Medical Council v Z
| Jurisdiction | Ireland |
| Judge | Mr. Justice David Barniville |
| Judgment Date | 19 April 2023 |
| Neutral Citation | [2023] IEHC 325 |
| Court | High Court |
| Docket Number | [2023 No. 37 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
[2023] IEHC 325
[2023 No. 37 MCA]
THE HIGH COURT
Breach of undertakings – Medical practitioner – Registration – Applicant seeking an order directing that the registration of the respondent's name in the Register of Medical Practitioners be suspended until further order of the court – Whether the public interest required making the order sought
Facts: The applicant, the Medical Council (the Council), applied to the High Court for various orders arising from an alleged breach of undertakings given by the respondent to the court on 2 February 2023. Those orders included an order pursuant to s. 60 of the Medical Practitioners Act 2007, directing that the registration of the respondent's name in the Register of Medical Practitioners (the register) be suspended until further order of the court. The other orders sought included an order that the respondent doctor be prohibited from engaging in the practice of medicine until further order of the court, and then orders were sought that the Council be at liberty to provide a copy of the order to various different bodies who were listed in the notice of motion. Ancillary orders were sought that would entitle the Council to respond accurately to any request concerning the respondent’s registration status and also that the Council would be at liberty to reflect any order granted on the register.
Held by Barniville P that there was no dispute as to the legal principles that are to be applied in such an application. He adopted the summary of those principles in Medical Council v Bukhari [2022] IEHC 503 and Medical Council v A Medical Practitioner [2023] IEHC 171. He accepted that the paramount consideration is the need to protect the public, which is what s. 60 of the 2007 Act requires and what the case law emphasises, including the judgment of Barron J in the Supreme Court in Ó Ceallaigh v An Bord Altranais [2000] 4 I.R. 54. Barniville P accepted that this is an order of last resort, to be made only when no other order will serve to protect the public and to protect the community. He weighed in the balance the different interests involved, the protection of the public as well as the particular rights which the doctor himself enjoyed, including his right to a good name and reputation and his right to earn a livelihood. Barniville P accepted that s. 60 orders should only be made in exceptional cases. It seemed to him that, considering all of those circumstances, this was such an exceptional case in which the public interest did require that he make those orders. He bore in mind the fact that he afforded the respondent an opportunity to address the Council's concerns by undertakings which Barniville P accepted on 2 February 2023; those undertakings had been clearly breached. Barniville P noted that the circumstances of the breaches, bearing in mind that the precise factual circumstances had to be teased out in the course of an inquiry, give rise to some unusual features. He held that they would have to be dealt with by way of proper findings, but he had concerns about what some of what the respondent had said in his affidavit as to what occurred. In any event, even on the basis of what the respondent had said, Barniville P held that there was clear evidence of breaches of those undertakings. If a doctor gives undertakings to the court and breaches those undertakings, particularly when dealing with the prescribing of controlled substances in unusual circumstances, then Barniville P felt that he had to give precedence in the case to the protection of the public and he could not rely on the respondent's word that he would abide by those undertakings in the future.
Barniville P held that he had no alternative, in order to ensure the proper protection of the public which was his fundamental role under s. 60, but to grant the orders sought by the Council on the renewed application. Therefore, he made the orders sought in the notice of motion issued by the Council.
Application granted.
Ex-Tempore JUDGMENT of Mr. Justice David Barniville, President of the High Court, delivered on the 19 th April 2023
. This is my judgment on an application by the Medical Council (the “Council”) for various orders arising from an alleged breach of undertakings given by the respondent to this court on 2 February 2023. These orders include an order pursuant to s. 60 of the Medical Practitioners Act 2007 (the “2007 Act”), directing that the registration of the respondent's name in the Register of Medical Practitioners (the “register”) be suspended until further order of the court. The other orders sought include an order that the respondent doctor be prohibited from engaging in the practice of medicine until further order of the court, and then orders are sought that the Council be at liberty to provide a copy of the order to various different bodies who are listed in the notice of motion. Ancillary orders are sought that would entitle the Council to respond accurately to any request concerning the respondent's registration status and also that the Council would be at liberty to reflect any order granted on the register.
. This case comes before the court under s. 60 of the 2007 Act. S. 60(2) of the 2007 Act provides that:
“ An application under subsection ( 1) or (1A) shall be heard otherwise than in public unless the Court considers it appropriate to hear the application in public”.
In accordance with that provision, this application was heard in camera. However, I intend to publish this ex-tempore judgment as soon as is practicable. I have anonymised, in the public interest, details that might identify the respondent or any non-legal professional relevant to the proceedings. I have done this by the use of initialising the medical professionals concerned. I have also done so in the cases of certain other people and have referred to the hospital in which the respondent is working as simply “the hospital”.
. The application concerns Dr Z., who is registered on the register of medical practitioners. An urgent application was made in February 2023 for similar orders. On that occasion the Council had issued an originating notice of motion seeking orders under s.60 of the 2007 Act on 1 February 2023. That application was grounded on an affidavit sworn by Dr Suzanne Crowe, the President of the Medical Council, on 1 February 2023. In her affidavit, Dr Crowe set out in some detail the circumstances in which the Council had decided to bring a s. 60 application seeking Dr. Z.'s suspension from the register and the various other orders which were sought at the time.
. The essential concern was the manner in which Dr Z. had, on a number of occasions, prescribed controlled drugs to patients in unusual circumstances, which had given rise to concerns on the part of various pharmacists, which were brought to the attention of the Pharmaceutical Society of Ireland, and, in turn, those concerns were brought to the attention of the Medical Council. There were real concerns in relation to the prescribing practices of the doctor through his work as part of an online doctors' service. It was said by Dr Crowe on behalf of the Medical Council that those practices were such as to give rise to real issues, which gave rise to a significant need to protect the public and that the only way it was said that the public's safety could be protected was by making the s. 60 orders sought by the Council.
. When that application came before me on an urgent basis on 2 February 2023. Dr. Z. was present and represented by Mr. Michael Lanigan, Solicitor. He had previously indicated that he would be prepared to give undertakings to address the situation and, having heard from the parties, I noted that a s. 60 order is an order effectively of last resort, having regard to its implications for the doctor involved, and having regard to the need to balance the need to protect the public, which is the paramount consideration on an application such as this, against the rights which the doctor has to pursue his livelihood and to his good name and reputation and so on. It is in those circumstances that the court will often consider whether undertakings could be given which would adequately protect the public in light of the concerns that have been expressed by the Medical Council.
. Having heard from the parties, it was pretty clear to me that appropriate undertakings would satisfactorily address the situation, and on that basis the doctor provided a number of undertakings to the court. Three of those undertakings are relevant to this further s.60 application, because it is suggested that the doctor was in clear breach of same. I propose to set out now three of the undertakings given by the doctor on 2 February, which were accepted by the court in lieu of the making of any s. 60 order on that occasion.
. The undertakings were that pending the determination of the complaint made against the doctor under the provisions of the 2007 Act, in particular under Part 7, and, if applicable, Parts 8 and 9 of the 2007 Act, the doctor undertook to the court on oath:
“(a) not to treat, including prescribing any medication to, any patient who is not a patient of [the hospital Dr. Z works in], (or such other hospital as he may be practising in and in respect of which he has received written approval from the Council),
(b) to prescribe only to patients of the hospital (or such other hospital as he may be practising in and in respect of which he has received written approval from the Council) under consultant...
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