Van Eeden v Fitness to Practice Committee and Medical Council

• Jurisdiction: Ireland
• Judge: Ms. Justice Faherty
• Judgment Date: 11 October 2017
• Neutral Citation: [2017] IEHC 632
• Court: High Court
• Docket Number: [2017 No. 305 J.R.]
• Date: 11 October 2017

[2017] IEHC 632

THE HIGH COURT

Faherty J.

[2017 No. 305 J.R.]

IN THE MATTER OF AN INQUIRY PURSUANT TO PART 8 OF THE MEDICAL PRACTITIONERS ACT 2007

BETWEEN

DR. SAMUEL VAN EEDEN

APPLICANT

AND

FITNESS TO PRACTICE COMMITTEE

AND

MEDICAL COUNCIL

RESPONDENTS

Health – Medical Practitioners Act 2007 – Professional misconduct – Conduct of inquiry – Acquittal of charges – Re-investigation – Res judicata

Facts: The applicant sought leave to apply for an order of prohibition for preventing the first respondent from proceeding to hear the matters alleged against the applicant until such time it had been determined whether the dicta in DPP v JC [2015] IESC 31 had applied to the present case. The first respondent argued that the present application was premature as no substantive decision had been rendered by the first respondent warranting a judicial review in relation to the applicability of the doctrine of res judicata.

Ms. Justice Faherty refused to grant the desired relief to the applicant. The Court held that no decision had yet been rendered by the first respondent and thus, there were no grounds on which leave could be granted. The Court noted that the applicant had not met the test of arguability so as to grant him leave.

JUDGMENT of Ms. Justice Faherty delivered on the 11th day of October, 2017

1 This is an application for leave to seek judicial review by way of certiorari and declaratory relief in respect of a decision rendered by the first named respondent on 31st March, 2017.

Background

2 On 12th June, 2012, luggage owned by the applicant's wife was detained by a Customs Officer at Dublin Airport. The luggage contained eight medicinal products that had been purchased in Bangladesh. The applicant clarified in an interview under caution on 24th July, 2012, that he had ordered the medicinal products from an entity called 'Prescription Point' in Dakar, Bangladesh. He had arranged for his wife to call and collect and pay for the products and transport them in her luggage back to Ireland. In the course of an interview, under caution, the respondent indicated that he had purchased other medicinal products from Prescription Point in Dakar, Bangladesh in February, 2012.

3 On 2nd April, 2014, the Health Product Regulatory Authority (HPRA), or the Irish Medicines Board, as it then was, issued a summons out of the District Court Office requesting the attendance of the applicant at the District Court in Swords on 26th May, 2014, to answer sixteen charges in total, namely two charges of importing and procuring each of the eight medicinal products that had been seized, in contravention of a specific statutory code regulating medicinal products within the State.

4 The fact of the prosecution by the HPRA was reported by the Irish Times on 8th July, 2014, and came to the attention of the second named respondent. In the course of a meeting of 10th July, 2014, the second named respondent decided to make a complaint to the Preliminary Proceedings Committee ('PPC') for consideration as to whether the matter warranted further action.

5 On 14th October, 2014, the District Court acquitted the applicant of all charges.

6 On 6th October, 2015, the PPC formed the opinion that there was a prima facie case to warrant further action being taken in relation to the complaint against the applicant and referred the matter to the first named respondent. The PPC directed that a full sworn inquiry should be held addressing the issue of whether the applicant had engaged in conduct constituting professional misconduct or poor professional performance.

7 On 4th August, 2016, the solicitors for the second named respondent furnished the applicant's solicitors with a request for the voluntary production of certain documents.

8 On 22nd September, 2016, the notice of inquiry under Part 8 of the Medical Practitioners Act 2007 ('the 2007 Act') was furnished to the applicant's solicitors, setting out the precise allegations against the applicant.

9 In the course of a hearing before the first named respondent on 30th September, 2016, to address the question of whether a production summons should be issued against the applicant, his counsel raised an objection that the notice of inquiry was flawed and, in particular, that the issues raised in the notice of inquiry were res judicata having regard to the acquittal of the applicant before the District Court in relation to certain charges arising from the factual matters the subject of the inquiry.

10 The application for a production summons was adjourned to facilitate the applicant raising a request for access to certain documents and for written submissions to be filed on his behalf outlining the reasons why the issues raised in the notice of inquiry were res judicata.

11 By letter dated 21st December, 2016, the applicant requested certain documents from the second named respondent. This was responded to on 3rd January, 2017.

12 Written submissions on the issue of res judicata and other matters were filed on behalf of the applicant on 20th March, 2017. The second named respondent's submissions were furnished on 24th March, 2017.

13 In his submissions, counsel for the applicant addressed the judgment of O'Caoimh J. in A.A. v. Medical Council [2002] 3 I.R. 1. A.A. concerned the applicability of the doctrine of res judicata in circumstances where the applicant in that case, a qualified doctor, had been charged and acquitted on two counts of sexual assault and was subsequently the subject of an inquiry under the then Medical Practitioners Act, 1978. O'Caoimh J. was not satisfied that the issue of res judicata arose. At this juncture, and in order to put the leave application in context, it is apt to set out the ruling of the learned Judge. He stated:

'With regard to the principle of res judicata, I am satisfied that there is not the same identity of parties between the criminal process and the proposed hearing before the Fitness to Practise Committee to give rise to the application of the principle of res judicata, even if one was to consider that the issues are the same. However, I am further of the opinion that the issues themselves are not the same. The proceedings to be taken are to ensure that no person unfit because of his conduct should be allowed to continue in practice in the particular calling which is in medical practice. I am also influenced by the decision in Health Care Complaints Commission v. Litchfield, (Unreported, Supreme Court of New South Wales, Court of Appeal, 8th August, 1997), which shows that in a case such as this the plea of autrefois acquit is not available and that furthermore by reason of the absence of a common identity between the parties in the criminal proceedings and in the proceedings before the Fitness of Practise Committee that there is no identity of parties to establish a res judicata. Further there is a different onus in the proceedings before the Fitness to Practise Committee and criminal proceedings insofar as the law is concerned. It is unclear as to what is the proposed onus or standard of proof proposed in the proceedings before the Fitness to Practise Committee in the instant case. I am further satisfied that the purpose of the proceedings before the Fitness to Practise Committee is protective as no element of punishment is involved.

I am further influenced by the decision in Saeed v. Inner London Education Authority [1985] I.C.R. 637, in holding that the rule against double jeopardy does not apply to the facts of the instant case. I am satisfied that it is competent for the respondent to have regard to the same factual matter as was before the Circuit Criminal Court in assessment of the issues before it in the contemplated proceedings.

The essential issue that remains is whether in light of the nature of the complaints to be investigated by the Fitness to Practise Committee it can be said to amount to an unfair or oppressive procedure to investigate in particular the charges of sexual or indecent assault alleged to have been perpetrated by the applicant on the two patients concerned. I am satisfied on the facts of this case that no assault other than those the subject matter of the criminal charges are sought to be inquired into. In other words what is at issue is whether the proposed inquiry into items one and two referred to should be precluded, whatever about the conduct of inquiry into the allegations of professional misconduct contained in items three to ten previously referred to in this judgment. In this regard what remains is not an issue as to whether the principles of double jeopardy have any application or whether the principle of autrefois acquit has any application to the facts of the instant case. I am satisfied that the issue is whether it would be manifestly unfair to permit the proposed inquiry or any part of it to proceed in light of the acquittal of the applicant on the charges preferred against him and tried by the Circuit Criminal Court. In conclusion, I am of the opinion that there is no reason why the Fitness to Practise Committee should not hear the proposed evidence and consider it in relation to the conduct of the applicant. I am of the opinion nevertheless that it would be essentially unfair were the respondent to enter upon a hearing to determine that the applicant was guilty of an assault of which he has been acquitted by the Circuit Criminal Court. This is not to say that the committee should not hear all of the evidence proposed to be given in assessment of whether the conduct alleged against the applicant is conduct which it considers to have been established and to determine whether in the light of this fact he is a person who may have been guilty of inappropriate behaviour in the context of the complaints set out at paragraphs three to ten inclusive in relation to each of the complainants who were allegedly examined by him...