W.F. v Fitness to Practise Committee of The Medical Council

JurisdictionIreland
JudgeMr. Justice Gilligan
Judgment Date15 February 2008
Neutral Citation[2008] IEHC 31
CourtHigh Court
Docket Number[No. 837 J.R./2007]
Date15 February 2008

[2008] IEHC 31

THE HIGH COURT

[No. 837 J.R./2007]
F (W) v Fitness to Practice Committee of the Medical Council & Medical Council
JUDICIAL REVIEW

BETWEEN

W.F.
APPLICANT

AND

THE FITNESS TO PRACTISE COMMITTEE OF THE MEDICAL COUNCIL

AND

THE MEDICAL COUNCIL
RESPONDENTS

MEDICAL PRACTITIONERS ACT 1978 PART V

MEDICAL PRACTITIONERS ACT 1978 S45

MEDICAL PRACTITIONERS ACT 1978 S45(1)

RSC O.84 r21(1)

G v DPP & DISTRICT JUDGE KIRBY 1994 1 IR 374

O'CALLAGHAN v DISCIPLINARY TRIBUNAL & ORS 2002 1 IR 1 2002 1 ILRM 89 2001/18/5106

O'DONOGHUE v VETERINARY COUNCIL 1975 IR 398

PROFESSIONS

Medical profession

Disciplinary proceedings - Doctor - Fitness to practise inquiry - Applicant previously refused leave for judicial review - Members sitting on first instance hearing to decide whether prima facie case against applicant also sitting on substantive hearing - Medical council deemed applicant for purposes of legislation - Suggestion phrase "inter alia" used in giving reasons for inquiry implied additional undisclosed and impermissible grounds for inquiry - Delay - Whether applicant could have advanced grounds in first judicial review - Whether overlap between members deciding existence of prima facie case and members conducting substantive inquiry necessary or permissible - Whether use of phrase âÇÿinter alia' grounds for relief - O'Callaghan v Disciplinary Tribunal [2002] 1 IR 1 applied; O'Donoghue v Veterinary Council [1975] IR 398 distinguished - Medical Practitioners Act 1978 (No 4), s 45 - Relief refused (2007/837JR - Gilligan J - 15/2/2008) [2008] IEHC 31

F (W) v Fitness to Practise Committee of the Medical Council

The applicant sought to quash inter alia a decision of the respondent to proceed with an Inquiry under Part V of the Medical Practitioners Act 1978 regarding complaints against the applicant. The applicant had already brought judicial review proceedings to the Supreme Court. The issue arose as to bias and the presence of a specified person on the committee to hear the complaint.

Held by Gilligan J. that the applicant had not made out a case for judicial review and there was no substance to the points made. In previous proceedings similar arguments had been made. The Medical Council had taken a decision that a prima facie case existing to hold an inquiry.

Reporter: E.F.

Mr. Justice Gilligan
1

1. Pursuant to order of this Court (Peart J.) as made on the 9th day of July, 2007 the applicant was given leave to apply for judicial review for the following reliefs:

2

(i) An Order of Certiorari quashing the decision of the first named Respondent dated the 8th day of May, 2007 wherein the first named Respondent decided to proceed with an Inquiry under Part V of the Medical Practitioners Act, 1978regarding alleged complaints against the Applicant.

3

(ii) An Order of Certiorari quashing the decision of the first named Respondent dated the 19th of January, 1996 wherein the first named Respondent decided that all applications pursuant to Section 45 of the Medical Practitioners Act, 1978are to be deemed applications of the second named Respondent.

4

(iii) An Order of Prohibition restraining the first named Respondent from taking any further steps by proceeding with the aforementioned Inquiry pursuant to Section 45 of the Medical Practitioners Act,1978

5

(iv) An Injunction restraining the first named Respondent from proceeding to hold an Inquiry in relation to the Applicant pursuant to Section 45 of the Medical Practitioners Act,1978.

6

2. The background circumstances are that the applicant is a medical doctor. The first named respondent issued a notice of intention to hold an inquiry into alleged professional misconduct against the applicant. The notice being dated the 18th day of December, 2006.

7

3. The alleged professional misconduct involves a number of alleged sexual assaults. The applicant has at all times denied the substance of all the allegations against him, and the matters were investigated by an Garda Siochana, and the applicant was informed by letter dated the 22nd day of March, 2006 that the Director of Public Prosecutions did not intend to prosecute him in respect of any of the allegations set out against him.

8

4. The applicant previously sought leave for judicial review against the respondents herein, and in proceedings bearing Record No. 2007 456 J.R., and involving the same parties this Court (McKechnie J.) refused the applicant leave to apply for judicial review and on appeal the Supreme Court on the 4th day of May, 2007 dismissed the appeal.

9

5. In these proceedings there are two points that arise and I shall refer to them as "(1) the inter alia point and (2) the deemed applicant point".

10

6. Section 45(1) of the Medical Practitioners Act, 1978provides that:-

11

"The Council or any person may apply to the Fitness to Practise Committee for an inquiry into the conduct of a registered medical practitioner on the grounds of -

(a) his alleged professional misconduct, or
12

(b) his fitness to engage in the practise of medicine by reason of physical or mental disability.

13

(c) and the application shall subject to the provisions of this Act be considered by the Fitness to Practise Committee.

14

7. An application was made to the Fitness to Practise Committee in 2003 concerning the applicant, and on the proposal of the Vice President seconded by a member of the Council it was decided to apply to the Fitness to Practise Committee for an inquiry into the conduct of the applicant in accordance with the provision of s. 45 of the Medical Practitioners Act, 1978

15

8. Subsequently, on the 29th day of June, 2006 the Fitness to Practise Committee comprising inter alia Mr. Brendan Healy as Chairman, Mr. Hugh Bredin a medical doctor and Ms. Mary Rose Carroll a lay representative, came to the conclusion that "there is a prima facie case for the holding of an inquiry under part V of the Act regarding the following complaints on the grounds inter alia of the practitioners alleged professional misconduct and or unfitness to engage in the practise of medicine by reason of a physical or mental disability and accordingly directed that the provisions of s. 45 for the holding of an inquiry be complied with."

16

9. The nature of the complaints concerning the allegations fully were set out.

17

10. A notice for particulars was then raised on the applicants behalf on the 29th day of March, 2007 and Question 1 asked "who applied to the Fitness to Practise Committee for an enquiry" and the reply to this particular as furnished in a letter as dated the 4th day of April, 2007 was "as confirmed in the notice of enquiry, the Medical Council is the applicant for this and indeed every inquiry which is held by the Fitness to Practise Committee. In this regard please see attached copy resolution of the Medical Council dated the 18th day of January, 1996."

18

11. The Fitness to Practise Committee Memorandum of the 18th day of January, 1996 sets out at para. 4.2 thereof that:

"The Committee having taken legal advice on s. 45(1) of the Act, decided all complaints would be deemed applications by the Medical Council for an inquiry into the conduct of a registered medical practitioner. The Committee then directed the registrar to deal with all complaints including those presently under consideration accordingly."

19

12. The applicant then moved to apply to this Court for orders of certiorari and prohibition in respect of the decision of the first named respondents as made on the 29th day of June, 2006, to the effect that there was a prima facie case for the holding of an inquiry pursuant to part V. of the Medical Practitioners Act, 1978, regarding alleged complaints against the applicant and directing that the provisions of s. 45 of the Act for the holding of an inquiry be complied with.

20

13. In essence the case being made out on the applicant's behalf was that the first named respondent had taken into account matters other than matters which the first named respondent was entitled to take into account, by reason of the reference to "inter alia". The applicant made out the case that the decision was unfair to the applicant in that it was effectively purported to have been made on inter alia unspecified grounds.

21

14 The inquiry was due to proceed on the 8th day of May, 2007 and the application for leave to apply for judicial review was made on the 30th day of April, 2007, before McKechnie J. who refused the application, but in doing so he made certain observations as follows:-

22

1. On the 29th of June, 2006 the Fitness to Practise Committee held a meeting. In relation to (its written decision of the that date), the applicant relies on the words inter alia as submitting that the Committee acting ultra vires Section 45 of the 1978 Act in taking into account irrelevant matters. It is submitted that irrelevant matters were taken into consideration.

23

2. On the 19th December, 2006 the applicant got notice of intention to hold an inquiry. All of the allegations therein set out come within the powers of the Fitness to Practise Committee under section 45 (of the Medical Practitioners Act, 1978). It is accepted by the applicant that all of those allegations refer to alleged professional misconduct.

24

3. Under Order 84.21.1 of the Rules of the Superior Courts, the first threshold for the applicant is to prove that a prompt application was made. The court is of the view that there is no good reason to extend the time in the present case. There is no reference to extending the time in the Statement of Grounds. There was a failure to satisfy me that the time should be extended. The application was not made promptly. No good reason to extend the time is set out in paragraphs 25 or 26 of the applicant's grounding affidavit. Briefs were sent to Counsel on the 12th...

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