Samuel Van Eeden v The Medical Council, Ireland and The Attorney General
| Jurisdiction | Ireland |
| Judge | Mr. Justice Twomey |
| Judgment Date | 24 September 2021 |
| Neutral Citation | [2021] IEHC 606 |
| Docket Number | [2021 No. 1028 P] |
| Court | High Court |
[2021] IEHC 606
[2021 No. 1028 P]
THE HIGH COURT
JUDGMENT of Mr. Justice Twomey delivered on the 24th day of September, 2021
This is a case in which the plaintiff, Dr. Van Eeden, was charged and acquitted in October 2014 with importing medicines without a licence into the State. In September 2016 the Medical Council proposed to open an inquiry before the Fitness to Practice Committee regarding, inter alia, whether he had prescribed an unauthorised medicine to a patient in his GP practice.
Dr. Van Eeden claims that he is being subject to disciplinary proceedings by his professional body in relation to matters for which he was acquitted by the District Court in October 2014 and so the disciplinary proceedings should not go ahead.
He also claims that the disciplinary proceedings amount to a breach of the equality provisions in the Constitution since a non-professional in his position e.g. a courier, waiter, tradesman etc., who had been acquitted of the charges as he was, would be able to return to work without any restriction or any risk of any restriction on his right to do so. Dr. Van Eeden claims that this difference of treatment between him as a doctor and a non-professional, amounts to unlawful discrimination.
For the reasons set out below, this Court concludes, firstly, that on the facts of this case there is in fact no overlap between the charges in the District Court of which Dr. Van Eeden was acquitted and the matters which are the subject of the disciplinary proceedings, and so there is no reason for the inquiry not to proceed on the principle that it had been previously decided ( res judicata).
Secondly, even if the matter had been previously decided by the District Court, this Court also concludes that, not only is a difference in treatment between the plaintiff as a doctor and a person who is not a doctor, justified in the public interest, but such a difference in treatment is required to ensure that the public can have trust in the medical profession generally and doctors individually.
On 12th June, 2012, on a return trip from Bangladesh, the luggage of the plaintiff's wife was searched by Customs at Dublin Airport. Eight medical products were discovered therein. A criminal prosecution in the District Court was brought against the plaintiff by the Irish Medicines Board (now the Health Product Regulatory Authority) on the grounds that the plaintiff had procured a medicinal product that contained a prescription only substance contrary to, inter alia, the Medicinal Products (Control of Placing on the Market) Regulations 2007 (SI 540/2007) and the Medicinal Products (Control of Manufacture) Regulations ( SI 539/2007).
Following an Irish Times report regarding the above prosecution on 8th July, 2014, on 10th July, 2014, the Medical Council preferred a complaint to the Preliminary Proceedings Committee (“PPC”) pursuant to s. 57 of the Medical Practitioners Act 2007. On 22nd October, 2014, the plaintiff was acquitted of the charges (16 charges in total) before the District Court.
On 6th October, 2015, the PPC determined that the matter required further inquiry. A Notice of Inquiry was furnished by the CEO of the Medical Council to the plaintiff on 22nd September, 2016 containing a number of allegations, including that the plaintiff had, in or after February 2012, administered a quantity of lidocaine imported from Bangladesh to one or more patients in his care.
During the course of the investigation in relation to the District Court charges, Dr. Van Eeden made certain statements to the Irish Medicines Board (now the Health Product Regulatory Authority) to the effect that he had, sometime in February 2012, imported lidocaine from Bangladesh. However, it is relevant to note that this admission did not form part of the District Court charges.
On 7th April, 2017, the plaintiff sought leave to bring a judicial review against the Medical Council's decision to undertake an inquiry on the grounds, inter alia, that the proposed inquiry related to issues that were res judicata. That application was dismissed on 11th October, 2017 ( Van Eeden v. Fitness to Practice Committee and Medical Council [2017] IEHC 632). An appeal of that refusal was brought by the plaintiff and that appeal was heard and dismissed in an ex tempore judgment delivered by the Court of Appeal on 3rd February, 2020.
The Fitness To Practice Committee (FTPC) inquiry was listed on 13th February, 2020, but was adjourned at the request of the plaintiff. The inquiry was scheduled but again adjourned on 25th May, 2020, 27th October, 2020, and 7th December, 2020. The most recent scheduled hearing was due to take place on 23rd February, 2021.
The within proceedings were issued on 19th February, 2021 – only four days before the rescheduled FTPC hearing was due to take place, thus leading to their adjournment.
In these proceedings Dr. Van Eeden is in substance challenging the decision of the CEO of the Medical Council to issue a Notice of Inquiry.
However, rather than judicially reviewing that decision (and bearing in mind that his initial judicial review was unsuccessful), he issued a plenary summons seeking various Declarations regarding the proposed holding of a disciplinary inquiry before the Fitness to Practice Committee (“FTPC”) of the Medical Council.
It is relevant for this reason to refer to Browne v. Minister for Agriculture [2020] IECA 186. There, the plaintiff similarly issued a plenary summons seeking declarations regarding, in that case, the failure to reclassify his boat, the refusal of licences to fish for mackerel, and the non-allocation of quotas to him. In the High Court, whose decision was upheld by the Court of Appeal, Ní Raifeartaigh J. held that:
“what the plaintiff seeks to do in these proceedings is, in essence, to challenge certain decisions of public authorities of a kind typically and classically amenable to judicial review.” (at para. 16)
At para. 73 in the Court of Appeal's judgment, Edwards J. concluded that:
“It seems to me that no matter how one views the plaintiff's proceedings the essential nature of the subject matter is to do with administrative decisions/exercise of discretion about which the plaintiff is dissatisfied …”
He quoted with approval the judgment of Clarke J. (as he then was) in Shell E & P Ireland Ltd v. McGrath & Ors [2013] 1 I.R. 247 at p. 262 et seq.:
“It would make a nonsense of the system of judicial review if the party could by-pass any obligations which arise in that system (such as time limits and the need to seek leave) simply by issuing plenary proceedings which, in substance, whatever about form, sought the same relief or the same substantive ends. [….] The underlying reason why the rules of court impose a relatively short timeframe in which challenges to public law measures should be brought is because of the desirability of bringing finality to questions concerning the validity of such measures within a relatively short timeframe. [….] Either there is a binding time limit in place (subject to extension by the court) or there is not.”
In this case, it seems to this Court that, just as in Browne, no matter how one views the plaintiff's proceedings, the essential nature of the subject matter is to do with administrative decisions/exercise of discretion of a public authority, in this case, the Medical Council, about which the plaintiff is dissatisfied, and for this reason, this Court concludes that the proceedings are judicial review in nature.
It is therefore against this background that this Court will consider the declaratory relief sought by Dr. Van Eeden.
The main issues he raises can be categorised as follows.
First, he claims that the proposed inquiry to be held by the Fitness to Practice Committee is res judicata because of the earlier acquittal of Dr. Van Eeden by the District Court on the charges of, inter alia, importing medicines without a manufacturer's authorisation. Secondly, he claims that the A.A. (No 1) (A.A. v. Medical Council (No 1) [2002] 3 I.R. 1) case is erroneous insofar as it permits a disciplinary inquiry after a criminal acquittal. Thirdly, he claims the Medical Council has usurped the powers of a court contrary to Articles 34 and 37 of the Constitution as it is involved in the administration of justice. Fourthly, he claims that Part 8 of the 2007 Act (which sets out the procedure to be adopted when a complaint is referred to the FTPC) and/or the practice adopted by the Medical Council amounts to a breach of the equality provisions in Article 40.1 on the basis that they amount to invidious discrimination of a professional in contrast to how a non-professional is treated, because a non-professional who is acquitted by the District Court is not subject to any inquiry regarding his licence or entitlement to continue working.
For the res judicata claim by the plaintiff against the Medical Council to be successful, it is clear that the Medical Council must be pursuing Dr. Van Eeden for the same offences for which he was acquitted by the District Court.
It is important therefore in considering this issue to first consider the offences in respect of which Dr. Van Eeden was acquitted by the District Court. These can be summarised as follows. The first was the offence of procuring eight separate medicinal products, otherwise than in accordance with a marketing authorisation, contrary to, inter alia, the Irish Medicines Board Act 1995 (as amended). The second was the offence of importing into the State the same medicinal products without being granted a manufacturer's authorisation by the Irish Medicines Board.
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Van Eeden v The Medical Council and Others
...practitioner, appealed to the Court of Appeal against the judgment of the High Court (Twomey J) delivered on 24th September, 2021 ([2021] IEHC 606) and consequent order made on 13th October, 2021 dismissing his action against the defendants/respondents, the Medical Council, Ireland and the ......