately fail at a criminal trial, the respondent would suffer a significant injustice were a s. 60 order to be made, depriving him of revenue from the medical practice for the period concerned, and causing him significant reputational damage in the interim; (vi) the constitutionally enshrined rule known as the presumption of innocence ought to be given real and practical effect; (vii) the mere fact that no charges had been preferred did not prevent the respondent from relying upon the constitutional presumption; (viii) the respondent had to date complied with the undertakings that he previously gave to the High Court; (ix) the respondent denied the rape and attempted rape allegations in full and he was entitled to the presumption of innocence with respect to such allegations; (x) while the suggested inconsistencies and “row–backs” being relied upon by the applicant involved issues that were material, they were not dispositive of the question of guilt or innocence; (xi) the allegations made by the complainant did not involve allegations of clinical incompetence or immediate danger to the public such as to give rise to the more usual concerns for patient safety and protection that might arise; (xii) the respondent’s employer said that she had worked alongside the respondent for more than fifteen years and had always found him to be entirely professional, courteous and understanding in his dealings with patients and staff; and (xiii) the respondent had never been the subject of any adverse finding of the Medical Council or any equivalent body in any other country.

O’Higgins J held that the balance of justice in the case favoured declining the interim suspension order sought and instead putting in place a strict regime of undertakings and conditions.

Application refused.

Appearances:

Hugh McDowell BL instructed by Fieldfisher Ireland LLP for the applicant. The respondent appeared as a litigant in person.

APPROVED Judgment of Mr. Justice Mícheál P. O'Higgins delivered on the 11 ^th October 2023

Introduction

1 . This is an application by the Medical Council for an order pursuant to s. 60 of the Medical Practitioners Act 2007 (the “2007 Act”) suspending the respondent from the Register of Medical Practitioners, pending the finalisation of a rape and sexual assault complaint made against him by a complainant.

2 . In February of 2023 the complainant – whom I shall call Ms. A – made several extremely serious allegations against the respondent, including that he raped her at her home on the 15th of December 2022 and attempted to rape her on two separate occasions on the 30th of December and 31st of December 2022. The respondent denies all of the allegations and is contesting the Medical Council's application for the suspension order.

3 . Before I address the substance of the application, I think it would be useful to make some general observations on the nature of the application. Firstly, s. 60 of the 2007 Act provides as follows:

“ 60.—(1) The Council may make an ex parte application to the Court for an order to suspend the registration of a registered medical practitioner, whether or not the practitioner is the subject of a complaint, if the Council considers that the suspension is necessary to protect the public until steps or further steps are taken under this Part and, if applicable, Parts 8 and 9.

(2) An application under subsection (1) shall be heard otherwise than in public unless the Court considers it appropriate to hear the application in public.

(3) The Court may determine an application under subsection (1) by—

(a) making any order it considers appropriate, including an order directing the Council to suspend the registration of the registered medical practitioner the subject of the application for the period specified in the order, and

(b) giving to the Council any direction that the Court considers appropriate”.

4 . In an application such as this, the court's task is to form an assessment on whether the public interest in ensuring that members of the public are protected from a medical practitioner who poses a risk to their care and welfare, requires that, pending the determination of the complaint in a fitness to practice hearing, the practitioner concerned should be suspended and prevented from carrying on his/her practice. It is important to note that since a s. 60 order is by its nature an interim suspension order, the court hearing the s. 60 application is not deciding the underlying complaint; does not hear evidence from the protagonists as to the substance of the allegations; does not resolve conflicts of evidence; and does not make findings of fact.

5 . Rather, the court's role is to carry out a balancing exercise on the competing interests that arise in the case and decide whether the practitioner should be suspended pending the investigation and determination of the complaint. In determining whether to grant the interim order that is sought, the court endeavours to strike a balance between the paramount need to protect the public and the rights of the practitioner to practice medicine, earn a livelihood and not be subjected to reputational damage or injustice.

6 . The necessity for the court to avoid making findings on the substantive allegations is reinforced in a case such as the present where the application for the suspension order is based on allegations of criminal wrongdoing that may later be the subject of criminal proceedings.

7 . This may give rise to something of a tension or dilemma because the caselaw says the court in a s.60 application is required to form a view on the apparent strength of the case against the practitioner, and yet should avoid trespassing upon the role of the fitness to practice hearing or trial jury, and therefore must avoid being seen to make findings of fact or resolve conflicts on the evidence.

8 . The principles to be applied in a s. 60 application are well established in case law and I gratefully adopt the summary of the relevant legal principles set out within two recent judgments of Barniville P. in Medical Council v. Bukhari [2022] IEHC 503 (delivered on the 29th of July 2022) and Medical Council v. A Medical Practitioner [2023] IEHC 171 (delivered on the 28th of February 2023). I will come back to those legal principles later on in this judgment.

9 . The reason I have referred to the necessity for the judge hearing the s. 60 application to form a view on the apparent strength of the case against the medical practitioner concerned is because one of the leading cases in the area indicates that this is one of the three key factors to be considered. The Supreme Court per Barron J. in O'Ceallaigh v. An Bord Altranais [2000] 4 IR 54 held that the factors to be considered by the Council before applying for orders under s. 60 were:

“(1) the nature of the complaint upon which the application for an inquiry … is based;

(2) the apparent strength of the case against [the relevant practitioner]; and

(3) whether in the event of an adverse finding, the appropriate sanction would be to “strike off” the [practitioner], either permanently or for a definite period.”

(See also Medical Council v. F.C.M [2018] IEHC 616 per Kelly P. at para. 40, and

Medical Council v. Waters [2021] IEHC 252 per Irvine P. at para. 24).

10 . It should be noted that, while O'Ceallaigh was decided in the context of the Nurses Act 1985, later case law indicates that the same principles apply...