Re M (a Doctor)

• Jurisdiction: Ireland
• Judgment Date: 08 March 1984
• Date: 08 March 1984
• Docket Number: [1983 No. 8953P]
• Court: High Court

In re M., a Doctor

In re M., a Doctor

[1983 No. 8953P]

High Court

Natural justice - Tribunal - Recommendation - Report to superior tribunal - Decision - Application for cancellation - Professional disciplinary code - Doctor - Removal of name from the register - Doctor entitled to appear before inferior tribunal only - Rules of court - Absence - Rules of the Superior Courts, 1962 (S.I. No. 72) Or. 95 - Medical Practitioners Act, 1978 (No. 4), ss. 45-47 - Constitution of Ireland, 1937, Article 40.

Upon an allegation of professional misconduct being made against a medical practitioner, it is provided by s. 45 of the Act of 1978 that the Fitness to Practise Committee may enquire into that allegation and report its findings to the Medical Council. Section 46 provides that, having considered that report, the Council may decide (inter alia) that the practitioner's name should be erased from the general register of medical practitioners and, in that event, the practitioner may apply to the High Court for an order cancelling the decision of the Council; if no such application is made by the practitioner, the Council may apply to the High Court for an order affirming its decision.

The petitioner, a medical practitioner, applied to the High Court pursuant to s. 46 of the Act for an order cancelling a decision of the Council that his name be erased from the register. He complained that the statutory provisions did not provide fair procedures for the determination of the relevant issues since, although he had availed of an opportunity to make submissions to the Committee before it reported to the Council, there was no opportunity for him to make submissions to the Council before it made its decision. The question of the fairness of the procedures under the Act of 1978, being thus raised, was determined by the judge as a preliminary issue.

Held by Finlay P., in determining the issue, 1, that the hearing by the High Court of an application under s. 46 of the Act of 1978 constitutes an entire trial of the issues involved and is not a mere appeal from the combined decisions of the Committee and the Council.

2. That, at such hearing, the onus is on the Council to establish the alleged misconduct and the aptness of the penalty chosen by the Council.

3. That, in view of the first two findings and the ultimate role of the High Court, the lack of any right of the petitioner to be heard by the Council before it reached its decision on the report of the Committee did not constitute unfair procedure or want of natural justice.

4. That the further steps in the proceedings should be in accordance with the Court's directions in that behalf.

Case mentioned in this report__

¹Dunne v. Minister for Fisheries— see p. 230, ante.

Petition.

By his petition presented on the 22nd December, 1983, the petitioner (a medical practitioner) applied to the High Court for an order cancelling a decision of the Medical Council that the name of the petitioner be erased from the general register of medical practitioners, which decision of the Council had been made after the Council had considered a report dated the 17th October, 1983, of the Fitness to Practise Committee. A question of the fairness of the procedure adopted under ss. 45 and 46 of the Medical Practitioners Act, 1978, was raised by the petitioner and was treated as a preliminary issue.

Section 46, sub.-ss. 3 and 5, of the Act of 1978 provides__

"(3). A person to whom a decision under this section relates may, within the period of 21 days, beginning on the date of the decision, apply to the High Court for cancellation of the decision and if he so applies — (a) the High Court, on hearing of...