Podariu v Veterinary Council of Ireland

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 24 October 2017
• Neutral Citation: [2017] IECA 272
• Docket Number: [C.A. No. 126 of 2016],Neutral Citation Number: [2017] IECA 272
• Court: Court of Appeal (Ireland)
• Date: 24 October 2017

BETWEEN/

LUCIAN PODARIU

APPLICANT/RESPONDENT

- AND -

THE VETERINARY COUNCIL OF IRELAND

- AND -

THE FITNESS TO PRACTICE COMMITTEE

OF THE VETERINARY COUNCIL OF IRELAND

RESPONDENTS/APPELLANTS

[2017] IECA 272

Hogan J.

Peart J.

Hogan J.

Whelan J.

Neutral Citation Number: [2017] IECA 272

Record No. 2016/126

THE COURT OF APPEAL

Professional ethics & regulation – Veterinary surgeon – Disciplinary proceedings – Multiple complaints against respondent – Appeal against order finding flaws in fair procedure – Veterinary Practice Act 2005 s 80

Facts: The respondent was a Romanian veterinary surgeon practising in the State. Multiple complaints were made in respect of his handling and treatment of animals, and an inquiry was held into his conduct by the Council. The High Court found that the inquiry was flawed on the basis fair procedures had not been complied with, and the respondents now appealed under s 80 of the Veterinary Practice Act 2005.

Held by Hogan J, that the appeal would be allowed. The Court was persuaded that the Fitness to Practice Committee of the Council did not have jurisdiction to permit an amendment of the inquiry notice, and the procedures of the 2005 Act were therefore being complied with. However, the respondent was estopped from complaining about the validity of the Committee's decision to permit a fresh allegation to be added. Once that allegation had been added, all the complaints were to be resolved under the provisions of the 2005 Act.

The Court invited submissions from counsel as to the appropriate form of orders.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 24th day of October 2017

1 The applicant, Mr. Lucian Podariu, is a veterinary surgeon from Romania who has practised in Ireland for almost 10 years. Sixteen complaints were made against him in respect of his handling and treatment of small animals, namely dogs and cats, albeit that one of these complaints (complaint no. 14) related to the keeping of adequate contemporary veterinary records in relation to one or more of these animals and another (complaint no. 6) related to an alleged embellishment of his curriculum vitae. As the dates of certain events in this narrative assume some importance for reasons which will become clearer later in this judgment, it should be stated that the sixteen complaints in question all relate to events which took place between February 2010 and April 2012.

2 These complaints were made by the complainant, a Mr. Roarty (who was the former employer of Mr. Podariu) to the Registrar of the Veterinary Council ('the Council') on 1st May 2012. The complaints were considered by the Preliminary Investigation Committee ('PIC') of the Council and in July 2012 the matter was referred to an inquiry before the Fitness to Practice Committee of the Council ('FTPC') pursuant to the provisions of s. 76(6)(b) of the Veterinary Council Act 2005. Mr. Podariu was directed to produce veterinary records by way of production summonses issued by the FTPC in October 2012 and in May 2013. The notice of inquiry, dated April 2013, related to Mr. Podariu's management of a number of small animals but it also contained, as I have already noted, an allegation (allegation no. 14) to the effect that he had failed to maintain any or adequate contemporaneous records of his treatment of those small animals.

3 The inquiry before the FTPC commenced on 20th May 2013. During the course of the inquiry, Mr. Podariu produced original notebooks which he claimed were his contemporaneous handwritten records for the relevant years. In the light of this evidence, the Registrar (having concluded her evidence) then proposed adducing evidence before the FTPC to the effect that the handwritten records produced by the Respondent were not in fact contemporaneous records, as the notebooks in which they were written, sold by the supermarket chain, Lidl Ireland, were not on the Irish market and could not have been purchased on the relevant dates in the manner claimed by Mr. Podariu.

4 Mr. Podariu was notified by letter dated 27th June 2013 of a proposed application to amend the Notice of Inquiry to allege expressly that the Respondent acted dishonestly in producing the records and in giving evidence by reference to those records claiming that they were contemporaneous records.

5 The inquiry resumed on 1st October 2013 and at that hearing Mr. Podariu's legal representatives did not dispute that the FTPC was entitled in principle to allow the proposed amendment of the Notice of Inquiry. The FTPC decided to permit the amendment of the Notice of Inquiry to introduce the amendment (allegation no. 17) to the effect that the Mr. Podariu had acted dishonestly in purporting to produce contemporaneous handwritten records. The inquiry, which was then adjourned, subsequently resumed and concluded on 11th November 2013. The FTPC found Mr. Podariu guilty of professional misconduct by reference to the amended charge only (i.e., complaint no. 17) and recommended that he be censured.

6 On 17th November 2014, the Council considered the proposed sanction and decided instead to suspend the Respondent's registration for six weeks. Mr. Podariu then appealed that decision to the High Court pursuant to s. 80(3) of the Veterinary Practice Act 2005 ('the 2005 Act'). McCarthy J. heard the appeal in January 2016 and in an ex tempore judgment delivered on 20th January 2006 he found for Mr. Podariu on fair procedures grounds. The Council have now appealed to this Court against that decision pursuant to s. 80(6) of the 2005 Act pursuant to leave granted by McCarthy J. on the 11th February 2016.

7 Prior to considering the legal issues which now arise in respect of this appeal, it is appropriate in the first instance to consider the relevant legislation.

The relevant legislation

8 Part 7 of the 2005 Act establishes a disciplinary regime for veterinary surgeons broadly similar to that currently in place for other statutorily regulated professions. Section 76 of the 2005 Act provides that any person is entitled to apply for an inquiry into the fitness to practise veterinary medicine of a registered person on the grounds, inter alia, of professional misconduct. Such an application for an inquiry is directed, in the first instance, to the PIC. Pursuant to s. 76(5)(b) of the 2005 Act, the PIC then seeks observations from the registered person in respect of whom the application is made. The PIC may then decide, pursuant to s. 76(6), that the inquiry should proceed. In contrast to the statutory regime which obtains for other professionals, it may be noted that the 2005 Act provided for a timeframe within which this decision was required to be made. This time period was originally two months: see s. 76(8). This period has now been extended to four months, pursuant to the amendments effected by the Veterinary Practice (Amendment) Act 2012 ('the 2012 Act').

9 If a decision to hold an inquiry is taken by the PIC, then the matter is sent forward to the FTPC. Pursuant to s. 78(3), the veterinary surgeon is required to be given notice in writing by that Committee of the nature of the evidence 'proposed to be considered at the inquiry'. Although s. 78 does not provide in terms for the delivery of a notice of inquiry, it would appear that this is the procedure which – in common with other statutory regimes governing disciplinary procedures – is followed by the FTPC. In practice, the Registrar formulates the notice of inquiry.

10 At the conclusion of the inquiry, the FTPC is required to make a report on its findings to be delivered to the Council. The requirement to deliver a report and the powers of Council on receipt of such a report were provided for by ss. 79 and 80 of the 2005 Act. In particular, s. 80(1) of the 2005 Act provided as follows:

'(1) Where the Council receives a report from the Fitness to Practise Committee under section 79(1), in which that Committee gives as its opinion that the registered person to whom the inquiry relates is not fit to practise, or is not fit to practise a specified type of veterinary medicine, or veterinary nursing as appropriate, it shall decide to do any of the following:-

(a) remove the name of the registered person from all or some of the parts of the Register or the Register of Veterinary Nurses where he or she is registered, as the Council considers appropriate,

(b) direct that for a specified period the registration of the registered person in all or some of the parts of the Register or the Register of Veterinary Nurses where he or she is registered, as the Council considers appropriate, shall not have effect, or

(c) attach such of the following conditions as it thinks fit, to the retention of the name of the registered person in all or some of the parts of the Register or the Register of Veterinary Nurses where he or she is registered, as the Council considers appropriate:

(i) that he or she should obtain specified medical treatment;

(ii) that he or she should have limits placed on the type of veterinary medicine or veterinary nursing, as appropriate, practised by him or her;

(iii) that he or she should have geographical or temporal limits placed on the practice by him or her of veterinary medicine or veterinary nursing, as appropriate;

(iv) that he or she should attend specified programmes of education or further education;

(v) other specified conditions.' (emphasis added)

11 As originally enacted s. 81 empowered the Council to advise, warn or censure a person on receipt of a report from the FTPC, and unlike s. 80, it was silent in relation to the fitness to practise of the veterinary practitioner. Critically, however, the 2005 Act was subsequently amended by the 2012 Act. The 2012 Act was signed by the President on 18th July 2012 and, in the absence of a provision to the contrary in that Act itself, it became law on that day by...