Medical Council v PAO

• Jurisdiction: Ireland
• Judgment Date: 01 April 2004
• Neutral Citation: [2004] IESC 22
• Date: 01 April 2004
• Docket Number: [2003 No. 173]
• Court: Supreme Court

[2004] IESC 22

THE SUPREME COURT

Denham J.

Murray J.

McGuinness J.

NO. 173/03

MEDICAL COUNCIL v. O. (P.A.)

IN THE MATTER OF S.51 OF THE MEDICAL PRACTITIONERS ACT, 1978 AND IN THE MATTER OF A REGISTERED MEDICAL PRACTITIONER, AND ON THE APPLICATION OF

BETWEEN/

THE MEDICAL COUNCIL

APPLICANT/APPELLANT

AND

P.A.O

RESPONDENT

Citations:

MEDICAL PRACTITIONERS ACT 1978 S51

MEDICAL PRACTITIONERS ACT 1978 S46

MEDICAL PRACTITIONERS ACT 1978 S47

MEDICAL PRACTITIONERS ACT 1978 S49

MEDICAL PRACTITIONERS ACT 1978 S51(3)

MEDICAL PRACTITIONERS ACT 1978 S45

MEDICAL PRACTITIONERS ACT 1978 S48

MEDICAL PRACTITIONERS ACT 1978 S46(3)(C)

MEDICAL PRACTITIONERS ACT 1978 S47(3)(C)

MEDICAL PRACTITIONERS ACT 1978 S49(3)(C)

RSC O.99

JUDICATURE (IRL) ACT 1877 S53

WYLIE'S JUDICATURE ACTS & THE RULE OF SUPERIOR COURTS (IRL) 1905 120

COURTS OF JUSTICE ACT 1924 S22

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S14

RSC O.99 r1

RSC O.125 r1

RSC O.99 r1(4)

RSC O99 r5(1)

AG, PEOPLE V BELL 1969 IR 24

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S14(2)

RSC 1962

COURTS (ESTABLISHMENT & CONSTITUTION) ACT 1961 S8

COURTS (ESTABLISHMENT & CONSTITUTION) ACT 1961 S9

BROWNE, STATE V FERAN 1967 IR 147

Synopsis:

- [2004] 2 IR 12 - [2004] 2 ILRM 161

The President of the High Court granted to the applicant a section 51 order on an ex parte basis against the respondent. The costs of the application were refused. Subsequently, the President granted a section 51 order on an interlocutory basis and again the question of costs was reserved. The President subsequently held that he did not have jurisdiction to make an order for costs. The applicant appealed that decision.

Held by the Supreme Court (Denham, Murray, McGuinness JJ) in allowing the appeal and remitting the matter to the President: That the absence of a reference to the issue of costs in s. 51 did not exclude the general law and rules as to costs. If the legislature intended that no costs orders were to be made in a s. 51 application it would have said so expressly. The High Court had jurisdiction under the law as set out in the Rules of the Superior Courts to determine the issue of costs in an application under s. 51 of the Act of 1978.

Reporter: L.O'S.

1 1st day of April, 2004 by Denham J.

2 1. This an appeal by Medical Council from the determination of Finnegan P. on 10 ^th March, 2003, that the court had no jurisdiction to make an order for costs in respect of the application of the Medical Council under s. 51 of the Medical Practitioners Act, 1978.

3 2. The background to the case is that on 25 ^thJune, 2002, a special summons was issued by the Medical Council seeking a s. 51 order against the respondent doctor, a complaint having been received from the Garda Siochána relating to the method in which the respondent was prescribing benzodiazepines to drug addicts. On 28 ^th June, 2002 the President of the High Court granted a s. 51 order on an ex parte basis. The costs of the application were reserved. There were further affidavits filed and on 15 ^th July, 2002, after submissions, the President of the High Court granted a s. 51 order on an interlocutory basis. The question of costs was reserved once again. Subsequently, there was a hearing by the Fitness to Practise Committee which found the respondent doctor guilty of misconduct on eighteen out of twenty nine allegations. In respect of the remaining eleven charges the Committee found that the facts were proven in some of them but those facts did not amount to misconduct. On 16 ^thDecember, 2000 the Medical Council decided to erase the respondent's name from the register. On 24 ^th February, 2003, on the application of the Medical Council, the learned President of the High Court directed the Council to erase the name of the respondent from the register. The Medical Council was awarded costs in relation to that application. On 10 ^th March, 2003 the special summons was listed before Finnegan P. so that the reserved costs on the s. 51 applications could be dealt with. The President held that he did not have jurisdiction to make such an order.

4 3. Section 51 of the Medical Practitioners Act, 1978states:

5 2 "(1) Whenever the Council is satisfied that it is in the public interest to do so, the Council may apply to the High Court for an order in relation to any person registered in any register maintained under this Act that, during the period specified in the order, registration of that person's name in that register shall not have effect.

6 (2) An application under this section may be made in a summary manner and shall be heard otherwise than in public.

7 (3) The High Court may make, in any application under this section, such interim or interlocutory order (if any) as it considers appropriate."

8 Section 51 is in Part V of the Medical Practitioners Act, 1978which is entitled "Fitness to Practise." Part V establishes a disciplinary system for registered medical practitioners.

9 4. The President of the High Court refused the order for costs on a literal construction of s. 51 of the Medical Practitioners Act, 1978. He stated that s. 46, 47 and 49 of the Act provide expressly for orders for costs while s. 51 does not. Further, he held that if a power to award costs arose it did so under s. 51(3) which does not relate to final orders and as costs are final orders it could not provide for orders for costs.

10 5. Section 51 is part of a statutory scheme in Part V of the Medical Practitioners Act, 1978, hereinafter referred to as the Act of 1978. It is part of a code relating to medical practitioners and their fitness to practise. It envisages certain procedures. Thus s. 45 provides for an inquiry by the Fitness to Practise Committee into the conduct of a registered medical practitioner. Section 46 provides for erasure or suspension from the register for professional misconduct, unfitness to practise or failure to pay a retention fee. Section 47 provides for the attaching of conditions for retention on the register. Section 48 gives powers to the Medical Council to advise, admonish or censure a person whose name is entered on the register. Section 49 enables the erasure from the register of a person convicted of an indictable crime, Section 51 provides for a "holding situation", where if the Medical Council is satisfied that it is in the public interest to do so the Council may apply to the High Curt for an order in relation to any person registered in any register maintained under the Act that during the period specified in the order registration of that person's name in the order in that register shall not have effect. It is an order usually sought pending an inquiry where it is in "the public interest so to do."

11 6. Section 46(3) (c), s. 47(3) (c) and s. 49(3) (c) each provide: "The High Court may direct how the costs of the application are to be borne." There is no such provision in s. 51.

12 7. The Medical Council submitted that the High Court erred in holding that power to award costs had to be found in s. 51(3). The Council submitted that a court has power to award costs unless it is expressly excluded by statute.

13 The court was referred to the history of the law on costs and to the current law. Counsel for the Medical Council submitted that the court has power to make an order for costs unless expressly excluded, that there is nothing in the Act of 1978 which displaced the general rule and O. 99 of the Rules of the Superior Courts, 1986. Also, he submitted that the inclusion of costs issues in some sections in the Act of 1978 did not deprive the court of its general power in others.

8. Decision

14 Section 51 of the Act of 1978 falls to be considered. Section 51 is in Part V of the Act which established a disciplinary code relating to registered medical practitioners. A scheme is set out in the legislation. Included in the scheme is the matter of costs in ss. 46, 47 and 49. Section 51 makes no express provision for costs.

15 An application for an order under s. 51, either ex parte for an interim order or, on notice, for an interlocutory order, is for a court order to create a "holding position" pending a final...