Philips v Medical Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Costello
• Judgment Date: 01 January 1992
• Neutral Citation: 1991 WJSC-HC 1236
• Court: High Court
• Docket Number: [1989 No. 3956P Ct. 6]
• Date: 01 January 1992

1991 WJSC-HC 1236

THE HIGH COURT

PHILIPS v. MEDICAL COUNCIL

ADEL PHILIPS

.V.

THE MEDICAL COUNCIL

Citations:

MEDICAL PRACTITIONERS ACT 1978 S6

MEDICAL PRACTITIONERS ACT 1978 S27(2)(d)

MEDICAL PRACTITIONERS ACT 1978 S28

MEDICAL PRACTITIONERS ACT 1978 S29

MEDICAL PRACTITIONERS ACT 1927 S26

BAKHT V THE MEDICAL COUNCIL 1990 ILRM 840

MEDICAL PRACTITIONERS ACT 1978 4TH SCH

MEDICAL PRACTITIONERS ACT 1978 S27(2)(b)

MEDICAL PRACTITIONERS ACT 1978 S38

PICKARD V SEARS (1837) 6 A & E 469

PHIPSON EVIDENCE 13TH ED 1063–1067

WEBB V IRELAND 1989 ILRM 566

AMALGAMATED INVESTMENT & PROPERTY CO LTD V TEXAS COMMERCE INTERNATIONAL BANK LTD 1982 QB 84

DUGGAN V IRELAND 1989 ILRM 710

CASSIDY V MIN INDUSTRY & COMMERCE 1978 IR 297

MIXNAMS PROPERTIES LTD V CHERTSEY URBAN DISTRICT COUNCIL 1964 1 QB 214

WOODS, STATE V AG 1969 IR 385

MEDICAL PRACTITIONERS ACT 1978 S25

MEDICAL PRACTITIONERS ACT 1978 S9

MEDICAL PRACTITIONERS ACT 1978 S27

MEDICAL PRACTITIONERS ACT 1978 S27(1)

MEDICAL PRACTITIONERS ACT 1978 S27(2)

MEDICAL PRACTITIONERS ACT 1978 S27(2)(c)

MEDICAL PRACTITIONERS ACTS 1927–1961

HEALTH ACT 1970

TREATY OF ROME 1958

Synopsis:

CONSTITUTION

Statute

Validity - Issue - Determination - Necessity - Absence - Plaintiff's rights established ~aliunde~ - Issue not examined - (1989/3956 P - Costello J. - 11/12/90) - [1991] 2 I.R. 115

|Philips v. The Medical Council|

DAMAGES

Assessment

Livelihood - Doctor - Registration - Prevention - Tribunal - Statutory duty - Determination of application within reasonable period - Breach of duty - Damages awarded - Duty of plaintiff to minimise loss - Failure to seek welfare benefit - (1989/3956 P - Costello J. - 11/12/90) - [1991] 2 I.R. 115

|Philips v. The Medical Council|

PROFESSIONS

Medical practitioner

Registration - Application - Medical Council - Statutory powers - Exercise - Registration rules - Change - Pre-existing rules relevant to application - Subsequent rules sought to be applied - Estoppel - Legitimate expectation of applicant - Prescribed qualifications for applicants - Qualifications prescribed ~ultra vires~ statutory tribunal - Duty to determine the application within reasonable time - Sudanese applicant being naturalised Irish citizen - Breach of statutory duty - Damages - Validity of enactment not examined - Medical Practitioners Act, 1978, ss. 25, 27, 29 - (1989/3956 P - Costello J. - 11/12/90) - [1991] 2 I.R. 115

|Philips v. The Medical Council|

STATUTE

Duty

Performance - Promptitude - Reasonable period - Tribunal - Application - Determination - Failure to determine application - Orthopaedic surgeon - Loss of income - (1989/3956 P - Costello J. - 11/12/90) - [1991] 2 I.R. 115

|Philips v. The Medical Council|

TRIBUNAL

Duties

Statute - Breach - Medical Council - General register - Full registration - Applicants - Prescribed qualifications - Requirements prescribed ~ultra vires~ the Council - (1989/3956 P - Costello J. - 11/12/90) - [1991] 2 I.R. 115

|Philips v. The Medical Council|

1 Judgment of Mr. Justice Costello delivered the 11th day of December 1990

2 The Plaintiff was born on 18th July 1950 in the Sudan, where he obtained his primary and secondary schooling. He then went to Cairo University and attended the Kasr Eleini School of Medicine and was awarded in November 1976 the degree of M.B.B.Ch. after a seven year course. From April 1987 to May 1980 he filled posts as house physician, house surgeon, casualty officer, and senior house officer in Khartoum Teaching Hospital, a large hospital of 800 beds associated with Khartoum University. In 1980 he came to this country and attended the primary F.R.C.S. course at the Royal College of Surgeons in Ireland from September 1980 to January 1981. The Medical Practitioners Act 1978allows for temporary registration on the General Register of Medical Practitioners maintained by the Medical Council and in March 1981 he obtained temporary registration for the first time which was renewed from time to time. He practised firstly for limited and interrupted periods as a locum Senior House Officer at St. Lawrences Hospital in Dublin in general surgery, orthopaedic surgery and urology. In 1982 he obtained his first post as a Senior House Officer in Sligo General Hospital and subsequently worked on a continuous basis from January 1982 to June 1985 as Senior House Officer in different hospitals. He was unemployed for six months from June 1985. Between January 1986 and February 1987 he again worked full-time as a Senior House Officer/Registrar. His speciality for most of this period was orthopaedic surgery. He had to cease practise in February 1987 because his temporary registration ran out and since then he has been unable to practise medicine. He has had in all nearly 9 years post-graduate experience in the Sudan and in this country.

3 He has impressive commendations from three surgeons under whom he practised in this country, one of whom took the trouble to give evidence in these proceedings. He is married to an Irish woman and has two young children. He became a naturalised Irish citizen in March 1987.

4 When his temporary registration expired he applied to the Irish Medical Council for full registration. Initially he was told that he was ineligible. He then consulted a solicitor. His solicitor was then sent a copy of rules made by the Council in 1980 under the provisions of 1978 Act which regulated the registration of doctors who had not obtained degrees from one of the Irish Medical Schools. Complying with their provisions he forwarded an application in July 1987. His solicitor was told that the Council was considering his application. After a lapse of some months he was told that the Council had made new rules (the "1987 Rules") and that a copy of them would be sent to him. After a further lapse of time during which the Council neither adjudicated on his original application or sent him a copy of the new rules he instituted, in April 1989, these proceedings.

5 I propose to commence this judgment by referring to the relevant provisions of the 1978 Act (Part I). I will then refer in more detail to the Plaintiff's application for registration (Part II). In Part (III) I will recount the history of the exercise by the Council of its statutory rule-making powers. I will then be in a position in Part IV to deal with the legal issues which, as the case has developed, have become more complex. In Part V I will consider the Plaintiff's claim for damages and in Part VI his claim (which is an alternative one and would only arise should his other claims fail) that the temporary registration provisions of the 1978 Act are unconstitutional. Because a number of doctors have instituted proceedings against the Council which involve issues similar to those raised in this case I have been asked to treat this case as a test case and determine all the issues which have been raised in it.

PART I

THE MEDICAL PRACTITIONERS ACT, 1978

(a) The Medical Council

6 The Defendant in this action is the Medical Council established under section 6 of the 1978 Act.

7 The Medical Council is a body of twenty-five members. One member is nominated by each of the following, University College Cork, University College Dublin, University College Galway, The University of Dublin and the Royal College of Surgeons in Ireland; two other members are appointed by the Royal College of Surgeons of whom one is appointed to represent surgical specialities and the other to represent jointly the specialities of anaesthetics and radiology; two more are appointed by the Royal College of Physicians on whom one is appointed to represent medical specialities and the other jointly the specialities of pathology, obstetrics and gynaecology; one member is appointed by the Minister to represent psychiatry; one by the Minister to represent general medical practice; registered medical practitioners elect ten members in the manner prescribed in the Act, and four others are appointed by the Minister, at least three of whom are not registered medical practitioners and who represent the interest of the general public. (section 9).

8 Thus, the Council is a large body and, not surprisingly, was empowered by statute to establish committees. The Committee relevant for the purposes of this action is a committee called the Registration Committee. It is concerned with matters relating to the register of medical practitioners, including the drafting of the rules relating to full registration which have featured in this case. It is important to bear in mind, however, that at all times that the actual statutory power of making rules remained a function of the full Council. (section 27(2)(d)).

9 The Council is not a body established to manage the affairs of the medical profession or to protect its interests; it is a statutory body entrusted with important statutory functions to be performed in the public interest. In particular the register of medical practitioners which it is required to maintain has been established to ensure that those who practise medicine in the State are properly qualified to do so. Important duties are conferred on the Council to ensure that proper standards of medical education and training are maintained in the medical schools in the State and in addition that the qualifications and training of doctors who do not graduate from these schools and but who may wish to practise in the State are adequate for that purpose.

(b) The Register.

10 One of the important statutory duties cast on the Council is the establishment of a register of medical practitioners and as the Plaintiff's entitlement to apply for registration on it is the central issue in this case I must spend a little time examining its features.

(i) Provisional Registration.

11 The normal route for Irish citizens to obtain registration is, as one would imagine, through the medical schools in the State. The...