Walter Prendiville v The Medical Council, Ireland and Attorney General

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Kelly
• Judgment Date: 14 December 2007
• Neutral Citation: [2007] IEHC 427
• Date: 14 December 2007
• Docket Number: [2007 Nos. 252 & 260 JR]

[2007] IEHC 427

THE HIGH COURT

[No. 252 J.R./2007]

[No. 260 J.R./2007]

Prendiville & Murphy v Medical Council & Ors

JUDICIAL REVIEW

BETWEEN

WALTER PRENDIVILLE

APPLICANT

AND

THE MEDICAL COUNCIL, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

BETWEEN

JOHN FRANCIS MURPHY

APPLICANT

AND

THE MEDICAL COUNCIL, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

MEDICAL PRACTITIONERS ACT 1978 S51

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6.1

MEDICAL PRACTITIONERS ACT 1978 PART V

MEDICAL PRACTITIONERS ACT 1978 S45(3)(c)

MEDICAL PRACTITIONERS ACT 1978 S46

MEDICAL PRACTITIONERS ACT 1978 S47

MEDICAL PRACTITIONERS ACT 1978 S48

O'CONNOR v MEDICAL COUNCIL UNREP FINNEGAN 17.7.2007 2007 IEHC 304

MEDICAL PRACTITIONERS ACT 1978 PART II

MEDICAL PRACTITIONERS ACT 1978 S9

MEDICAL PRACTITIONERS ACT 1978 S13

MEDICAL PRACTITIONERS ACT 1978 S2

MEDICAL PRACTITIONERS ACT 1978 S45

MEDICAL PRACTITIONERS ACT 1978 S45(2)

MEDICAL PRACTITIONERS ACT 1978 S45(3)

MEDICAL PRACTITIONERS ACT 1978 S45(4)

MEDICAL PRACTITIONERS ACT 1978 S45(5)

MEDICAL PRACTITIONERS ACT 1978 S45(7)

MEDICAL PRACTITIONERS ACT 1978 S45(9)

MEDICAL PRACTITIONERS ACT 1978 S48(2)

MEDICAL PRACTITIONERS ACT 1978 S48(1)

MEDICAL PRACTITIONERS ACT 1978 S49

MEDICAL PRACTITIONERS ACT 1978 S53

MEDICAL PRACTITIONERS ACT 1978 S54

MEDICAL PRACTITIONERS ACT 1978 S55

MEDICAL PRACTITIONERS ACT 1978 S13(7)

MEDICAL PRACTITIONERS ACT 1978 S13(2)(b)

M v MEDICAL COUNCIL 1984 IR 485

BARRY v MEDICAL COUNCIL 1998 3 IR 368

CASEY v MEDICAL COUNCIL 1999 2 IR 534

CONSTITUTION ART 40

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

MCDONALD v BORD NA GCON 1965 IR 217

COURTS OF JUSTICE ACT 1924 S24

R (SNAITH) v ULSTER POLYTECHNIC 1981 NI 28

MOONEY v AN POST 1994 ELR 103

POLYMARK (IRELAND) LTD v LABOUR COURT 1987 ILRM 357 1986/8/1584

GEORGOPOLOUS v BEAUMONT HOSPITAL BOARD 1998 3 IR 132 1994 1 ILRM 58 1994 ILT 177 1993/12/3656

NWABUEZE v GENERAL MEDICAL COUNCIL 2000 1 WLR 1760

WATSON v GENERAL MEDICAL COUNCIL TLR 7.10.2005 2005 EWHC 1896

MEDICAL PRACTITIONERS ACT 1978 S69(2)

O LAOIRE v MEDICAL COUNCIL UNREP KEANE 27.1.1995 2000/21/7913

LYNCH & DALY, IN RE 1970 IR 1

DOUGHTY v GENERAL DENTAL COUNCIL 1987 3 AER 843

DENTISTS ACT 1984 (UK)

ROYLANCE v GENERAL MEDICAL COUNCIL 2000 1 AC 311

PEREZ v BORD ALTRANAIS 2005 4 IR 298

MOORE v MEDICAL COUNCIL UNREP HANNA 19.12.2006 2006 IEHC 439 (EX TEMPORE)

BARRY v MEDICAL COUNCIL UNREP CHARLETON 2.3.2007 2007 IEHC 74

MCCORMACK v GARDA SIOCHANA COMPLAINTS BOARD 1997 2 IR 489

LIBMAN v GENERAL MEDICAL COUNCIL 1972 2 WLR 272 1972 1 AC 217

RAI v GENERAL MEDICAL COUNCIL UNREP SCARMAN 14.5.1984

GUPTA v GENERAL MEDICAL COUNCIL 2002 1 WLR 1691

SELVANATHAN v GENERAL MEDICAL COUNCIL 2001 LLOYD'S REP MED 1 2001 59 BMLR 95

RAJAH v ROYAL COLLEGE OF SURGEONS 1994 1 IR 384

P & L & B v MIN JUSTICE 2002 1 IR 164 2002 1 ILRM 38

MEDICAL PRACTITIONERS ACT 1978 S45(3)(c)

RSC O.84 r26(4)

USK & DISTRICT RESIDENTS ASSOCIATION LTD v BORD PLEANALA & ORS UNREP KELLY 14.3.2007 2007 IEHC 86

PROFESSIONS

Disciplinary proceedings

Medical profession - Fitness to Practise Committee - Alleged misconduct - Inquiry - Procedure - Finding of professional misconduct - Whether decision and report of committee valid - Whether incorrect standard of professional misconduct applied - Whether committee failed to give reasons for conclusions reached - Whether committee obliged to give reasons for conclusion - Whether decision unreasonable and irrational - Whether moral turpitude standard or expected standards applicable - Whether unreasonable and unfair to subject applicants to test of professional misconduct which Council had not promulgated - Medical Council - Decision - Whether Council bound by substantive decision of committee and confined to consideration of penalty - Whether applicants denied opportunity of having merits of cases examined by Council - Fair procedures - Legal advice provided to Council in circumstances unknown to applicants outside hearing and not disclosed - Whether applicants had opportunity of addressing correctness of advice tendered - Whether advice independent - Whether Council wrong in permitting members of committee who adjudicated upon complaint to sit as members of Council which considered findings -Whether perception of bias - Whether Council guilty of illegality in failing to provide any reasons for its decision - R (Snaith) v Ulster Polytechnic [1981] NI 28, Mooney v An Post [1994] ELR 103 and State (Polymark Ltd) v Labour Court [1987] ILRM 357 applied; Georgopolous v Beaumont Hospital Board [1998] 3 IR 132, Nwabueze v General Medical Council [2000] 1 WLR 1760, Watson v General Medical Council [2005] EWHC 1896 (Admin), [2006] ICR 113, O'Laoire v Medical Council (Unrep, Keane J, 27/1/1995), Rajah v College of Surgeons [1994] 1 IR 384, FP v Minister for Justice [2002] 1 IR 164, McCormack v Garda Síochána Complaints Board [1997] 2 IR 489 and Usk and District Residents Association Ltd v An Bord Pleanála [2007] IEHC 86, (Unrep, Kelly J,14/3/2007) considered; Moore v Medical Council [2006] IEHC 439, (Unrep, Hanna J, 19/12/2006), Barry v Medical Council [2007] IEHC 1, (Unrep, Charleton J, 2/3/2007), Roylance v General Medical Council (No 2) [2000] AC 311 and Gupta v General Medical Council [2002] 1 WLR 1691 distinguished -Medical Practitioners Act 1978 (No 4), ss 13, 45 and 69 - Certiorari granted, matter not remitted (1007/252 & 260JR - Kelly J - 14/12/2007) [2007] IEHC 427

Prendiville v Medical Council

1 Mr. Justice Kelly delivered the 14th day of December, 2007.

Introduction

2 Professor Walter Prendiville (Prof Prendiville) and Dr. John Francis Murphy (Dr. Murphy) both seek to quash decisions of the Medical Council (the Council) confirming a report of the Council's Fitness to Practise Committee (FPC) finding them guilty of professional misconduct. If necessary, they also seek to quash the report of the FPC. In the event of their applications for certiorari not being successful, they seek declaratory orders concerning the alleged unconstitutionality of certain provisions of the Medical Practitioners Act, 1978 (the Act), They also seek a declaration that those provisions of the Act are incompatible with the State's obligations pursuant to Article 6(1) of the European Convention on Human Rights and Fundamental Freedoms (the Convention). As these latter questions will only arise if the applicants fail to obtain certiorari on conventional grounds, consideration of them was, by agreement, postponed to await my findings on that issue.

3 There are many similarities between the two cases but they are not identical. Both applications for judicial review were heard together and joint submissions were made by the applicants.

Professor Prendiville

4 Professor Prendiville has had a distinguished medical career specialising in the field of obstetrics and gynaecology. He is an associate professor of obstetrics and gynaecology at the Royal College of Surgeons in Ireland and at the Department of Obstetrics and Gynaecology at the Coombe Women's Hospital in Dublin. He is chairman of the Department of Gynaecology at Tallaght Hospital and is a consultant in those hospitals. He has had a major research interest in the prevention of primary post partum haemorrhage. He has published widely in this field and has twice been an advisor to the World Health Organisation and a member of its task force on the subject. He has many publications to his name.

Dr. Murphy

5 Dr. Murphy is a consultant obstetrician and gynaecologist at both the National Maternity Hospital and St. Vincent's University Hospital in Dublin. He holds Fellowships of the Royal College of Physicians of Ireland and the Royal College of Obstetrics and Gynaecology. He has had a distinguished career for more than 40 years with over 50 articles to his name in peer reviewed publications. As a mark of the esteem in which he was held by his colleagues he was elected President of the Royal College of Physicians of Ireland but because of the decision of the Council in suit he felt obliged to resign from that position.

Events of November 1998

6 In November, 1998 the name of Dr. Michael Neary (Dr. Neary) was not well known, as it is now, to the general public. He was then a consultant obstetrician and gynaecologist at Our Lady of Lourdes Hospital in Drogheda. He had served in that capacity for many years and had an extensive public and private practice. He was a busy, hard working consultant operating a 1 in 3 rota at that hospital.

7 For a time both Dr. Neary and Dr. Murphy served on the Council of the Irish Hospital Consultants Association (IHCA). Dr. Murphy met him in that capacity and also at a number of medical seminars. It was his belief that Dr. Neary enjoyed a very sound professional reputation based on first hand reports which he had received from both medical colleagues and midwives attached to the Drogheda hospital and patients of his practice.

8 On the 3 ^rd November, 1998 Mr. Finbar Fitzpatrick the Secretary General of the IHCA contacted Dr. Murphy. He told him that Dr. Neary had returned from leave and was about to be suspended on pay from his position as a consultant at the Drogheda hospital. That hospital had formerly been in the care of the Medical Missionaries of Mary but was taken over by the North Eastern Health Board. It was well known in medical circles that, since the time of that transfer of ownership, relations between the medical staff and that health board were very strained. Mr. Fitzpatrick told Dr. Murphy that the suspension of Dr. Neary was due to take place almost immediately notwithstanding the fact that a peer review of his practice was due to be carried out very soon by the Institute of Obstetrics and Gynaecology in Dublin (the...