Saqib Ahmed v The Fitness to Practise Committee of the Medical Council, The Medical Council, and, (by Order)

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 28 July 2021
• Neutral Citation: [2021] IECA 214
• Court: Court of Appeal (Ireland)
• Docket Number: Record No.: 2018/145

Between/

Saqib Ahmed

Appellant

and

The Fitness to Practise Committee of the Medical Council, The Medical Council, and, (By Order)

The Minister for Justice and Equality, Ireland and The Attorney General

Respondents

[2021] IECA 214

Donnelly J.

Faherty J.

Ní Raifeartaigh J.

Record No.: 2018/145

THE COURT OF APPEAL

Judicial review – Fitness to practise – Right to work – Appellant seeking a declaration that ss. 71 and 75 of the Medical Practitioners Act 2007 are repugnant to the Constitution – Whether ss. 71 and 75 of the Medical Practitioners Act 2007 are unconstitutional

Facts: An inquiry in connection with the appellant, Mr Ahmed, a registered medical practitioner, was held in accordance with the Medical Practitioners Act 2007. Nine allegations had been included in the notice of inquiry; some of those allegations were further subdivided. One sub-divided allegation led to a finding by the first respondent, the Fitness to Practise Committee, of poor professional performance by the appellant. On consideration of that finding, the second respondent, the Medical Council, imposed the sanction of “advice” upon the appellant and did not impose conditions on his registration. The appellant challenged by way of judicial review the findings and report of the Committee and the decision of the Council to impose the said sanction. In the light of the absence of an appeal against the finding of a sanction of “advice”, the appellant also challenged the constitutional validity of ss. 71 and 75 of the 2007 Act and the compatibility of those provisions with the European Convention on Human Rights. The third, fourth and fifth respondents, the Minister for Justice and Equity, Ireland and the Attorney General, were joined by order of the High Court in respect of the constitutional and Convention claims. In a judgment dated the 16th February, 2018, the High Court (Meenan J) concluded that there was no basis for granting any of the reliefs sought and dismissed the proceedings. The appellant appealed to the Court of Appeal. Having regard to the reliefs claimed and the grounds upon which they were sought, the issues which arose in the appeal were as follows: (i) whether the appellant was out of time for the bringing of the judicial review; (ii) whether there was any basis for granting any of the reliefs sought in connection with the said findings of the Committee and/or the said decision of the Council; (iii) whether (a) ss. 71 and 75 of the 2007 Act breach the Constitution insofar as they deprive the appellant of an asserted right of appeal in circumstances where a finding of poor professional performance was made against the appellant, but the sanction imposed is not amenable to appeal to the High Court, and (b) the extent of the grounds upon which it was pleaded that the said sections breached the Constitution; and (iv) whether ss. 71 and 75 of the 2007 Act are compatible with Article 6 of the Convention.

Held by Donnelly J that there was sufficient evidence before the Committee for it to reach a factually sustainable conclusion that the facts on allegation 7(b) were proven against the appellant and that they amounted to poor professional performance. Donnelly J held that the decision was rational, reasonable and proportionate. Donnelly J held that the imposition of the sanction was also proportionate. Donnelly J held that the appellant was not granted leave to apply for judicial review on the basis of breach of his right to equality before the law pursuant to Article 40.1 of the Constitution. Donnelly J held that ss. 71 and 75 of the 2007 Act are not repugnant to the Constitution on the ground that the appellant was not afforded a right to appeal where the sanction imposed on him in respect of the Committee’s finding of poor professional performance was one of advice only. Donnelly J held that the lack of a right to appeal in those circumstances was not a violation of Article 6.1 of the Convention.

Donnelly J dismissed the appeal in its entirety. Donnelly J held that the respondents were entitled to their costs of the appeal, to be adjudicated in default of agreement.

Appeal dismissed.

UNAPPROVED

JUDGMENT of Ms. Justice Donnelly delivered on the 28 ^th day of July, 2021

INTRODUCTION

1 . The origin of this appeal is an inquiry in connection with the appellant, a registered medical practitioner (hereinafter “doctor”), held in accordance with the Medical Practitioners Act, 2007, (hereinafter, “the 2007 Act”). Nine allegations had been included in the notice of inquiry; some of these allegations were further subdivided. One sub-divided allegation led to a finding by the Fitness to Practise Committee (hereinafter, “the Committee”) of poor professional performance by the appellant. On consideration of that finding, the Medical Council (hereinafter, “the Council”) imposed the sanction of “advice” upon the appellant and did not impose conditions on his registration. A doctor upon whom such a sanction is imposed without any conditions does not have an entitlement to appeal against the finding and sanction to the High Court. The absence of an appeal is one of the matters of which he complains in these proceedings.

2 . At the relevant time, the appellant was employed as a registrar in medical oncology at a regional hospital in the State. The sub-allegations upon which the finding was made were contained in allegation 7(b) in the following terms:

“ On or around 6 November 2012 in respect of Patient BK who was transferred from [ ], [ ], County [], [Dr. Ahmed]: […]

b. Failed to request the following basic tests to include, but not limited to:

i. Blood test(s); and/or

ii. Urine test(s); and/or

iii. Kidney function test(s)”.

3 . The patient, BK was a 28 year old man who had been transferred from a district hospital. He had a CT scan in the district hospital which showed a large abdominal mass apparently rapidly growing with a length of history for 6–8 weeks of abdominal and back pain and weight loss.

4 . On allegation 7(b), the Committee found as follows:-

“Allegation 7(b) was proven as to fact. The reason: The totality of the evidence established this beyond a reasonable doubt. Finding: This amounted to poor professional performance. Reason: The evidence of Dr. Henry established that this was a very serious failure to meet standards of competence that can reasonably be expected of an oncology registrar.”

Dr. Henry was an expert witness, called by the Chief Executive Officer (“CEO”) of the Council, who gave evidence on oath at the hearing subsequent to the provision by him of a report concerning his opinion as to whether the facts at issue (if proven) would amount to misconduct or poor professional performance.

5 . The appellant challenged by way of judicial review, the findings and report of the Committee and the decision of the Council to impose the said sanction. In the light of the absence of an appeal against the finding of a sanction of “advice”, the appellant also challenged the constitutional validity of sections 71 and 75 of the 2007 Act and the compatibility of those provisions with the European Convention on Human Rights (the “Convention”). The third, fourth and fifth respondents (“the State respondents”) were joined by Order of the High Court in respect of the constitutional and Convention claims.

JUDGMENT OF THE HIGH COURT

6 . In a judgment dated the 16 ^th February, 2018, the High Court (Meenan J.) concluded that there was no basis for granting any of the reliefs sought and dismissed the proceedings

7 . In dismissing the application for certiorari of the findings of the Committee and the Council, Meenan J. applied the principles set out by the Supreme Court in Sweeney v. Fahy [2014] IESC 50. He held at para. 29:-

“[b]earing in mind the clear distinction between an application for judicial review and an appeal and given the evidence before the [Committee] it could not be stated that the finding made by the [Committee] was irrational or unreasonable. There was clearly evidence before the Committee upon which it could reach the decision it did. It follows the applicant is not entitled to an order of certiorari quashing the report of the [Committee] herein.”

8 . In refusing the application for a declaration of repugnancy to the Constitution, Meenan J. followed the decision of Kearns P. in Akpekpe v. Medical Council [2014] 3 I.R. 420 (hereinafter, “ Akpekpe”). From the authorities referred to him, and in the light of the wording of Article 6 of the Convention, Meenan J. refused the application for a declaration of incompatibility within the meaning of s. 5 of the European Convention on Human Rights Act, 2003 (hereinafter, “the 2003 Act”).

ISSUES

9 . Having regard to the reliefs claimed and the grounds upon which they were sought, the issues which arise in the appeal can be summarised as follows:

• (i) whether the appellant was out of time for the bringing of this judicial review;

• (ii) whether there is any basis for granting any of the reliefs sought in connection with the said findings of the Committee and/or the said decision of the Council;

• (iii) whether:-

  (a) sections 71 and 75 of the 2007 Act breach the Constitution insofar as they deprive the appellant of an asserted right of appeal in circumstances where a finding of poor professional performance was made against the appellant, but the sanction imposed is not amenable to appeal to the High Court, and

  (b) the extent of the grounds upon which it was pleaded that the said sections breached the Constitution; and

• (iv) whether sections 71 and 75 of the 2007 Act are compatible with Article 6 of the Convention.

THE LEGAL PROVISIONS

10 . Section 57 of the 2007 Act provides for a complaint relating to a doctor to be made to a Preliminary Proceedings Committee (“the PPC”). There are a number of grounds upon which a complaint may be made. The ground at issue in these...