Van Eeden v The Medical Council and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Allen
• Judgment Date: 06 October 2023
• Neutral Citation: [2023] IECA 230
• Court: Court of Appeal (Ireland)
• Docket Number: Appeal Number: 2021/286

Between

Samuel Van Eeden

Plaintiff/Appellant

and

The Medical Council, Ireland and The Attorney General

Defendants/Respondents

[2023] IECA 230

Haughton J.

Binchy J.

Allen J.

Appeal Number: 2021/286

THE COURT OF APPEAL

CIVIL

Fitness to practice – Inquiry – Professional misconduct – Appellant appealing against the judgment and order dismissing his action against the respondents – Whether there was an absence of fair procedures

Facts: The plaintiff/appellant, Dr Van Eeden, a registered medical 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 Attorney General. The object of the action was to restrain an inquiry by a Fitness to Practice Committee of the Medical Council into various allegations of professional misconduct on the part of Dr Van Eeden, including the importation into the State of an unauthorised medicine and the prescription of unauthorised medicines to his patients. The proceedings were, in form, an action commenced by the issue of a plenary summons seeking a variety of declarations and damages, rather than an application for leave to apply by way of judicial review to prohibit the inquiry. Dr Van Eeden’s core argument was that there ought not to be, and ought never to have been, an inquiry by the Fitness to Practice Committee into the allegations which had been made against him. The 35 grounds of appeal (and numerous sub-grounds) were set out under eight headings: (i) fair procedures and access to the courts; (ii) the amendment application; (iii) res judicata and A.A. v The Medical Council [2002] 3 I.R. 1; (iv) invidious discrimination; (v) Articles 34 and 37 of the Constitution; (vi) proceedings erroneously viewed and treated as judicial review; (vii) abuse of process; and (viii) the Health Products Regulatory Authority material. The orders sought by the amended notice of appeal included, variously, the remittal of the case to the High Court and orders in the terms of the reliefs sought by the summons. Further, the amended notice of appeal proposed that the Court of Appeal should make: “Orders enabling the variation of any of the grounds pleaded in this notice of appeal and/or reliefs pleaded in the plenary summons herein as the court sees fit and to such a degree as may be necessary to enable the issues in the case to be correctly adjudicated on.”

Held by Allen J that this conveyed an acknowledgement that neither the plenary summons nor the notice of appeal disclosed what the issues were. What appeared to Allen J to be contemplated was that the court should allow Dr Van Eeden, at the end of his appeal, to say what his case was and what reliefs he wanted but may or may not have asked for, which was plainly impermissible. Allen J held that the foundation – or at least the premise – of Dr Van Eeden’s case was that the Medical Council was not entitled to – or at least ought not to – inquire into matters for which he had previously been tried and acquitted by the District Court. Allen J held that, as the High Court judge found, it was perfectly clear from a comparison of the criminal charges and the allegations set out in the notice of inquiry that the allegations of professional misconduct were not based on the alleged offences of which Dr Van Eeden was acquitted. That being so, Allen J held that the action and the appeal were both built on sand.

Allen J dismissed the appeal on all grounds and affirmed the order of the High Court. The respondents having succeeded on all grounds, Allen J could think of no reason why they might not be entitled to an order for their costs.

Appeal dismissed.

NO REDACTION NEEDED

JUDGMENT of Mr. Justice Allen delivered on the 6 ^th day of October, 2023 .

Introduction

1 . This is an appeal by Dr. Samuel Van Eeden, who is a registered medical practitioner, against the judgment of the High Court (Twomey J.) delivered on 24 ^th September, 2021 ( [2021] IEHC 606) and consequent order made on 13 ^th October, 2021 dismissing his action against the Medical Council, Ireland and the Attorney General.

2 . Contrary to the vehement insistence of the late Mr. Alan Toal B.L. that it was not, the object of the action was plainly to restrain an inquiry by a Fitness to Practice Committee of the Medical Council into various allegations of professional misconduct on the part of Dr. Van Eeden, including the importation into the State of an unauthorised medicine and the prescription of unauthorised medicines to his patients.

3 . The proceedings were, in form, an action commenced by the issue of a plenary summons seeking a variety of declarations and damages, rather than an application for leave to apply by way of judicial review to prohibit the inquiry: but Dr. Van Eeden's core argument – in which he has been consistent from the outset – is that there ought not to be, and ought never to have been, an inquiry by the Fitness to Practice Committee into the allegations which have been made against him: and he wants it stopped.

4 . The foundation – or at least the premise – of Dr. Van Eeden's case was that the Medical Council was not entitled to – or at least ought not to – inquire into matters for which he had previously been tried and acquitted by the District Court. As I will come to – and as the High Court judge found – it is perfectly clear from a comparison of the criminal charges and the allegations set out in the notice of inquiry that the allegations of professional misconduct are not based on the alleged offences of which Dr. Van Eeden was acquitted. That being so, the action and the appeal were both built on sand.

5 . The events the subject of the proceedings date back to 2012 and the Medical Council's interest to 2014 but the inquiry has been beset by delays.

The facts

6 . On 12 ^th June, 2012 a piece of luggage owned by Dr. Van Eeden's wife, which had come from Bangladesh and which, by all accounts, had temporarily gone astray, was searched by Customs officers at Dublin Airport and was found to contain a number of unauthorised prescription only medicinal products.

7 . The discovery prompted an investigation by the Health Products Regulatory Authority (“HPRA”) (which was at that time known as the Irish Medicines Board) in the course of which a number of witness statements were taken, including a statement under caution from Dr. Van Eeden.

8 . On 3 ^rd April, 2014 Dr. Van Eeden was summoned to appear before the Dublin Metropolitan District Court, to answer sixteen charges that he had, on or about 12 ^th June, 2012, procured and imported into the State eight identified prescription only medicinal products otherwise than in accordance with a marketing authorisation, contrary to regulation 6(2) of the Medicinal Products (Control of Placing on the Market) Regulations, 2007 ( S.I. No. 540 of 2007), and without a manufacturer's authorisation, contrary to regulation 4(c) of the Medicinal Products (Control of Manufacture) Regulations, 2007 ( S.I. No. 539 of 2007).

9 . On 22 ^nd October, 2014 he was acquitted on all charges.

10 . In the meantime, a newspaper report of the prosecution published on 8 ^th July, 2014 had come to the attention of the Medical Council and at its meeting on 10 ^th July, 2014 the Council referred the matter to its Preliminary Proceedings Committee for consideration as to whether the matter warranted further action.

11 . On 5 ^th December, 2014 the HPRA submitted a report to the Medical Council entitled “Importation of unauthorised prescription only medicinal products”, attached to which were twenty-five statements, including the cautioned statement taken from Dr. Van Eeden.

12 . On 6 ^th October, 2015 the Preliminary Proceedings Committee decided that the matter did require further action and directed that a sworn inquiry should be held into whether Dr. Van Eeden had engaged in conduct constituting professional misconduct or poor professional performance.

13 . On 22 ^nd September, 2016 Dr. Van Eeden was given notice of an inquiry to be held by the Fitness to Practice Committee under Part 8 of the Medical Practitioners Act, 2007. The notice set out seven allegations and charged Dr. Van Eeden that arising from one or more of those allegations “individually and/or cumulatively and/or in combination”:-

• (a) He had engaged in conduct which doctors of experience, competence and good repute consider disgraceful or dishonourable; and/or

• (b) That his conduct amounted to a serious falling short of the standards of conduct expected among doctors; and/or

• (c) That he had failed to meet the standards of competence (whether in knowledge and skill or the application of knowledge and skill or both) that could reasonably be expected of a medical practitioner practising medicine of the kind practiced by him.

14 . Two of the seven particulars were later withdrawn, leaving five (or really four) which were, in summary:-

• 1. That in or around February, 2012 Dr. Van Eeden had imported into the State a quantity of Lidocaine without a manufacturer's authorisation, contrary to regulation 4(c) of the Medicinal Products (Control of Manufacture) Regulations, 2007 ( S.I. No. 539 of 2007).

• 2. That at some time during or after February, 2012 he had administered a quantity of Lidocaine, imported from Dhaka, Bangladesh, without marketing authorisation, to one or more patients in his care;

• 3. That in or around June, 2012 it had been his intention to administer to one or more patients in his care six identified medicinal products which did not enjoy a marketing authorisation within the meaning of the Medicinal Products (Control of Manufacture) Regulations, 2007 ( S.I. No. 539 of 2007).

• 4. That in his Annual Retention Application Form for Registered Medical...