Medical Council v T.M.

• Jurisdiction: Ireland
• Judge: Mr. Justice Kelly
• Judgment Date: 03 October 2017
• Neutral Citation: [2017] IEHC 548
• Docket Number: [2017 No. 116SP]
• Court: High Court
• Date: 03 October 2017

[2017] IEHC 548

THE HIGH COURT

Kelly P.

[2017 No. 116SP]

IN THE MATTER OF SECTION 71 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

T.M.

RESPONDENT

Professional Ethics & Regulation – Employment – Professional misconduct – Medical Practitioners Act 2007 – Private hearing – Public hearing – Common law power

Facts: The respondent was guilty of professional misconduct and his registration as a practitioner was cancelled on the recommendation of the Fitness to Practise Committee (FTPC). The respondent contended that the hearing of his confirmation of cancellation should have been heard in private and also sought directions of the Court whether it had the power under the Medical Practitioners Act 2007 to hear an application under s.76 of the 2007 Act otherwise than in public. The appellant arguedthat there was no implicit statutory entitlement to hear the s.76 application in private.

Mr. Justice Kelly P. held that the Act of 2007 did not authorise the Court to hear an application under s.76 otherwise than in public, whereas s.85 of the 2007 Act expressly conferred a jurisdiction on the FTPC to conduct a hearing in private. The Court, however, adjourned the hearing of the present case in line with the judgment of the Supreme Court in Gilchrist and Rogers v. Sunday Newspapers Ltd. [2017] IESC 18 for the parties to make submissions regarding the existence of circumstances that warranted an in camera hearing. The Court held that the FTPC in granting a private hearing had acted within its statutory entitlement but the same did not have a binding effect upon the High Court. The Court referred to the decision of the Supreme Court in the Gilchrist case stating that there was a common law power vested in the Court to conduct such hearings otherwise than in public subject to the existence of exceptional circumstances in the case.

JUDGMENT of Mr. Justice Kelly , President of the High Court delivered on the 3rd day of October, 2017

The Question

1 The sole question which falls to be answered in this judgment is whether the High Court has power under the Medical Practitioners Act 2007 (the Act) to hear an application under s.76 of the Act otherwise than in public.

Background

2 The Medical Council ('The Council') seeks an order pursuant to s. 76 of the Act confirming its decision of December 2016 that the respondent's registration as a medical practitioner be cancelled.

3 The decision of the Council was made on foot of a finding of its Fitness to Practise Committee (FTPC) that the respondent was guilty of professional misconduct. The FTPC made a recommendation that his registration as a medical practitioner be cancelled. That recommendation was endorsed by the decision of the Council.

4 The hearing before the FTPC was in private. So also was the hearing by the Council on foot of its recommendation. The Council decided not to publish details of the sanction. It is in these circumstances that the respondent contends that the application to confirm the cancellation of his registration ought to be heard in private.

5 When the application first came before the court, the solicitor for the Council expressed concern as to the jurisdiction of the court to hear the matter otherwise than in public. He said 'the primary concern of the Council today is that it wouldn't be heard in camera unless there was express jurisdiction to do so'. I directed an exchange of written submissions and heard oral argument on the issue and this is my judgment on it.

The Constitutional Imperative

6 Article 34.1 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.'

7 The reason for this constitutional requirement was identified by Keane J. (as he than was) in Irish Times v. Ireland [1998] 1 I.R. 359 at p. 409 where he said:-

'Justice must be administered in public, not in order to satisfy the merely prurient or inquisitive, but because, if it were not, an essential feature of a truly democratic society would be missing. Such a society could not tolerate the huge void that would be left if the public had to rely on what might be seen or heard by casual observers, rather than on a detailed daily commentary by press, radio and television. The most benign climate for the growth of corruption and abuse of powers, whether by the judiciary or members of the legal profession, is one of secrecy.'

8 Is an application under s. 76 of the Act one of the special and limited cases prescribed by law which may be heard otherwise than in public?

9 The search for an answer to that question must begin by an examination of the provisions of the Act since this is a statutory application arising from the discharge by the Council of a statutory function conferred on it by the Act.

The Act

10 Does the Act expressly authorise the court to hear an application under s. 76 otherwise than in public? The short answer to that question is that it does not.

11 Section 76 falls within Part 9 of the Act. That is the part which deals with the imposition of sanctions on registered medical practitioners following reports of the FTPC. Nowhere in Part 9 of the Act is to be found any express entitlement on the part of the court to hear applications under it (whether under s. 75 or s. 76) otherwise than in public.

12 Whilst the Act does not address such an entitlement on the part of the court under Part 9 of the Act, it does so expressly in s.60 which is contained in Part 7 of the Act. That section permits the Council to make an ex parte application to the court for an order to suspend the registration of a registered medical practitioner. Sub-section (2) of s. 60 provides:

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

It is clear that the legislature addressed its mind to the question of hearings in court otherwise than in public but limited such entitlement to an application brought under section 60.

13 The only express entitlement given to the court under the Act to hear an application otherwise than in public is confined to an application under section 60. The Act contains no express entitlement to hear an application under s. 76 otherwise than in public.

Implicit Authority

14 It was argued that notwithstanding the absence of an express statutory entitlement, it could be implied that the legislature intended the court to have the ability to hear the s.76 application in private, particularly in circumstances where both the FTPC and the Council dealt with it in that fashion.

15 Such an argument has its problems. First, there is the constitutional imperative of Article 34 of the Constitution which I have already reproduced. Second, it is difficult to contend that where the legislature clearly addressed its mind to the entitlement of the court to deal with matters in camera but confined such ability to applications under s. 60, that it should nonetheless be regarded as having implicitly authorised an application under s. 76 to be heard in camera (Expressio unius est exclusio alterius). Third, the argument for an implicit entitlement to hear the application in camera must be viewed in the light of the long title of the Act. The long title is as follows:

'An Act for the purpose of better protecting and informing the public in its dealings with medical practitioners and, for that purpose, to introduce measures, in addition to measures providing for the registration and control of medical practitioners, to better ensure the education, training and competence of medical practitioners, to amend the membership and functions of the Medical Council, to investigate complaints against medical practitioners and to increase the public accountability of the Medical Council; to give further effect to Council Directive 2005/36/EC; and for that purpose, to repeal and replace the Medical Practitioners Acts 1978-2002 and to provide for related matters'. (My emphasis)

16 Notwithstanding these matters, it is nonetheless argued that the court should hold that there is power conferred on it under the Act to conduct the s. 76 hearing in private. This involves a consideration of the structure of the Act.

The Statutory Structure

17 I have already reproduced the long title to the Act.

18 Section 3 repeals the Medical Practitioners Act 1978 and its amending Acts. Notwithstanding the repeal of the Act of 1978, the Medical Council, established by s.6 of that Act, is continued in being by s. 4 of the Act.

19 Section 6 of the Act provides that the object of the Council ' is to protect the public by promoting and better ensuring high standards of professional conduct and professional education, training and competence among registered medical practitioners'. The Council is required to perform its functions in the public interest (s.7 (1)(b)).

20 Section 20(2) of the Act requires the Council to establish a committee to be known as the Preliminary Proceedings Committee ('PPC') to give initial consideration to complaints and the FTPC to inquire into complaints.

21 If the PPC is of opinion that there is a prima facie case to warrant further action being taken in relation to a complaint, it is obliged to refer the complaint to the FTPC.

22 Part 8 of the Act deals with complaints referred to the FTPC.

23 Section 65 requires the FTPC to hear such complaint. Section 65(2) provides as follows:-

'A hearing before the Fitness to Practise Committee shall be heard in public unless –

(a) following a notification under section 64, the registered...