Miggin (A Minor) v Health Service Executive (HSE) & Gannon

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Hanna,
Judgment Date26 Mar 2010
Neutral Citation[2010] IEHC 169
Docket Number[No: 565 P/2008], [2008 No. 565 P]

[2010] IEHC 169

THE HIGH COURT

[No: 565 P/2008]
Miggin (A Minor) v Health Service Executive (HSE) & Gannon

BETWEEN

LUKE MIGGIN (A MINOR, SUING BY HIS MOTHER AND NEXT FRIEND EMILY MIGGIN)
PLAINTIFF

AND

HEALTH SERVICE EXECUTIVE AND MICHAEL GANNON
DEFENDANTS

MEDICAL PRACTITIONERS ACT 1978 S45

MEDICAL PRACTITIONERS ACT 1978 S45(1)

MEDICAL PRACTITIONERS ACT 1978 S45(4)

MEDICAL PRACTITIONERS ACT 1978 S45(5)

MEDICAL PRACTITIONERS ACT 1978 S45(6)

BARRY v MEDICAL COUNCIL & ANOR 1998 3 IR 368

AMBIORIX LTD & ORS v MIN FOR ENVIRONMENT & ORS (NO 1) 1992 1 IR 277 1992 ILRM 209 1991/7/1580

O'BRIEN v IRELAND & ORS 1995 1 IR 568 1995 1 ILRM 22 1994/12/3784

EASTERN HEALTH BOARD v FITNESS TO PRACTICE COMMITTEE OF THE MEDICAL COUNCIL 1998 3 IR 399 1998/18/6670

BUCKLEY v BOUGH UNREP MORRIS 2.7.2001 2001/2/459

RYANAIR PLC v AER RIANTA CPT 2003 4 IR 264 2004 1 ILRM 241 2003/46/11374

COOPER FLYNN v RADIO TELEFIS EIREANN & ORS 2000 3 IR 344 2001 1 ILRM 208 2000/4/1394

TAYLOR v ANDERTON 1995 1 WLR 447 1995 2 AER 420

SCIENCE RESEARCH COUNCIL v NASSE 1980 AC 1028 1979 3 WLR 762 1979 3 AER 673

PJ CARROLL & CO LTD & ORS v MIN FOR HEALTH & ORS (NO 3) 2006 3 IR 431 2006/48/10191 2006 IESC 36

INDEPENDENT NEWSPAPERS (IRL) LTD v MURPHY 2006 3 IR 566 2006/30/6324 2006 IEHC 276

PRACTICE AND PROCEDURE

Discovery

Necessity - Privilege - Public interest in disclosure - Litigious advantage - Equality of arms - Proportionality - Confidentiality - Transcript of hearing of Fitness to Practise Committee of Medical Council - Whether evidence heard in camera could be disclosed - Whether transcript privileged - Whether possession of transcript conferred litigious advantage - Whether equality of arms between parties - Whether discovery proportionate to right to confidentiality - Whether discovery proportionate to right of Fitness to Practise Committee to conduct hearings in camera - Buckley v Bough (Unrep, Morris J, 2/7/2001) followed; Eastern Health Board v Fitness to Practise Committee of the Medical Council [1998] 3 IR 399 applied; Cooper Flynn v Radio Telefís Éireann [2000] 3 IR 344 and Science Research Council v Nassé [1980] AC 1028 approved - Medical Practitioners Act 1978 (No 4), s 45 - Disclosure order (2008/565P - Hanna J - 26/3/2010) [2010] IEHC 169

Miggin (a minor) v Health Service Executive

2008/565P - Hanna - High - 26/3/2010 - 2010 4 IR 338 2010 34 8533 2010 IEHC 169

Mr. Justice Hanna,
1

The plaintiff in this case brings proceedings by his mother and next friend. He alleges he suffered serious brain injury during the course of his delivery at the maternity unit at Mullingar General Hospital on the 28th day of February, 2006. The plaintiff says that, at all material times, he was under the care both of the first defendant's midwifery and nursing staff and the second defendant, a consultant obstetrician and gynaecologist.

2

This case comes before me as an appeal from a decision of the Master of the High Court refusing discovery of a transcript of the proceedings before the. Fitness to Practice Committee of the Medical Council ("the Committee") conducted in April, 2008, and concerning a complaint made against the second named defendant as to the conduct and management of the plaintiff's birth. We are not presently concerned with the detail of what transpired before that committee. I should note, however, that the complaint against the second defendant was not upheld and this carries with it possible implications with regard to the release or otherwise of this transcript to the plaintiff as a consequence of an order of discovery and/or inspection.

3

Counsel for the plaintiff said that the discovery of the transcript of the said proceedings was essential for the conduct of the plaintiff's case and to create an "equality of arms" between the parties. Counsel for the defendants argued that an order of discovery should not be made against the second defendant. First, the transcript of the proceedings was impressed with a statutory privilege. Secondly, although undoubtedly relevant, discovery of the said documentation was not necessary.

4

The enquiry before the Committee was conducted pursuant to the provisions of the Medical Practitioners Act1978, (the "Act of 1978") and in particular, s. 45 thereof. Section 45(1) of the said act provides, inter alia:-

5

2 "45(1) The Council or any person may apply to the Fitness to Practise Committee for an inquiry into the conduct of a registered medical practitioner on the grounds of:-

(a) his alleged professional misconduct, or,
6

(b) his fitness to engage in the practice of medicine by reason of physical or mental disability,

7

and the application shall, subject to the provisions of this Act, be considered by the Fitness to Practise Committee."

8

Subsections (4) and (5) of the said act provide as follows:-

9

2 "(4) When it is proposed to hold an inquiry under subsection (3) of this section the person who is the subject of the inquiry shall be given notice in writing by the Registrar sent by pre-paid post to the address of that person as stated in the register of the nature of the evidence proposed to be considered at the inquiry and that person and any person representing him shall be given the opportunity of being present at the hearing.

10

(5) The findings of the Fitness to Practise Committee on any matter referred to it and the decision of the Council on any report made to it by the Fitness to Practise Committee shall not be made public without the consent of the person who has been the subject of the inquiry before the Fitness to Practise Committee unless such person has been found, as a result of such inquiry, to be-

(a) guilty of professional misconduct …"
11

The latter subsection gives a veto to the person about whom complaint has been made and who has successfully cleared himself or herself of an allegation of professional misconduct as to publication of the findings of the committee, a veto which the second defendant, quite properly and within his rights, has sought to employ. It is the defendant's case that subsection (5), cited above, extends to the transcript of the proceedings before the Committee.

12

A significant feature of the proceedings before the Fitness to Practice Committee was that the said committee, as it was entitled to do under s. 45(6) of the said act directed the plaintiff's mother to produce the following:-

"All documentation in your power or possession in relation to your attendance at the Midland Regional Hospital at Mullingar on 28th February, 2006, including but not limited to any notes prepared by you in relation to the treatment afforded to you by hospital staff and in particular Dr. Gannon."

13

Accordingly. the plaintiff's mother had to make, in effect, discovery of all material documents in her possession or power of procurement including notes that she appears to have made during the course of the labour. The second named defendant's lawyers now have possession of those notes and, no doubt, should the opportunity arise, will utilise them in their client's interest.

14

The plaintiff's mother attended the hearing before the said committee accompanied by her solicitor. Having completed her evidence, she and her solicitor were requested by the Committee to leave the hearing. An application by her solicitor to remain on, by way of holding a watching brief, was refused. Therefore, the plaintiff's mother and her solicitor are in a state of complete unawareness as to what transpired before the committee, a position which contrasts sharply with that of the second defendant. He has full access to the transcript, the mother's notes, the evidence which was given by the plaintiff's mother and documents, such as reports (if any) which may have been offered to the committee in defence of the second defendant.

15

A number of authorities were opened to me. The defendants placed significant reliance upon the decisions of both Costello P. in the High Court and Barrington J. in the Supreme Court in the case ofBarry v. the Medical Council and Anor [1998] 3 I.R. 368. In both courts there was clear recognition of the discretion vested in the Committee by the Act of 1978, to decide whether or not proceedings before it were conducted in public or in private. In that particular case, the plaintiff, a medical practitioner against whom complaints had been made to the Medical Council, wished that the proceedings be conducted in public, given what he perceived to be the ruination of his professional reputation hitherto. The Committee determined that it would press on with matters in private and this decision was determined to be intra vires. Among the reasons given by Costello P. were that, given the nature of the complaints against the plaintiff, and the risk that the proceedings might not take place if the hearing were held in public, the interests of justice might be prejudiced and dealing with the matter in private would not offend, inter alia, the provisions of the European Convention on Human Rights.

"The applicant's second submission is that the Committee's decision wasultra vires the Act of 1978. It is said that (a) the Committee misconstrued the Act of 1978 by holding that it had a discretion to hold the inquiry in private or public, (b) that the only discretion that the Committee had was to hold such part of the inquiry that might relate to confidential patient-doctor relationship in camera and (c) its decision was accordingly, ultra vires.

The statute is silent as to whether or not the hearing should be in private or in public but it seems to me that the Committee properly construed the statute by holding that it had a discretion in the matter. Section 45(1) of the Act of 1978 provides that the findings of the Committee and the decision of the Council on any report made to it by the Committee 'shall not be made public' without the consent of the doctor, unless the doctor has been...

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